Monday, September 18, 2017

Cottrell & Ghai Comment on the Kenyan Presidential Re-Election (The Star)

"A plague on both [all] your houses"
Jill Cottrell Ghai and Yash Pal Ghai
The Star
17 Sept 2017
Mercutio in Romeo and Juliet cursed the warring families (we might say tribes) of the Montagues and the Capulets and their meaningless feud that was killing him.
    We suspect many Kenyans feel like this as they read their news media, printed or social, and wonder if it has to be so.  Yash Ghai thinks not. The first part of this article is his.
RECOLLECTIONS
When I was a graduate student at Oxford, the College regularly invited distinguished politicians, ministers and civil servants for discussions with staff and students on topical issues.
     I paid particular attention to politicians (as Kenya was about to become independent). I met politicians of all three major parties. I used to provoke Tories, because I had the notion that they were the imperialists, and had soft corner for the Labour members because they were on the side of freedom. They, naturally, had all different things to say and presented different points of view. They also expressed these views at election times and were judged accordingly. And if they were elected, you could see their policies resembled what they had promised the electorate. That was an important lesson in democracy.
     I was also very impressed at a personal level. They all seemed very earnest and were prepared to sit into the small hours defending their policies and listening to us. Since Ali Mazrui was a fellow student, you can imagine that we gave the Tories a hard time. Most parliamentarians invited us to meet them when we were in London for further discussions and to see the proceedings of Parliament, after lunch in the parliamentary restaurant. There was no pomposity.
     Some research showed me that they all had a distinguished career of one kind or another, which had given up to go into politics, where they earned much less. Most attended Parliament regularly and went to their constituencies over the weekend, where they were available to be consulted, or complained against, regardless of their party affiliation.
     Elections did not cause much expenditure. I knew of no example where elections bankrupted the government! Government did not have to launch a bond on domestic or foreign markets for 'necessary' funds.
     It was extremely, extremely rare for a politician to change political parties and then only for policy differences not for money. Voters had a real choice of policies, for each party offered a distinct set of priorities... Click here to read the full article.

Sunday, September 17, 2017

HKU Law Faculty Success in CPU's Public Policy Research Funding Scheme 2017-18 (Third Round)

Congratulations to Emily Lee who was awarded a Public Policy Research Grant in the 2017-18 (Third Round) by the Central Policy Unit. The project, titled "Financial Inclusion and Bank Account Opening: Deploying Financial Technology and Regulatory Technology for Improving Banking Services Accessibility Inside Hong Kong’s Anti-Money Laundering Law", was awarded $295,550 in funding over 18 months.  
     In addition, Puja Kapai is Co-Investigator in another successful Public Policy Research grant awarded to Professor Karen Laidler of the Department of Sociology. The project, titled "Opening Doors, Creating Pathways - A Qualitative Study of Social Harms and Service Access of Young People from Ethnic Minority Backgrounds in Hong Kong", was awarded $400,000 over 14 months.  

Saturday, September 16, 2017

HKU Law Faculty Awarded Four KE Impact Project Awards 2017/18

The University of Hong Kong's Knowledge Exchange (KE) Funding Scheme for Impact Projects supports (A) projects that have the potential to create social, economic, environmental or cultural impacts for industry, business or the community by building on expertise or knowledge in the University; and (B) projects designed to collect evidence for corroboration and evaluation of impacts. Engagement projects that aim to benefit non-academic communities beyond Hong Kong are strongly encouraged.  
     The Faculty of Law was successful in obtaining four awards in the 2017/18 round of funding, each in the amount of HK$100,000.  Congratulations to Dora Chan, Katherine Lynch, Anne Cheung and Richard Wu.  The details of their projects are described below:

Ms Dora Chan 
E-package of DIY Residential Tenancy Agreement 
The proposed project aims to provide the public community with a template residential tenancy agreement and a set of useful guidelines (including stamping and registration procedures) on how to enter into a valid residential tenancy agreement. Members of the public can then use and adapt the template to independently enter into a tenancy agreement for their residential homes, an important document that has a significant impact on their daily lives, without the costs and trouble of engaging a lawyer. The main objective is to provide free legal support to the community and to encourage knowledge exchange on tenancy matters. 

Ms Katherine Lynch 
Evaluation of the Children’s Issues Forums & Legal Reform of Child and Family Law & Policy in Hong Kong 
This project aims to collect evidence for corroboration and evaluation of impacts arising from the research and knowledge exchange project, “Children’s Issues Forums & Legal Reform of Child and Family Law in Hong Kong”, which created a multidisciplinary forum enhancing policy and legal reform for children’s issues in Hong Kong. The project will evaluate through quantitative and qualitative measures the impact of the project on increasing public awareness of children’s issues, changing legal policy on and creating pressure for law reform in Hong Kong’s child and family justice system. 

Professor Anne Cheung 
Hong Kong SAR Treaties e-Library 
The proposed project aims to provide free access to legal information for the public in Hong Kong by building a one-stop comprehensive and electronically searchable database of treaties and international agreements applied to the Hong Kong SAR in Hong Kong Legal Information Institute (HKLII). The key objective is to support the community and engage in knowledge exchange.

Dr Richard Wu 
Engaging Local School Teachers with Common Law Concepts and Values Through Experiential Learning 
This project is a pioneering interdisciplinary collaboration in common law education for local school teachers between academics from HKU Law and Social Science Faculties as well as academics from two other local universities. On basis of the project team members’ previous teaching and research projects on common law education for ‘non-law’ students and experiential learning in law, as well as teacher education, this project will engage local school teachers with common law concepts and values through experiential learning like case discussion, personal sharing by senior lawyers, and visual media . The project attempts to impact local school teachers by promoting their understanding of the common law system in Hong Kong and enhance their awareness of general common law concepts and specific common law values like justice and equality. 

Friday, September 15, 2017

New Book: Tort Law in Hong Kong (4th edn) (Rick Glofcheski)

Tort Law in Hong Kong (Fourth Edition)
Rick Glofcheski 
Sweet & Maxwell
September 2017
Description: Tort Law in Hong Kong, now in its fourth edition, is both a learning tool for intending lawyers and the most up-to-date and comprehensive tort law resource for legal practitioners, academics and judges. The focus is on the Hong Kong law and context. The new edition provides critical analysis of more than 300 new court decisions from Hong Kong and relevant overseas jurisdictions.

New Book: Civil Procedure in Hong Kong: A Guide to the Main Principles (4th edn) (Dave Lau)

Civil Procedure in Hong Kong: A Guide to the Main Principles (Fourth Edition)
Dave Lau
Sweet & Maxwell
August 2017
Description: Civil Procedure in Hong Kong: A Guide to the Main Principles, Fourth Edition, a popular text with practitioners, has developed a reputation as being a user-friendly, simply written guide to the main principles of civil procedure.
     The new edition covers important changes in relevant areas, including the recent abolition of the “as of right” route of appeal to the CFA. A few years have passed since the coming into effect of the Civil Justice Reform (CJR). The text elaborates on various points where it would be helpful for practitioners to have more of an explanation and/or a flavour of the Court’s general approach now.

New Book: Intellectual Property Law and Practice in Hong Kong (2nd edn) (Alice Lee)

Intellectual Property Law and Practice in Hong Kong (Second Edition)
Kenny Wong and Alice Lee
Sweet & Maxwell
September 2017
Description: Intellectual Property Law and Practice in Hong Kong, Second Edition continues to be the standard text on intellectual property law in Hong Kong and the essential treatise for the modern day IP practitioner.
New topics covered: New cases in Hong Kong, UK, EU and other jurisdictions, New Patent Ordinance, Copyright Amendment Bills, Proposed amendments to the Copyright Tribunal Rules, Proposed amendments to the Arbitration Ordinance.

Thursday, September 14, 2017

Need for More Sensitivity When Reporting on Domestic Violence in Hong Kong (Puja Kapai)

Puja Kapai, Yenni Kwok, Linda To, Shirley Kong
Hong Kong Free Press
14 September 2017
A murder-suicide case shocked Hong Kong last week. Last Monday, a man allegedly killed his wife at a luxury apartment building in Yau Ma Tei before taking his own life. The police said the husband had moved out of their home on Friday after the wife discovered he had been cheating and demanded a divorce.
     Domestic violence in the city remains one of Hong Kong’s most neglected problems and unfortunately, also its most hidden. Yet, the media coverage of the murder-suicide case highlights a critical lack of understanding about the issue. As the horrific news about the young couple, who were both civil servants, gripped the city, reports speculated that the act of violence was the inevitable consequence of the wife earning a higher salary than the husband.
     The front-page story of Headline Daily on Tuesday, 5 September 2017, was titled: “Wife’s salary is more than double her husband’s. Wife in a higher position is a recipe for a tragedy.” News website HK01.com also linked the murder-suicide to the wife’s high salary. In a story published on 4 September, it quoted Szeto Hon-ming, a senior social worker, who said a wife shouldn’t “injure the pride” of the husband. He also advised wives who earned more than their husband not to use “terms that may undermine men’s self-esteem.”
     Media ethics exact a higher standard of reporting than what is sadly on display from the headlines and stories which have emerged over the course of the week. The reports have irresponsibly showcased and perpetuated a sexist narrative which blames the victim.
     Although the homicide rate in Hong Kong remains comparatively low given the size of our population, the number of domestic murder-suicides among homicides features prominently. This is no cause for comfort but rather, calls for targeted approaches for prevention by frontline personnel who need to understand that such incidents are often the breaking point in a relationship likely to have been peppered by escalating violence earlier on. The majority of the victims are women, and the perpetrators are usually their partners or former partners. Hong Kong — along with Japan — has the highest rate of female homicide victims in the world: women comprise 52.9 per cent of the total homicide victims in these two jurisdictions, followed by South Korea at 52.5 per cent... Click here to read the full article.

Rule of Law Education (ROLE) Project Featured in HKU Bulletin (Sept 2017)

‘Rule of law’ is a term used by people across the political spectrum in Hong Kong, who attach very different meanings to it. Some believe it means following rules, others that no one is above the law. Even lawyers can struggle with the concept, as Mr Benny Tai Yiu-ting, Associate Professor of Law and an expert on the rule of law, can relate. “They may have some ideas about what it means but not have the kind of understanding to be able to put it in a structural framework and explain it to other people,” he said.
     At the urging of a lawyer friend, Mr Tai decided to do something about this deficiency. In 2012 he launched the Rule of Law Education (ROLE) project, in which Faculty staff and HKU law students go into secondary schools to help raise awareness.
    “The rule of law has four levels,” he said. “The first is the existence of law. The second is regulation by law. The third is limitation by the law – how the law is used to limit the powers of government. And the fourth level is about using the law to achieve justice such as protecting fundamental rights.”
    This conception is conveyed through workshops, teaching kits and lessons taught by HKU students – many of them future lawyers – who not only instruct senior secondary school students but also strengthen their own understanding and ability to explain the concepts. They also receive teaching training... Click here to read the full article.  To visit the ROLE website, click here.

Sunday, September 10, 2017

Puja Kapai Awarded Faculty Knowledge Exchange Award 2017

Congratulations to Puja Kapai who was awarded the University of Hong Kong's Faculty Knowledge Exchange (KE) Award 2017.  The award recognises the impact her research has had on the interests and rights of ethnic minorities in Hong Kong.  Titling her application "Plugging the Justice Gap for Minorities under the Law: Applied Intersectionality Research and Substantive Equality" ("以法律為弱勢消除公義鴻溝:應用跨界別研究及實質平等"), the impact from her work was summarised as follows:
  • Legislative Council referenced Kapai’s research findings and called on HKSAR Government to follow up Kapai’s recommendations based on her submissions.
  • Kapai’s applied intersectionality framework has become part of standards of best practice for HKSAR Government and NGOs in handling ethnic minority issues.
  • Raising community/public understanding about ethnic minorities (EMs) and issues impacting them and to foster enriched understanding about detrimental impact of inequality for Hong Kong’s diversity and future.
  • Review and reassessment of existing laws, policies, capacity building and service delivery towards EMs across many areas, including violence against women, education, employment and healthcare.
  • Propelled NGOs to conduct research to collect data to work towards evidence-based resource allocation & solutions.
The Faculty KE Awards were introduced in 2011 in order to recognise each Faculty’s outstanding KE accomplishment that has made demonstrable economic, social or cultural impacts to benefit the community, business/industry, or partner organisations. Nominations in each Faculty were considered by an Ad Hoc Faculty KE Award Selection Committee chaired by the Dean, and members included the Faculty representative serving on the KE Working Group, one of the Associate Directors of the Knowledge Exchange Office (KEO), and a member from outside the University. The selection criteria include evidence of the KE project’s link with excellence in research or in teaching & learning of HKU; evidence of an effective engagement process with the non-academic sector(s); and evidence of demonstrable benefits to the community, business/industry, or partner organisations.

Thursday, September 7, 2017

Continuing Legal Education for Hong Kong Prosecutors

Department of Justice
Sept 2017, pp 79-81
Continuing legal education (CLE) is becoming a standard requirement for all who practise law in Hong Kong. Since 2003, the Law Society of Hong Kong has had a mandatory continuing professional development (CPD) scheme for all solicitors with practising certificates and trainee solicitors. The Hong Kong Judiciary established a Judicial Institute in 2013 “to enhance judicial skills and knowledge through the development of continuing and more structured judicial education” for all judges and judicial officers. For Hong Kong barristers, change is on the horizon, though pupil barristers have had an advanced legal education requirement since 2003. 
     In Wong Kam Kuen, Catherine v The Bar Council [2015] 4 HKLRD 367, the Court of Appeal noted that barristers in England and Wales and New South Wales, Australia have had compulsory CPD requirements since 2001 and 2005 respectively. The Court was critical of the absence of such requirement for Hong Kong barristers: “Remarkably, in Hong Kong, there is no such mandatory requirement for the Bar... Given the greater education and perception of the public as to their rights and expectations in litigation, it would be unfortunate if the Bar were to continue to ignore the tide of these events”2. In January 2017, the Hong Kong Bar Association commenced a two-and-a-half month consultation of members on the introduction of CPD. In the consultation paper, it was stated that the Bar Council was in favour of CPD and was minded (subject to the consultation outcome) to introduce a CPD trial period of two years before further review... Click here to read the full article.  Government press release available here.

Tuesday, September 5, 2017

New Issue of Hong Kong Law Journal (Part 2 of 2017)

Hong Kong Law Journal

Vol. 47, Part 2 of 2017
Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen



Table of Contents


Articles
A Re-evaluation of “Incarceration Strategy” by Hong Kong Courts: The Overuse of Incarceration in Sentencing Juvenile Drug Offenders Gordon Chung323
The Doctrinal and Normative Vacuity of Hong Kong’s Joint Enterprise Doctrine Dennis J Baker349
A Critical Analysis of the Hong Kong Stamp Duty Implications of Corporate Amalgamations and the Repurchase by a Company of Its Own Shares Stefano Mariani399
Challenging the “Majority Support” Argument on not Introducing Anti-discrimination Legislation on the Ground of Sexual Orientation in Hong Kong Suen Yiu Tung421
The Success and Failure of Online Dispute Resolution Wei Gao445
Interpreting Article 104: The Way, the How, the Timing Devin Lin, Valentin Günther and Mathias Honer475
Lecture
Constitutional Dialogue and the Rule of Law Hon Justice Matthew Palmer505
China Law
The Gap between Law and Practice: An Empirical Study on China’s High Pretrial Detention Rate Xifen Lin, Zihui Gu and Xi Lin525
International Jurisdiction under the 2005 Hague Convention on Choice of Court Agreements: Implications for China Huang Zhang555
Examining Legislation in China’s Special Economic Zones: Framework, Practice and Prospects Yang Feng585
Law and Justice in Evening Rain Alison W Conner615
Review Articles
Lord Sumption and the Limits of the Law Hon Sir Anthony Mason633
China’s Multi-layered Attitude towards State Sovereignty: Theory, Practice and Broad Implications Roda Mushkat659
Book Reviews
Hong Kong Competition Law Carter Chim689
The Commercial Appropriation of Fame: A Cultural Analysis of the Right of Publicity and Passing Off Marco Wan693

Click here to read the abstracts of each article.  Hong Kong Law Journal is published by Sweet & Maxwell.  Full text is available on Westlaw.

Monday, September 4, 2017

Daisy Cheung Interviewed on Compulsory Mental Health Treatment in Hong Kong

The Centre for Medical Ethics and Law (CMEL) hosted a two-day conference (25-26 August 2017) on compulsory mental health treatment in Hong Kong and the way forward.  The conference featured philosophical, human rights, legal and medical perspectives.  The speakers included a judge from the United Kingdom, medical practitioners and academics from the UK, New Zealand, the United States, and Hong Kong.  The conference was organised by Assistant Professor and Deputy Director of CMEL, Ms Daisy Cheung, who agreed to be interviewed by HKU Legal Scholarship Blog.

1. What inspired you to organise this event and what did you hope to achieve? 
This event has been something I have wanted to do since I joined the Faculty back in 2015. At the time, my research into the legal issues surrounding compulsory mental health treatment in Hong Kong had led me to the conclusion that the Mental Health Ordinance provided very few safeguards for the rights of mentally ill individuals, something which worried me. There was, however, minimal writing and discussion on this topic. I thought that an event where all the different stakeholders in mental health were brought together would be a good forum to discuss some of these highly important issues and fill in some of these gaps. Fast-forward to June 2016, when Co-Director of CMEL, Prof Terry Kaan, and I went to visit the Centre for Law, Medicine and Life Sciences at Cambridge (which we work closely with pursuant to an MOU between our two universities) and the Ethox Centre at Oxford, we met Dr Elizabeth Fistein and Dr Michael Dunn, both of whom were keenly interested in the topic of mental health. We had a lively discussion, following which we decided to co-organise a conference on the topic of compulsory mental health treatment in Hong Kong. Upon my return to Hong Kong, we discussed the proposal with the Hong Kong College of Psychiatrists, who also came on board as a co-organiser of the conference.
     With this conference, we hoped to achieve, at a minimum, more awareness about the legal issues facing compulsory mental health treatment in Hong Kong. We felt that not enough people were talking about, not to mention researching, this subject, and as a result it was not receiving sufficient attention and consequently sufficient impetus for legal reform. With more awareness, we hoped to garner support for change, as well as come up with a path to reform in Hong Kong.
     In terms of whether we were able to achieve these goals, our high attendance rate (highest of all the conferences CMEL has organised in the past) ensured that we were at least able to raise awareness about the various issues discussed during the conference (more below). Our audience included a wide range of professions, including psychiatrists, family medicine practitioners, clinical psychologists, social workers, members of the Equal Opportunities Commission, lawyers, mental health service users and representatives from mental health advocacy groups, students, and members of our Faculty. During our roundtables, we were also able to generate concrete ideas for how to move forward with reform – one idea, for example, was to put together a voluntary Code of Practice for psychiatrists working in the Hospital Authority.

2. What are the major mental health legal issues facing Hong Kong?
The mental health legal issues facing Hong Kong are so broad that I will not be able to do them justice by discussing all of them here. This was also why we decided to focus on compulsory treatment, instead of mental health law in Hong Kong generally. Keeping in line with the conference, I will elaborate a bit here on the legal issues relating to compulsory treatment in Hong Kong, both in the hospital and community setting. 
     To begin with, Prof Bartlett and Prof Petersen both gave powerful presentations about the lack of compliance of the Hong Kong compulsory treatment regime with the UN Convention for the Rights of Persons with Disabilities. Prof Bartlett argued that our current view of mental health law is mired in a vision where compulsion is the core, and because of this, it is difficult to see how we can achieve the goals of the UNCRPD.
     In the hospital setting specifically, I argued in my presentation that Hong Kong’s civil compulsory regime, in particular the long-term detention and treatment of a mentally ill individual, does not sufficiently safeguard the rights of individuals who are compulsorily detained and treated against their will. I focused on the role of the District Judge in the compulsory admission process, arguing that case law has restricted the District Judge to a largely administrative role, with no substantive discretion to refuse to countersign a patient into compulsory detention. This lack of an alternative to the medical perspective is problematic, and is exacerbated by the fact that the system has minimal safeguards on duration of stay, treatment and case review. 
     In the community setting, although Hong Kong does not have a community treatment order, Dr Cheung told us about ‘conditional discharge’, which was enacted in response to a tragedy back in 1982. This is, in my view, a hugely problematic regime that allows for what is essentially compulsory treatment in the community with minimal safeguards. For example, there is no limit to the duration of this order, meaning that such an order will go on indefinitely until the patient is either recalled to a mental hospital for the breach of a condition or is discharged by the Mental Health Review Tribunal. There is no mechanism by which the medical superintendent can release or discharge the patient himself, which, as Dr Cheung informed us, was problematic for the doctors who wanted to release their patients from conditional discharge. 

3. One of the speeches was delivered by Judge Mark Hinchliffe, Deputy Chamber President of the UK First-tier Tribunal. What did he speak about and do you see it as being potentially useful to Hong Kong?
Judge Hinchliffe’s speech was on the role of the First-Tier Tribunal in the compulsory detention and treatment process in the UK. His speech covered various areas, including the key stages in the development of the current system of tribunals, the differences between the UK and HK models, what the First-Tier Tribunal does when it considers a case, and how we might think to further refine judicial involvement in the future.
     A lot of the discussion was, in my view, very useful for Hong Kong. For example, Judge Hinchliffe described the First-Tier Tribunal’s transition from a primarily inquisitorial to an adversarial model, which he argued helped to clarify issues and allowed for a greater focus on due process safeguards. Hong Kong’s judicial involvement in the compulsory detention and treatment process is largely inquisitorial, both at the admission stage and at the review stage. A move towards an adversarial model would be an important step towards the goal of providing sufficient safeguards for those who are subjected to this regime.
     Judge Hinchliffe’s insights about how to further refine judicial involvement were also very valuable for Hong Kong, although arguably much more difficult to implement. For example, he discussed the inclusion of an incapacity requirement in the compulsory detention and treatment regime, so as to achieve better parity with how physical health problems are managed. He also discussed problems with detaining mentally ill individuals based on their risk to others, given that there are many others without mental disorder who pose the same, if not greater, risk.
     Judge Hinchliffe has kindly agreed to allow us to post his speech on our website, so for those who are interested, please have a look here. His speech was the subject of an article in The Telegraph published on 29 August 2017.

4. What were some of the other important points made by the speakers at your event?
I would say all of our speakers made very important points, and again I would not be doing them justice if I discussed all of them here. But allow me to give a brief summary of the topics that were covered. 
     Prof McMillan kicked off our conference by giving us a framework of ethical concepts upon which the rest of our discussion was based. For example, he discussed the principle of ‘consistency and fairness’ and how it applies to a range of issues including scope of treatment and how illness is defined. Prof Bartlett and Prof Petersen then gave presentations on the UNCRPD, including such issues as what compliance with this gold standard would look like and why having compulsion in mental health law is problematic. Prof Petersen gave us particular insights into the situation in Hong Kong, and how the current regime may also not sit well with the International Covenant on Civil and Political Rights. Prof Dawson then gave a very helpful presentation on the usual contents of mental health acts in the Commonwealth, as well as the issues of continuing controversy, such as the inclusion of an incapacity requirement in the criteria for compulsion, and what alternatives might look like. 
     Judge Hinchliffe started off the second day with his speech (which I have discussed above). Dr Fistein then discussed her empirical research on how practitioners decide whether compulsory detention is appropriate, and what factors they thought were most relevant. Dr Siu followed this with a presentation on the laws governing compulsory detention and treatment in Hong Kong and relevant statistics from Castle Peak Hospital. The next section, on compulsory community treatment, began with Dr Dunn’s presentation on the efficacy of community treatment orders and his empirical research on whether they are ethically justifiable. Dr Eric Cheung gave us our last presentation, covering the above-mentioned conditional discharge order, as well as some relevant statistics and local research. He ended with recommendations for compulsory community treatment in HK going forward.
     For more information about the conference including the programme, speakers' bios, abstracts and slides of presentations, and photos, click here.   

5. What further research are you doing in this area?
The collaborators of this conference and I will be putting together an article based on the results of the conference and potential contributions of the speakers. We hope to lay out a path for reform in Hong Kong, as well as discuss some of the pertinent issues that were raised.
     Separately, I have recently been awarded a research grant to work on the guardianship systems of mentally incapacitated persons in East Asian jurisdictions, including Hong Kong. With this grant, I hope to take an in-depth look at the extent to which the guardianship systems in these jurisdictions are underpinned by a set of consistent and ethical legal principles, and the extent to which these systems are compliant with local and international human rights standards.
(Back row, L-R) Carole Petersen, Daisy Cheung, Samson Tse, Bonnie Siu, Elizabeth Fistein, Eric Cheung, Eileena Chui, Siuman Ng; (front row, L-R) John McMillan, Lucy Frith, Mark Hinchliffe, Michael Dunn, Peter Bartlett, John Dawson.

Thursday, August 31, 2017

6th Asian Privacy Scholars Network International Conference @ HKU (27 Sept 2017)

"The 6th Asian Privacy Scholars Network International Conference" 
organized by The Law and Technology Centre of the Faculty of Law, HKU
Date: 27th September (Wed), 2017 
Time: 9:00 - 19:00 
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, Centennial Campus, 
The University of Hong Kong

The Law and Technology Centre of the Faculty of Law, The University of Hong Kong, has the pleasure to host the 6th APSN International Conference on the 27th September 2017.
     This conference coincides with the 39th International Conference of Data Protection and Privacy Commissioners which will take place in Hong Kong from the 25th to 29th September 2017. Government officials, legal practitioners, academics, advocates and representatives of business and non-governmental organizations across the world will gather at this international conference. It is an opportune moment for APSN members to meet up during this period to study the latest developments of privacy and data protection across the globe.
     Challenges of privacy and data protection evolves at a rapid pace on par with new technology development. This APSN International Conference aims to give an update on the latest development, trends and status in privacy and data protection. We hope to gain insights and draw on experience from our speakers on current issues, including but not limited to Big Data analytics, data-driven governance, artificial intelligence, algorithms, and cyber security.

For more details, please click: http://www.asianprivacy.org/apsn2017/ 

Monday, August 28, 2017

Syren Johnstone & Nigel Davis Analyse the CITIC Case in the Market Misconduct Tribunal (HK Lawyer)

Syren Johnstone & Nigel Davis
Hong Kong Lawyer
July 2017, published online
Introduction: The Market Misconduct Tribunal recently found that a no material adverse change (“no-MAC”) statement published by CITIC Limited in 2008 did not constitute market misconduct under s. 277 of the Securities and Futures Ordinance (“SFO”) because the statement was unlikely to influence the market price of CITIC securities, and because it was not materially false or misleading.
     This came as a surprise to many because at the time of the statement, directors of CITIC were aware of but had not disclosed to the market that it was facing significant mark-to-market losses on foreign currency derivative contracts. When disclosed to the market weeks later, CITIC’s share price plunged, wiping out around HK$20 billion, or two-thirds, of its market capitalisation.  This article identifies some of the more important issues raised by the Tribunal’s findings and the SFC’s decision not to appeal.  Click here to read the full article.

HKU Law Faculty Members Comment on the Recent Jailing of Hong Kong Protesters

Julia Hollingsworth and Chris Lau
South China Morning Post
25 August 2017
On the night of September 26, 2014, amid the glare of television cameras and floodlights, student leader Joshua Wong Chi-fung leapt onto a fence around ­government headquarters in ­Admiralty.
     As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow ­student leader Alex Chow Yong-kang, galvanised others into ­action...
     Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.
     The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s ­independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics...
     The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said. “This is natural. You see it in other societies,” he said...
     But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.
     Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role...
     His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers...

Cliff Buddle
South China Morning Post
27 August 2017
The jailing of three prominent student leaders involved in Hong Kong’s Occupy protests has sparked a crisis of confidence in the city’s legal system and rule of law...
     University of Hong Kong law professor Simon Young said there should be more transparency in situations where the secretary for justice overrules senior prosecutors. In Canada, he said, there is a legal requirement that public notice be given when the Attorney General takes over control of a prosecution from the DPP. “It tells everyone I am intervening here, I am taking over. That will naturally have possible political implications and can attract the scrutiny of parliament. At least there is transparency. We don’t have that here,” Young added...

Catherine Lai
Hong Kong Free Press
24 August 2017
Hong Kong’s justice secretary has defending the jailing of three democracy activists, slamming claims that it amounted to political persecution...
Law professor Johannes Chan said during a Commercial Radio programme in response to Yuen’s comments that he accepted his explanation for the timing of the review, but Yuen should explain in detail whether the DOJ’s decision to review the sentences were mixed with considerations outside of legal ones – in order to dispel citizen’s concerns.
     In a column on Wednesday, Chan said that the first magistrate’s decision to hand down a lenient sentence, as well as the Court of Appeal’s decision to give a deterrent sentence, were both within the judiciary’s scope of discretion.
    “Even if we don’t agree with the Court of Appeal’s final judgement, it should not influence our belief in the judiciary’s independence,” he wrote...


Thursday, August 24, 2017

Inna Amesheva on Environmental Degradation and Economic Development in China (Law & Development Review)

Inna Amesheva (PhD Candidate)
Law and Development Review
July 2017, published online ahead of print
Abstract: The author argues that the deterioration of the natural environment in China provides a persuasive reason to reorient China’s economic growth towards a more sustainable path. Reconciling the development and environment imperatives needs to become an urgent priority for the Chinese government in order to avert the cascading implications that will arise in terms of social unrest, loss of further development opportunities as well as deepening income inequality. This paper thus examines the inter-relationship between the current ecological challenge in China and the need for economic sustainability. It evaluates the extent of environmental damage in China and focuses on the environmental impact on development and social inequality. The paper then examines the recent legislative measures that have been taken by the Chinese government to address the problem of inefficient environmental monitoring. The author suggests that further reform is needed to achieve an economically and ecologically just pathway for China’s future. The paper therefore demonstrates that the environment–development challenge in China is mainly a challenge of governance. Resolving it will contribute to better environmental justice and development.

Wednesday, August 23, 2017

HKU Partners in Three Continent FinTech/RegTech Research Collaboration

International collaboration of law experts from three continents towards global FinTech and RegTech research

To support Hong Kong's aspirations of becoming a financial technology (FinTech) hub, Professor Douglas Arner from the Faculty of Law at the University of Hong Kong (HKU) has joined forces with law professors from Europe and Australia to cooperate in researching the law and regulation of FinTech.
     Professor Arner will partner with Professor Dirk Zetzsche (ADA Chair in Financial Law/Inclusive Finance) at the University of Luxembourg and Professor Ross Buckley at the University of New South Wales (UNSW) in Sydney, Australia to form an international law team based in three continents and three major global financial centres.
     The team, alongside other renowned researchers and FinTech regulators, will present their latest work at the third annual FinTech Conference organised by the University of Luxembourg's Research Unit in Law on 9 October 2017.
     Since embarking on their collaboration early this year, the three FinTech and regulatory technology (RegTech) experts, in cooperation with HKU PhD candidate Janos Barberis, founder of the SuperCharger FinTech Accelerator headquartered in Hong Kong, have produced four draft papers on the impact of big data on the financial system¹, the challenges of regulating FinTech², a theory of smart regulation that considers different regulatory tools and their role in enabling or restricting innovation³ as well as an analysis of liability risk and its impact on the use and set-up of blockchain⁴. Together, their works have been downloaded more than 27,000 times on the Social Science Research Network (SSRN) and they have published over 30 scholarly articles and book chapters in the past year.
     The financial centres of Luxembourg, Sydney and Hong Kong have been responding to rapid technological innovation and disruption recently. In Hong Kong, for example, the 2017 government's Policy Address pledged to establish the city as a hub for FinTech application and setting of standards for cutting-edge FinTech. Commenting on the cooperation, Professor Zetzsche (currently in the top 10% of the SSRN's top 3,000 law authors globally) said: "Smartly regulating financial innovation requires all stakeholders - the financial sector, start-ups, regulators and academics - to understand technology and law. Only global research is able to grasp the true speed and depth of these developments." He was supported in his assessment by Professor Arner (currently 7th of the SSRN's top 3,000 law authors globally): "Financial technology, through big data, artificial intelligence, regulatory technology, crowdfunding, smart contracts, etc. changes the fundamentals of our regulatory system. Only financial centres that adjust their regulatory environment will be able to maintain and develop further their relevance." The potential for FinTech is substantial, added Professor Buckley (9th of the SSRN's top 3,000 law authors globally): "FinTech can tackle issues of transaction, compliance and risk management costs. But these benefits can come at a price - exchanging human errors for risks stemming from information technology. A smart, analytical approach is needed and this is where academic research can make a fundamental difference."
     The team's global FinTech and RegTech research cooperation is supported by three funding bodies: Luxembourg's National Research Fund contributed to an Intermobility Programme "Smart Regulation - Towards a New Law for FinTech", the Australian Research Council funding of the project "Regulating a Revolution: A New Regulatory Model for Digital Finance" and the Hong Kong Research Grants Council Theme-based Research Scheme providing financial support for "Enhancing Hong Kong's Future as a Leading International Financial Centre". The FNR's Intermobility Programme allowed Professor Zetzsche to spend three months at UNSW Sydney, where the cooperation was formalised.

Notes
¹ See Zetzsche, Buckley, Arner, Barberis, "From FinTech to TechFin: The Regulatory Challenges of Data-Driven Finance," available online https://ssrn.com/abstract=2959925, forthcoming New York University Journal of Law & Business (2018).
² Arner, Zetzsche, Buckley, Barberis, "FinTech and RegTech: Enabling Innovation while Preserving Financial Stability", forthcoming Georgetown Journal of International Affairs (2018).
³ Zetzsche, Buckley, Arner, Barberis, "Regulating a Revolution: From Regulatory Sandboxes to Smart Regulation", available online https://ssrn.com/abstract=3018534.
⁴ Zetzsche, Buckley, Arner, "The Distributed liability of Distributed Ledgers: Legal Risks of Blockchain", available online https://ssrn.com/abstract=3018214.

Media enquiry
Ms Rhea Leung, Communications and Public Affairs Office, The University of Hong Kong (Tel: +852 2857 8555; Email: rhea.leung@hku.hk; Website: www.hku.hk )
Ms Laura Bianchi, Communications Department, University of Luxembourg (Tel +352 46 66 44 9551;
M +352 621 547 950; Email: laura.bianchi@uni.lu; Website: www.uni.lu )
Ms Clare Morgan, Media Office, UNSW SYDNEY (Tel +61 (2) 9385 8920; Email: clare.morgan@unsw.edu.au; Website: law.unsw.edu.au )
For the online press release, click here.

Tuesday, August 22, 2017

Des Voeux Chambers Oxford-HKU Visiting Fellowship Public Lecture (7 Sept 2017)

Des Voeux Chambers Oxford-HKU Visiting Fellowship
Public Lecture

Chaired by The Honourable Mr Justice Jonathan Harris,
Judge of the Court of First Instance of the High Court

Date: 7 September 2017 (Thursday)
Time: 18:30 – 20:30 (Drinks reception will be held after the lecture)
Venue: Academic Conference Room, 11/F Cheng Yu Tung Tower, 
Centennial Campus, The University of Hong Kong

Humans as a Service? The Promise and Perils of Work in the Gig Economy 
Dr Jeremias Prassl
Uber, Didi, Deliveroo, Amazon’s MTurk, UpWork, TaskRabbit &co: On-demand work in the gig economy has had a profound impact on traditional conceptions of employment relationships. The completion of ‘tasks’, ‘gigs’ or ‘rides’ in the (digital) crowd fundamentally challenges our understanding of work in modern labour markets: gone are the stable employment relationships between firms and workers, replaced by a world in which everybody can be ‘their own boss’, enjoy the rewards – and face the risks – of independent businesses. Litigation between workers, customers, and platforms is on the rise all over the world, with many fundamental questions raised by gig economy work still lacking authoritative answers. 
     Dr Prassl’s talk will explore some of the key questions raised in his new book, Humans as a Service (Oxford University Press, forthcoming 2017): Is this the future of work? What are the benefits and challenges of working in the gig economy? And is platform work really fundamentally different from existing work arrangements, as many providers claim? Most importantly, how should the law respond and regulate on-demand economy work?
     Dr Jeremias Prassl is an Associate Professor in the Faculty of Law at the University of Oxford, a Fellow of Magdalen College, and Deputy Director of the Faculty’s Institute of European and Comparative Law. He read law at Oxford and Paris II (MA, DPhil) as well as Harvard Law School (LL.M.), and has held visiting positions at institutions including Columbia Law School, the Max Planck Institute Hamburg, UCL, WU Vienna, and Yale Law School. His principal research interests are in the fields of Employment Law, Corporate Law, and European Union Law (with a particular focus on Civil Aviation). 

Justifying Damages: Corrective Justice, Civil Recourse, or Something Else
Dr Sandy Steel
It has usually been thought that the breach of a primary tortious or contractual duty causing actionable harm gives rise immediately to a secondary duty to pay damages. Recently, this view has come under challenge: it has been argued that breach of such a primary duty gives rise only to a legal liability to pay damages. The liability view, as we can call it, is thought to pose a challenge to corrective justice theories of damages which claim that the justification of damages (sometimes) rests upon a secondary moral duty. In this lecture, Dr Steel offers some new arguments for the duty view, but suggests that, even if the legal liability view turns out to be correct, the moral duty of repair may still be crucial to justifying the existence of the liability. In doing so, Dr Steel suggests that the morality of self-defence helps to illuminate aspects of the law of damages.
     Dr Sandy Steel is an Associate Professor in the Faculty of Law at the University of Oxford, and also a Fellow of Wadham College. He read law (BA, PhD) at Corpus Christi College, Cambridge. From 2010-2014 he was a Lecturer in Law at King’s College London. He is interested in the English, French, and German law of obligations and in philosophical questions about that area of law. He has written mainly about torts. He also maintains an interest in general jurisprudence. 
     Click here to register online. Should you have any enquiries, please feel free to contact Kerry Ng by email at ngkerry@hku.hk.

Google+ Followers