Friday, January 13, 2017

Katherine Lynch on Multidisciplinary Cooperation in Child and Family Justice in Hong Kong (new book chapter)

"The Need for Multidisciplinary Cooperation in Child and Family Justice in Hong Kong"
Katherine Lynch
in Anne Scully-Hill, Sala Sihombing and Katherine Lynch (eds), Reforming Hong Kong's Child & Family Justice System (CUHK Press, 2016) ch 10.
Introduction: Hong Kong is facing significant pressure for meaningful reform of its child and family justice system to ensure that it serves the needs of Hong Kong children and families. The recent death of five-year old Yeung Chi-wai at home by ingestion of lethal amounts of crystal methamphetamine drugs (despite an earlier decision to remove him from his home) is but one tragic example of the deficiencies in Hong Kong’s child and family justice system. Speakers at a recent May 2016 meeting in Legislative Council highlighted the flaws in Hong Kong’s existing child protection system, including: outdated child protection laws, no legal duty to investigate cases of abuse or assess victims and make required provisions, lack of accountability and enforceability of the multidisciplinary case conference mechanism, lack of adequate social work resources and chronic shortages in residential homes and foster case for children in need.
     The sad death of Yeung Chi-wai emphasizes the pressing need for multidisciplinary collaboration and reform of Hong Kong’s child and family justice system and the introduction of new legislation that adequately protects children. Hong Kong’s Chief Justice Geoffrey Ma Tao-li has also emphasized that the family system in Hong Kong must ensure that it is accessible, fair, efficient and provides a simpler modernized process for contested family and matrimonial cases. In May 2015 the Chief Justice’s Working Party accepted 136 proposals for procedural reform, including a single set of self-contained family justice procedural rules. More recently, in November 2016, Hong Kong’s Labour & Welfare Bureau in consultation with the Department of Justice, Home Affairs Bureau, Social Welfare Department (SWD), Judiciary and other relevant departments, prepared the long awaited draft “Children Proceedings (Parental Responsibility) Bill” (the Children’s Bill) for public consultation. 
     The public consultation for the Children’s Bill highlights the serious implementation gap that exists between the extensive ideas for reforming Hong Kong’s child and family justice laws and actual implementation of that change. Many Hong Kong Law Reform Reports have recommended significant substantive and procedural change but until the announcement of the Children’s Bill in November 2016 very little legislative reform has been implemented. These reform reports highlight that vulnerable children and families dealing with separation and divorce are not merely encountering legal problems with social elements but, rather, these are profound social problems with one or more legal elements. In order to improve the experience of children and families in this context, a broader multidisciplinary system must be established rather than focusing primarily on the formal justice system. While some multistakeholder approaches have been established in Hong Kong, for example, the establishment of the Family Council in 2007 and the Comprehensive Child Development Service in West Kowloon in 2005, more formal collaborative inter-departmental measures need to be introduced in Hong Kong. This chapter deals with the need to create formal systemic multi-disciplinary processes and structures with a broad approach to collaboration and consultation with Hong Kong’s child and family justice system and considers comparative approaches in the UK and Canada as possible reform models.

New Book: Reforming Hong Kong's Child & Family Justice System (CUHK Press)

Reforming Hong Kong's Child & Family Justice System
Editors: Anne Scully-Hill, Sala Sihombing and Katherine Lynch
Chinese University of Hong Kong Press
November 2016, 408 pp
Book Description: This book presents a collection of papers from the 3rd Children’s Issues Forum held in Hong Kong in November 2015 focusing on reform of Hong Kong’s child and family justice system by integrating legal, comparative and multi-disciplinary approaches. Distinguished local and overseas jurists, legal practitioners and academics offer insights and perspectives on a range of issues affecting children, including: commentary on the proposed introduction of a new Children’s Ordinance in Hong Kong; the endemic problem of children living in poverty in Hong Kong; the exclusion and marginalization suffered by children in Hong Kong society; improving access to justice for Hong Kong children and allowing their voices to be heard; promoting the concept of parenting responsibilities in place of custody; reforming children’s dispute resolution procedures to establish more collaborative less adversarial process options; the important role of research in nurturing children and youth; and the need for increased multidisciplinary and inter-agency cooperation and collaboration in child and family justice systems. Comparative perspectives on child centric family justice reforms and policy developments are offered from leading jurists from Australia, Canada, Singapore, Israel, Macau and China.

Thursday, January 12, 2017

Strong Demand for Special Needs Trust for Intellectually Disabled (HKU Study)

A survey has found that there is a strong demand for a Special Needs Trust (SNT) in Hong Kong to provide affordable financial planning services for individuals with intellectual disability, and for the Government to act as the trustee of such a trust. 
     The survey, which targeted at parents of individuals with intellectual disability, was carried out in 2016 by Professor Lusina Ho and Associate Professor Rebecca Lee at the Faculty of Law of the University of Hong Kong (HKU) and the Concern Group of Guardianship System and Financial Affairs*.
     According to government statistics, between 71,000 and 101,000 people in Hong Kong are persons with intellectual disability. As existing mechanisms for the financial planning for these individuals are limited, many parents are concerned that after their passing, the care for their children with intellectual disability would be upset. Following the 2016 Policy Address of the Hong Kong Government, the Labour and Welfare Bureau is exploring the feasibility of setting up a trust to provide affordable financial services to these individuals.

What is a Special Needs Trust (SNT)?
An SNT is an affordable trust specially designed for people with special needs (including people with intellectual disability). An SNT can reduce the cost of administration by pooling funds contributed by parents for management and investment. However, like in an MPF, the amounts designated for each beneficiary will be segregated. 
     To participate in such trusts, the parents (as settlors) with the help of the trustee and its case manager devise a care plan, which sets out the expenditures needed for the dependent-beneficiary, write a letter of intent that appoints a caregiver to succeed them and explains how the trust fund should be disbursed for the benefit of the dependent and after the dependent passes away, and then transfer a nominal sum to set up the trust. They also execute a will to transfer a substantial amount from their estate into the trust on their death, e.g. they may instruct the executor to sell their flat and put the proceeds into the trust fund. Of course, the parents may also transfer substantial assets into the trust during their lifetime.
     When the parents pass away, the trust will be activated. The trustee will then make periodic distribution to the succeeding caregiver according to the letter of intent and care plan. The trustee’s case manager can make periodic visits to the dependent to check that the caregiver is looking after the dependent. Upon the dependent’s passing, the trustee will distribute the surplus to any person(s) indicated in the letter of intent.

Strong demand for a government-operated SNT
The first territory-wide questionnaire survey of parent opinions on setting up an SNT received an overwhelming response of over 2,500 valid returns. The survey results show that parents of individuals with intellectual disability consider existing legal mechanisms for financial planning inadequate. The results suggest that:
(1) there is a strong demand for an SNT to be established in Hong Kong;
(2) the parents’ top priority (and the exclusive preference of almost half of them) is for the Government to act as the trustee of the SNT;
(3) if the Government acts as trustee, nearly half of the parents surveyed are likely or very likely to participate in the SNT;
(4) the following features of the SNT are most attractive to parents:
  • the provision of a case manager to monitor the care received by their children;
  • the annual fees of the SNT do not exceed 1% of the managed assets; and
  • the presence of parent representation in trust management; and
(5) parents who are most likely to participate in the SNT are aged 40-59 looking after dependents with intellectual disability aged 39 or below, and the dependents are with mild or moderate intellectual disability and are not in receipt of any social welfare benefits
(except Disability Allowance).
     The research is supported by RGC General Research Fund 2016-2017 (project number: 17612916). The survey report (in bilingual versions), press photos and presentation slides can be downloaded from Or click this link to view the survey report. 
      For media enquiries, please contact: Ms Scarlette Cheung, Faculty of Law, HKU (Tel: 39172919; Email:; or Ms Melanie Wan, Communications and Public Affairs Office, HKU (tel: 2859 2600; Email:
* The Concern Group of Guardianship System and Financial Affairs is established by a group of parents and caregivers of persons with intellectual disability. Its mission is to strive for a better adult guardianship system through examining its current weaknesses and seeking for improvements of the policies and institutions pertaining to adult guardianship. It is hoped that these efforts will enhance personal care and financial management arrangements for individuals with intellectual disability in Hong Kong.

Wednesday, January 11, 2017

Anselmo Reyes on Cross-Border Insolvency and Shipping Companies (LMCLQ)

"Cross-border insolvency and shipping companies"
Anselmo Reyes
Lloyd’s Maritime and Commercial Law Quarterly
2016, pp 517-528
Abstract: This article examines the Hong Kong Court of Appeal’s decision in The Convenience Container, where the court refused to set aside in rem writs even though the shipowner company was in liquidation in a foreign jurisdiction. In view of the principle of “modified universalism”, recently endorsed by the English Supreme Court and approved by the Hong Kong Court, the author doubts the correctness of the reasoning in the case and argues that, upon liquidation, the shipowner company ceased to be the beneficial owner of the relevant vessels. Hence, the plaintiffs should not have been allowed to jump the queue of the shipowner’s unsecured creditors by bringing statutory in rem proceedings against the vessel. 

Saturday, January 7, 2017

Event: Survey Results on Special Needs Trust in Hong Kong (10 Jan 2017)

HKU Faculty of Law to present results and observations from “Questionnaire Survey on Ascertaining the need for Special Needs Trusts in Hong Kong”

According to government statistics, between 71,000 and 101,000 people in Hong Kong have intellectual disability. As existing mechanisms for the financial planning for these individuals are limited, many parents are concerned that after their passing, the care for their children with intellectual disability would be upset. Following the 2016 Policy Address of the Hong Kong Government, the Labour and Welfare Bureau is exploring the feasibility of setting up a trust to provide affordable financial services to these individuals. A Special Needs Trust (SNT) can reduce the cost of administration by pooling funds contributed by parents. Between March and May 2016, the Faculty of Law of the University of Hong Kong and the Concern Group of Guardianship System and Financial Affairs jointly carried out a questionnaire survey of parent opinions on setting up an SNT in Hong Kong. The survey received an overwhelming response of over 2,500 valid returns.
     Professor Lusina Ho and Associate Professor Ms Rebecca Lee of the Faculty of Law will in the press conference present the key findings and observations of the survey. Details are as follows:
Date: January 10, 2017 (Tuesday)
Time: 10:30 am to 12:30 pm
Venue: Moot Court, 2/F, Cheng Yu Tung Tower, Centennial Campus, the University of Hong Kong (Exit C1, HKU MTR station)
Organisers: Faculty of Law, the University of Hong Kong & The Concern Group of Guardianship System and Financial Affairs
Moderator: Ms Anna Lee
Language: Cantonese
The report can be downloaded (after 12:30pm on January 10) at:
     For media enquiries, please contact: Ms Scarlette Cheung, Faculty of Law, HKU (Tel: 39172919; Email:; or Ms Melanie Wan, Communications and Public Affairs Office, HKU (tel: 2859 2600; Email:

Thursday, January 5, 2017

Farzana Aslam Interviewed on Apple's Removal of New York Times App in China (NY Times)

"Apple Removes New York Times Apps From its Store in China"
Katie Benner and Sui-Lee Wee
The New York Times
4 January 2017
Apple, complying with what it said was a request from Chinese authorities, removed news apps created by The New York Times from its app store in China late last month.
     The move limits access to one of the few remaining channels for readers in mainland China to read The Times without resorting to special software. The government began blocking The Times’s websites in 2012, after a series of articles on the wealth amassed by the family of Wen Jiabao, who was then prime minister, but it had struggled in recent months to prevent readers from using the Chinese-language app.
     Apple removed both the English-language and Chinese-language apps from the app store in China on Dec. 23. Apps from other international publications, including The Financial Times and The Wall Street Journal, were still available in the app store.
     “For some time now the New York Times app has not been permitted to display content to most users in China and we have been informed that the app is in violation of local regulations,” Fred Sainz, an Apple spokesman, said of the Times apps. “As a result, the app must be taken down off the China App Store. When this situation changes, the App Store will once again offer the New York Times app for download in China.”
     Farzana Aslam, associate director of the Center for Comparative and Public Law at the University of Hong Kong, noted that in matters involving customer privacy, Apple requires governments to submit subpoenas, search warrants or other legal documents. 
     “Maybe in the end they have to do it, but I think there’s something to be said about standing up for what you believe in and purporting to put principle before profit in a country like China, to show that actually there is this tension there,” Ms. Aslam said. “It’s not as simple as, ‘Because we operate in your jurisdiction, we’ll do anything you ask of us.’”... Click here to read the full article.

Wednesday, January 4, 2017

Rick Glofcheski on Assessment Task Design in the Law Curriculum (new book chapter)

Rick Glofcheski
in D Carless, SM Bridges, CKY Chan & R Glofcheski (eds), Scaling Up Assessment for Learning in High Education
Dec 2016, pp 67-80
Abstract: Across the disciplines in higher education, too little attention is paid by those who design and deliver courses to the role of assessment as a driver of learning. This is certainly the case in legal education. A lecture-based, teacher-centred approach predominates, which produces a largely passive learning, an approach that is reflected in the assessment. The emphasis is on doctrinal instruction, issue coverage, accreditation and ranking. Thus, there is plenty of scope for scaling up. In this chapter, the author describes the principal method of learning and assessment in law schools and the modest learning outcomes it can produce. The author proposes some simple strategic moves in assessment design that can expand the range of achievable learning outcomes in legal education and facilitate the development of skills necessary for professional life. These moves involve the adoption of authentic materials for use in learning and assessment and the introduction of task-based assessments in which students take the lead role in the construction and management of their learning artefacts. They are simple and economical, can be applied in large classes and have the potential for adaptation across the disciplines.

New Book: Scaling Up Assessment for Learning in Higher Education

Scaling Up Assessment for Learning in Higher Education
Editors: D Carless, SM Bridges, CKY Chan, Rick Glofcheski
Dec 2016, 222 pp
About the book: A critical issue in higher education is the effective implementation of assessment with the core purpose of promoting productive student learning. This edited collection provides a state-of-the-art discussion of recent, cutting-edge work into assessment for learning in higher education. It introduces a new theme of scaling up, which will be welcomed by theorists, researchers, curriculum leaders and university teachers, and showcases the work of leading figures from Australia, England, continental Europe and Hong Kong. 
     The work illuminates four key elements: (1) Enabling assessment change; (2) Assessment for learning strategies and implementation; (3) Feedback for learning; (4) Using technology to facilitate assessment for learning. Solidly research-based and carrying important implications for enhanced practice in assessment for learning at the university level, it is a must read for academic developers, researchers, university teachers, academic leaders and all those interested in assessment matters.

Tuesday, January 3, 2017

PY Lo on Unconstitutional Constitutional Interpretations in China's Hong Kong (I-CONnect)

P.Y. Lo (PhD 2012)
23 December 2016
The taking of oaths by two members of the Legislative Council of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) at the first meeting of the newly elected Legislative Council on 12 October 2016 and the ruling of the President of the Legislative Council on 18 October 2016 in respect of their acts have not only led to legal proceedings launched by the Chief Executive of the HKSAR and the Secretary for Justice on 18 October 2016 for declarations and injunctions against them on the ground that their purported oath taking had disqualified them from assuming office, but also the adoption of an interpretation by the PRC’s Standing Committee of the National People’s Congress (NPCSC) of Article 104 of the Basic Law of the HKSAR of the PRC, the provision of the HKSAR’s constitutional document on oath taking by officers ranging from the Chief Executive to principal officials of the executive authorities, legislators and judges when they assume office, on 7 November 2016, while the Court of First Instance (CFI) hearing those legal proceedings was considering its judgment. Both the conduct of the litigation by the HKSAR Government and the adoption of the NPCSC Interpretation of 7 November 2016 of Article 104 of the Basic Law (2016 NPCSC Interpretation) have attracted criticisms, with some commentators labeling the NPCSC Interpretation as ‘unconstitutional’. 
     However, the Court of Appeal (CA), hearing appeals from the two legislators that the CFI declared to have been disqualified on 15 November 2016, considered in its judgment of 30 November 2016 that the courts of the HKSAR had no jurisdiction to determine whether an NPCSC interpretation officially promulgated as such is invalid on the ground that it is substantively not an interpretation of a provision of the Basic Law. This apparent self-effacing act on the part of the CA illustrates a stark fact in the constitutional disposition of Hong Kong under the principle of ‘One Country, Two Systems’: While the NPCSC of the Central Authorities can nullify and supersede an interpretation by the HKSAR courts of a provision of the Basic Law with its own interpretation of the same provision, the HKSAR courts believe that they cannot question the authority of the NPCSC to issue an interpretation of the Basic Law in accordance with the provision in the Basic Law on its interpretation and the procedure therein.
     This Note maps this asymmetry in dealing with ‘unconstitutional’ constitutional interpretation with reference to the development of the case law of the HKSAR courts since 1999, when the HKSAR’s Court of Final Appeal (CFA) was first asked to interpret provisions of the Basic Law and considers whether and how the CFA might attempt to deal with an NPCSC interpretation and submissions asking it and thus the HKSAR courts to disregard it for substantive reasons in a future occasion... Click here to read the full post.

Puja Kapai Interviewed on the Abuse of Sex Workers in Hong Kong (SCMP)

Rachel Blundy,
South China Morning Post
31 December 2016
Abuse of prostitutes is on the rise and police officers are mostly responsible, according to the city’s main non-profit organisation that cares for the rights of women.
     Zi Teng, which offers support for prostitutes, this year received 615 reports of physical and ­verbal abuse relating to both police and clients, up from 225 in 2015. The most ­serious cases, ­concerning clients, ­included grievous bodily harm, rape, robbery and fraud.
     Police were reported on 490 occasions for a ­catalogue of alleged abuses, including 225 cases of arbitrary arrest, when sex workers were not told why they were being held, and 100 cases of ­excessive ­licence checks, when they were approached and questioned several times on the same day.
     Other allegations against officers included ­forcing women to carry out free sexual services (11 cases), provide free massage services before arresting them (17), making verbal threats and insults (57), carrying out indecent assaults (three) and physically assaulting them (three).
     Puja Kapai, director of the Centre for Comparative and Public Law at the University of Hong Kong, said the latest figures suggested workers faced ­rising levels of abuse, but emphasised that they may also reflect an increased awareness to report violence.
     “It is fair to say the situation looks like it is getting worse,” she said. “But I would want it to be made clear whether this was linked to the increasing visibility of gender-based reporting about violence.
     “It may have something to do with more Legislative Council discussions about this issue as well.
    “It may also be that people are more likely to speak to Zi Teng now and to report these incidents.”... Click here to read the full article.

Friday, December 30, 2016

New Issue of Asia-Pacific Journal on Human Rights and the Law - Special Section on Torture

Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden

Special Section on Torture 

Introduction: Special Section on Post 9/11 Perspectives on Torture 179
Cynthia Banham

Forced Confession as a Ritual of Power: The Case of Diyarbakır Military Prison in Turkey 185
Yeşim Yaprak Yıldız

Transferring Responsibility? The Influence and Interpretation of International Law in Australia’s Approach to Afghan Detainees 240
Sean Richmond

Searching for the Elusive? Examining the Right to Health’s Status in the Pacific 257
Jennifer Y Kallie, Claire E Brolan and Nicola C Richards

Friday, December 23, 2016

The Inaugural HKU-Boase Cohen & Collins Criminal Law Lecture (20 Jan 2017)

The Faculty of Law at The University of Hong Kong is delighted to announce the inaugural HKU-Boase Cohen & Collins Lecture Series in Criminal Law will be delivered by award-winning international barrister Clare Montgomery QC on Friday, 20 January 2017, at the HKU’s Centennial Campus.
     Ms. Montgomery, of Matrix Chambers in London, is a barrister of international renown and, among the many accolades that have come her way, she has twice been named Crime Silk of the Year in the Chambers & Partners Bar Awards as well as Crime Silk of the Year in the inaugural Legal 500 Awards.
     She will speak about “Joint Enterprise” – a topic which has been in the news due to a landmark ruling by the UK’s Supreme Court and Privy Council earlier this year and its historic connection with Hong Kong.  No doubt she will be commenting on the Court of Final Appeal's recent decision in HKSAR v Chan Kam Shing, deciding not to follow the UK's landmark ruling.  Click here to register for the event.

Thursday, December 22, 2016

Cheng and Kwok on Joint Ventures as Facilitators of Collusion Across Markets (new article)

"A neglected theory of harm: joint ventures as facilitators of collusion across markets"
Thomas Cheng and Kelvin Kwok
Journal of Antitrust Enforcement
Oct 2016 (advance access)
Abstract: While there has been extensive discussion in the antitrust literature on the procompetitive and anticompetitive effects of joint ventures, there is a lack of systematic analysis on the potential of a joint venture to have collusive harm beyond its home market. This article aims to fill the gap in the literature by systematically accounting for the possible ways in which a joint venture can facilitate collusion by its members outside of the venture’s home market, namely: (i) as a punitive mechanism for the cartel; (ii) as a provider of an important input; and (iii) as a facilitator of information exchange. In addition to discussing these theories of harm, this article will attempt to offer some ways in which such anticompetitive concerns raised by joint ventures can be alleviated or addressed under US antitrust law, including ex ante behavioural remedies and ex post conduct enforcement. The proposals are intended to preserve the efficiency-enhancing potential of joint ventures by permitting them as long as their collusion facilitating potential can be reasonably contained.  This article was nominated and shortlisted for the Concurrences Antitrust Writing Awards 2017 (concerted practices category).

Wednesday, December 21, 2016

Macau's Response to the November 2016 Interpretation of Hong Kong's Basic Law

Macau's Legislative Assembly.
Credit: Doraemon.tvb
Jason Buhi *
Macau’s Government has proposed legislation to bring its electoral law regime into compliance with the National People’s Congress Standing Committee’s 7 November 2016 interpretation of the Hong Kong Basic Law (the ‘November Interpretation’). 
     Macau had already been working on amendments in anticipation of next year’s quadrennial Legislative Assembly election. The original proposal generated controversy for expanding the candidate screening powers of the local Legislative Assembly Election Affairs Commission (CAEAL) – a municipal body whose membership is appointed by the Chief Executive. Macau’s Secretary of Administration and Justice, Sonia Chan, sought deeper amendments following the November Interpretation. The revised version was introduced along with an explanatory text on 7 December 2016. 
     The reform package seeks to amend Law 3/2001: The Electoral Law of the Legislative Assembly of the Macau Special Administrative Region. The documents are notable for their drafters’ views of Macau’s obligations following an NPCSC interpretation of the Hong Kong Basic Law. Indeed, the Macau Government enthusiastically seeks to embrace the November Interpretation despite lacking the contextual background for which it was prescribed. Macau has no independence movement.
     Notable amendments include:
1) Making ineligible legislative candidatures “who refuse to declare that they uphold the Basic Law […] and that they are faithful” to Macau and China, and unseat those who “do not uphold the Basic Law […] or are not faithful […]” (Articles 6.8, 30.2, and 47-A); 
2) Restricting officers of foreign governments from serving in the Legislative Assembly (Articles 4 and 6); 
3) Tweaks to the CAEAL’s composition (Article 9);  
4) Introducing statutory definitions for the concepts of “electoral propaganda” and “electoral activities” (Article 75-A); 
5) Introducing a duty to communicate any “electoral propaganda activities” to CAEAL for approval at least 18 days in advance of an election (Article 75-B); 
6) Introduction of criminal liability for legal persons or their agents who violate electoral law (Articles 143 and 148), including the application of Macau electoral law to circumstances occurring abroad.
     I share my unofficial English translation of the statutory reform proposal, to which I have added translations of the accompanying explanatory notes for only the aforementioned articles. Any errors therein are my responsibility alone. The official versions are here (Portuguese / Chinese).
* Author is a Ph.D. candidate at the University of Hong Kong Faculty of Law.

Autonomy with Portuguese Characteristics (HKLJ)

Jason Buhi (PhD Candidate)
Hong Kong Law Journal
2016, Vol 46, Part 3, pp 879-902
Abstract: In December 2015, the National People’s Congress Basic Law Committee sent a six-person delegation to investigate the relationship between mainland Portugal and its two “ultraperipheral” autonomous regions: the Azores and Madeira archipelagos (PARs). To the residents of Hong Kong and Macau, this occurrence begs understanding of what form that autonomy takes, and what its implications could be for the future development of China’s Special Administrative Regions (SARs). The answers present both rich opportunities and challenges. This article is intended as a primer on Portuguese-style autonomy for the SAR audience. It examines both normative and empirical resources in describing Portuguese practice. Variations in context, political architecture, central-local relations and international identity are explored. Essentially, while the PARs do not have all of the privileges of the SARs in terms of economic liberty and legislative competence, they do enjoy universal suffrage, permanent constitutional recognition and privileged access to the most extensive fundamental rights regime in the world.

Tuesday, December 20, 2016

New Book: The Making of the Modern Chinese State (Humphrey Ko)

The Making of the Modern Chinese State
Humphrey Ko
Palgrave Macmillan
2016, 258 pp.
Description: This text addresses the corporate causes of the collapse of the Qing Dynasty and the emergence of modern Republican China. Weaving together political, legal and business histories, it focuses on the key relationship between China, cement and corporations, and demonstrates how the particular circumstances of cement manufacturing in nineteenth- and early twentieth-century China serve to illuminate key aspects of Chinese political economy and illustrate the importance of legal frameworks in the emergence of industrial enterprises. Examining the centrality of legal personality in China’s historical story, seen from the angle of cement manufacturing corporations, it offers an alternative historical perspective on the making of the modern Chinese States and delves into the involvement of larger-than-life historical figures of modern China such as Yuan Shikai, Chiang Kai-shek and the revolutionary and the father of modern China, Sun Yat-sen, in the unfolding of these events.

Felix Chan Presents at the 9th East Asia Maritime Law Forum in Korea

Felix Chan attended the 9th East Asia Maritime Law Forum in South Korea on 11-12 November 2016. He presented a paper on the principles of English private international law relating to maritime contracts, while Professor Yvonne Baatz of Southampton Law School discussed the possible impact of Brexit on the EU conflict of laws. Other speakers from Waseda University, Kyushu University, Korea University, Dalian Maritime University and Shanghai Maritime University surveyed a range of topics regarding shipping, conflict of laws and admiralty jurisdictions. The forum was co-hosted by Korea University, Korea Maritime Law Association and the Incheon Port Authority of the South Korean Government.

Hong Kong Legal History: Student Umbrella Movement of 1919 (HKLJ)

Michael Ng
Hong Kong Law Journal
Dec 2016, Vol 46, Part 3, pp 829-847
Abstract: English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualise it as a gift to the colonised, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbour across the border, mainland China. This article, drawing on unexplored archival materials, challenges this widely accepted narrative, thereby severing the link between common law’s legal past and present in Hong Kong. Through a close reading of a widely reported court case concerning students’ anti-Japan movement in 1919, the article further argues that the common law system practised in pre–World War II Hong Kong played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process.

Comment on Wong Chak Sin v Collector of Stamp Revenue - Legislation by Press Release (HKLJ)

Chen Jianlin
Hong Kong Law Journal
Dec 2016, Vol 46, Part 3, pp 813-827
Abstract: This analysis critically examines Wong Chak Sin v Collector of Stamp Revenue, the first-ever local judicial decision, dealing with “legislation by press release”. The analysis highlights how both the judge and lawyers in the case failed to appreciate the distinct operating mechanism and practical effects of legislation by press release, and argues that the decision’s holding that the government power to tax is exempted from the requirement of proportionality under Art 105 of the Basic Law is a far-reaching extension of existing judicial precedents that should have been subjected to more circumspect scrutiny.

The Right to Social Welfare and Hong Kong's Retirement Protection Reform (HKLJ)

Karen Kong
Hong Kong Law Journal
Dec 2016, Vol. 46, Part 3, pp 779-791
Abstract: This article discusses the proposals for retirement protection reform in the public consultation conducted by the Commission on Poverty. It analyses the relevant human rights obligations of the government under the Basic Law and the International Covenant on Economic, Social and Cultural Rights, including the protection of the right to social welfare and the right to an adequate standard of living. It argues that there is a minimum essential level of retirement protection that the government must provide to the elderly in poverty in order to satisfy the human rights obligations, and calls for a more comprehensive human rights impact assessment to be conducted before the implementation of the reform.

New Issue of Hong Kong Law Journal (Part 3 of 2016)

Hong Kong Law Journal
Vol. 46, Part 3 of 2016
Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen

Table of Contents

Developing Common Law in Hong Kong Hon Mr Justice Tang PJ    761
“All for Some” or “Some for All”? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong Karen Kong    779
Making Good: Dealing with Illegal Drug Consumption in Hong Kong Jack Burke and Sheldon Leung  793
Misfiring the First Judicial Shot at Legislation by Press Release: Wong Chak Sin v Collector of Stamp Revenue Chen Jianlin   813
Rule of Law in Hong Kong History Demythologised: Student Umbrella Movement of 1919 Michael Ng  829
What is a Conflict of Laws? The Case of Chinese Customary Law in Hong Kong Lutz-Christian Wolff   849
Autonomy with Portuguese Characteristics: A Primer on the Privileges of Portugal’s Autonomous Regions for the Special Administrative Region Audience Jason Buhi   879
Punishing Copyright Piracy: What is Sufficient to Provide a Deterrent? an Assessment of the Australian and Singaporean Criminal Copyright Regimes Ainee Adam   903
China Law
Is Australia’s “Twin Peaks” System of Financial Regulation a Model for China? Andrew Godwin, Guo Li and Ian Ramsay   935
Legislation and Adjudication of Tort Liability in Environmental Pollution: An Empirical Study Based on Health-Related Cases in China Heng Li   961
Contesting Legitimacy in China: The Politics of Law in Modern Chinese Jurisprudence Xie Libin and Haig Patapan   991
The (IR)Relevance of ADRs in Resolving Financial Disputes: An Empirical Assessment and Roadmap of Shanghai Shen Wei and Yu Tao   1017
Book Reviews
International Copyright Law: US and EU Perspectives: Text and Cases, Jane C Ginsburg and Edouard TreppozYanbing Li   1055

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