Sunday, November 19, 2017

Michael Jackson on Determining Criminal Dishonesty, Implications of the UKSC's Ivey v Genting Casinos for Hong Kong

"Determining criminal ‘dishonesty’: a new challenge for our courts"
Michael Jackson
Boase Cohen & Collins Blog
16 November 2017
What makes a defendant ‘dishonest’ under Hong Kong’s criminal law? Uncertainty about this has been introduced into the criminal law of Hong Kong by the recent decision of the UK Supreme Court in Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 (hereafter ‘Ivey’). Ivey, a professional gambler, claimed to have ‘honestly’ relied on a sharp-eyed ‘edge-sorting’ technique while playing cards in a casino, leading to substantial winnings. Not so, ruled the Supreme Court, declaring that Ivey had taken positive steps to ‘hoodwink’ casino staff and facilitate edge-sorting, and thus acted dishonestly. In so doing, the Supreme Court considered and rejected the ‘second leg’ (as it is called) of the ‘Ghosh direction’ on ‘dishonesty’, formulated by the English Court of Appeal in 1982 (R v. Ghosh [1982] 1 QB 1053), which Ivey had relied on to deny ‘dishonesty’. According to this direction, a jury or other fact-finder tasked with determining whether a defendant acted ‘dishonestly’:
‘...must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’
     Neither ‘dishonesty’ nor ‘dishonestly’ are statutorily defined in Hong Kong, save for the express exclusion of certain ‘beliefs’ in s.3 of the Theft Ordinance in relation only to theft (eg. D’s taking of another’s property is not to be regarded as ‘dishonest’, and thus not theft, if he took it ‘in the belief that he has in law the right to deprive the other of it’ or ‘in the belief that she would have the other’s consent if the other knew of the [taking] and the circumstances of it’). This left both a definitional gap in the criminal law, and also an analytical uncertainty, namely, does ‘dishonesty’ relate to and characterize the conduct element of dishonesty-based offences such as theft, or is it a separate mental element for such offences? Some jurisdictions have adopted the first analysis (eg. Canada), but the UK courts, in Ghosh, came down on the side of dishonesty being a mental element.
     In relation to the definitional gap, Ghosh did not actually define what had to be proved to establish this mental element. Instead, it directed fact-finders to apply their understanding of community standards of honesty and dishonesty to determine whether a defendant’s conduct falls the wrong side of the line, and then ask whether they can be sure the defendant ‘realised’ his or her conduct was ‘dishonest’ by those standards. The Ghosh direction was readily adopted in Hong Kong, and has been largely applied ever since, despite its somewhat open-ended and imprecise language. Its use was given the seal of approval by the Court of Final Appeal in Mo Yuk Ping ((2007) 10 HKCFAR 386). Importantly, the CFA in Mo affirmed that ‘dishonesty’ is a ‘state of mind’, even though Mo was charged with conspiracy to defraud at common law, necessitating proof of ‘dishonest means’, rather than just ‘dishonesty’. As to its meaning, Sir Anthony Mason NPJ, for the Court, stated (at para.48):
‘Although dishonesty in its ordinary sense does not lend itself to definition, it is not an arbitrary standard and a citizen should have little difficulty in appreciating what is dishonest judged by the ordinary standards of reasonable and honest people.’
     As the CFA affirmed, the first ‘leg’ of the Ghosh direction requires assessment of the defendant’s conduct (‘what was done’) against community standards of ‘honesty’ and ‘dishonesty’, and involves the application of an ‘objective’ test by fact-finders. In other words, the standard is fixed by the fact-finder, reflecting its intuitive sense of community standards, and is external to the defendant’s personal view about what amounts to dishonesty. But the second - or ‘subjective’ - leg directs attention to the defendant’s state of mind, and was intended to prevent conviction of a person acting with a state of mind which would negate a finding of dishonesty, or perhaps without sufficient understanding of the concept of honesty (eg. a person of low intelligence). So for example, a customer who leaves a shop without paying for an item, thereby acting in a manner which would prima facie be considered dishonest by ordinary standards, but who claims to have been distracted or absent-minded at the time, may pray in aid Ghosh’s second leg to prevent conviction, assuming that none of the three exclusions in s.3 of the Theft Ordinance apply (cf. someone who leaves the shop in the mistaken belief the item is a ‘free sample’, who could rely on either s.3(a) or (b)). Since s.3 applies only to the offence of theft, the second leg expands to encompass those same s.3 beliefs in relation to offences of dishonesty other than theft... Click here to read the full article.

Friday, November 17, 2017

Youth Civic Engagement in Hong Kong (new book chapter co-authored by Puja Kapai)

"Youth Civic Engagement in Hong Kong: A Glimpse into Two Systems Under One China"
Liz Jackson, Puja Kapai, Shiru Wang, and Ching Yin Leung
Citizenship Education in Comparative Perspective (Palgrave Macmillan US), ch 4
Introduction: This chapter examines youth perceptions regarding civic engagement during a tumultuous time in Hong Kong.  We begin by examining the historical context of Hong Kong, tracing changes in its political status and educational system in relation to civil attitudes and behaviors of its population over time, particularly as Hong Kong shifted from a colony of the British Empire to a Special Administrative Region (SAR) of the People's Republic of China towards the end of the twentieth century.  Next, the chapter discusses the findings of a study of Hong Kong youth perceptions of civic engagement, comparing the views of youth with two distinct prior experiences of civic education: university students in Hong Kong who were previously educated in Hong Kong or Mainland China.  The study reveals significant differences between these groups, with important implications for reforming civic education in Hong Kong. 

Thursday, November 16, 2017

Shahla Ali and Odysseas Repousis on Investor-State Mediation and the Rise of Transparency in International Investment Law (Denver J Int'l L & Pol'y)

"Investor-State Mediation and the Rise of Transparency in International Investment Law: Opportunity or Threat?"
Shahla F. Ali and Odysseas G. Repousis
Denver Journal of International Law and Policy
2017 winter, Vol. 45, p. 225
Introduction: Today, more than ever, the role of investor-state mediation cannot be appraised without regard to the mounting concerns against investor-state arbitration. Investment treaties typically protect nationals of one Contracting Party (natural persons or corporations) when realizing investments in the other Contracting Party State. The most common form of such treaties is the bilateral investment treaty (BIT). As of today, more than 2,800 BITs have been concluded, 2,100 of which are in force. To these treaties one may add regional free trade agreements that include investment chapters or regional investment treaties. One of the many examples is Chapter 11 of the North American Free Trade Agreement (NAFTA) that covers investments. All of these treaties provide for substantive rights and protections such as the prohibition against uncompensated expropriation and various non-discriminatory standards. However, investment treaties have [*226] attained their present recognition due to their dispute settlement provisions and particularly the investor-state arbitration clause almost mechanically inserted in the majority of such treaties. This arbitration clause enables investors to directly sue the host state for breaches of the investment treaty in an international arbitral tribunal typically comprised of three members. Investor-state arbitrations are either ad hoc or institutional, with the most well regarded institutional body being the International Centre for the Settlement of Investment Disputes (ICSID) established by the Washington 1965 Convention.
     Over the past three decades, investor-state arbitration proliferated with ICSID registering fifty cases per year and administering more than two hundred at any given time. The most frequent respondent states are Argentina (more than fifty cases), Venezuela, Czech Republic, Egypt, Canada, Mexico, Ecuador, India, Ukraine, Poland, and the United States. The increasing use of investor-state arbitration has also been met with opposition and a widespread consensus for the need of reform.  Over the past few years, Bolivia, Ecuador and Venezuela withdrew from the ICSID Convention and terminated a considerable number of BITs. More recently, South Africa and Indonesia have also filed notices to [*227] terminate BITs.
     The opposition towards investor-state arbitration stems, in many regards, from the characteristics of such contemporary dispute settlement procedures. In a nutshell, a significant number of investment arbitration cases involve investment in public service sectors and public utilities; investment claims arising out of emergency economic measures or civil unrest; and cases that revolve around issues of public health, environmental regulation, and human rights, in general. Moreover, investor-state cases often involve allegations of state misconduct and corruption, are costly dispute settlement procedures, and the payment of compensation in connection with any arising arbitration awards is borne by the taxpayers of the host state. All these factors are to the interest of the local population as the objectives of foreign investors, governments, and local populations are oftentimes conflicting. Investor-state arbitration has also been criticized for enabling the so-called "regulatory chill", which is a hesitancy to implement a higher degree of regulation in fear of investment arbitration claims.  [*228] As later discussed in this article, another source of concern for investor-state arbitration is the lack of transparency in such transnational proceedings. Finally, another concern that is frequently raised is the use of investor-state arbitration to circumvent national courts and the perceived bias of arbitrators, that act both as counsel and as arbitrator in related proceedings.
     The above concerns have influenced the drafting of contemporary investment treaties and have also led to initiatives seeking to reform some of the perceived deficiencies of international investment law. The most notable of such initiatives is the rise of transparency discussed in Part IV of this article.  Suffice however to say, that it should not be hard to see that greater transparency in investor-state arbitration is aimed at alleviating some of the concerns referred to above. Investor-state mediation is nevertheless a pre-arbitration dispute resolution method that, if successful, eliminates the need to pursue investor-state arbitration. However, as we will see, mediation in general and investor-state mediation in particular, is highly confidential. Would this then mean that investor-state mediation may be used in order to circumvent national courts without the need to adhere to the increasing standards of transparency and other public concerns that are sought to be addressed when it comes to investor-state arbitration? In other words, if the concerns raised with regard to investor-state arbitration have merit, why shouldn't they be applicable with respect to any investor-state dispute settlement proceeding? In addition to these questions, one should also take into account that the United Nations Commission on International Trade Law (UNCITRAL) is considering a multilateral convention on the enforcement of mediated settlements. If this treaty were to be concluded, would it mean that investor-state mediation would not only be a convenient method to avoid [*229] the high levels of transparency now paradigmatic to investor-state arbitration, but would also enjoy high levels of international enforceability?
     For now, these arguably legitimate concerns may be kept as a working hypothesis, or an issue to be determined after the apposition of three tenets. The first is the role of negotiation and pre-arbitration consultations in international investment law discussed in Part II of this article. With respect to this tenet, this article shows that investment treaties usually provide for negotiation and pre-arbitration consultation periods as a means to promote the amicable resolution of disputes between investors and host states. Given however that investor-state mediation is a distinct dispute resolution method, an examination of negotiation and pre-arbitration consultation periods is required in order to more fully detail the role and potential use of investor-state mediation. The second tenet is dealt with in Part II that focuses on the development and evolution of investor-state mediation as a distinct pre-arbitration dispute resolution procedure. Specific weight is given to two recent developments, the adoption by the International Bar Association (IBA) of a distinct set of rules for investor-state mediation that took place in 2012, and the appearance of distinct investor-state mediation provisions in recent investment treaties. Finally, the third tenet is the rise of transparency in investor-state arbitration that is discussed in Part III. In particular, this part lays out the main characteristics of the UNCITRAL Rule on Transparency and of the Mauritius Convention on Transparency in investor-state arbitration. With these three tenets in place, Part V, analyzes the implications of transparency in international investment law to the future role and importance of investor-state mediation.

Tuesday, November 14, 2017

Eric Ip on Debiasing Regulators and the Behavioral Economics of US Administrative Law (CLWR)

"Debiasing regulatorsThe behavioral economics of US administrative law"
Eric Ip
Common Law World Review
October 2017, Vol. 46, Issue 3
Abstract: Behavioral economics has revolutionized American legal scholarship in many areas of law, but not in administrative law, the law that regulates the regulators. This article theorizes that the administrative law doctrines developed by the Supreme Court of the United States strikingly resemble a system of ‘debiasing’ devices developed to counteract bureaucratic and judicial behavioral failures in just the areas that they matter most. A strong, alternative, justification may thus exist for the enduring paradox of American administrative law that administrators should be prepared to have their substantive decisions scrutinized by ‘hard look’ reviewing courts, while judges should be ready to defer to agencies on questions of statutory interpretation.

Sunday, November 12, 2017

Bryane Michael & Say Goo Corporate Governance Regulatory Reform in Hong Kong (Business Law Review)

Bryane Michael & Say Goo
Business Law Review
2017, Vol. 38, Issue 3, pp. 89-100
Abstract: Why does regulatory change occur much more slowly in some jurisdictions than in others? In this article, we look at the gradualist pace of Hong Kong’s corporate governance-related regulatory reform – particularly with regard to shareholder protection. We extend the concept of ‘legal transactions costs’ to explain such slow change. Costs of learning, experimenting and satisfying various constituencies about the advantages to their own interests of such reform represent some of these legal transactions costs. We describe how such legal transactions costs have worked against the creation of a minority shareholders’ association, the professionalization of board-directorships and the incorporation of soft law provisions in the Hong Kong Stock Exchange’s Listing Rules into hard law. We describe what the end result of such reform might look like – to assess the gap between current and possibly reformed corporate governance.

Friday, November 10, 2017

Yash Ghai Interviewed on Constitution Making and Sri Lanka (Daily Mirror)

Amra Ismail
Daily Mirror
9 Nov 2017
In a recent visit to Sri Lanka, at the invitation of Democracy Reporting International, Yash Ghai shared with the Dailymirror the Kenyan experience of constitution making...

Q. Could you trace how Kenya was able to introduce a new constitution in 2010? 
It took a longtime. Discussions about a new constitution commenced about 12 years before we finally had the constitution. There are a number of reasons as to why it took that long. We were experiencing a very momentous period from a situation of a one party state to a very democratic constitution. So it took time to persuade the regime. 
     Fortunately, the people were very keen on a very democratic system which is fair to all the communities, and that helped us a lot. People appreciated what we were doing. The politicians also realized that the people were in support of a more democratic, participatory process. So in the end we put the draft to a public referendum and it was approved by 70% of the voters. It took a longtime because politicians kept changing their mind. 
     I think people were longing for a change for a long time because we’ve had two very tyrannical presidents, who completely monopolized state power. 

Q. Since it took 12 years for the Constitution to be introduced, was the same draft used? What exactly was the process?
One advantage we had-may be over the system here- is that there was a commission appointed to propose a Constitution. This was a mixture of academics and civil society people. There were no politicians involved. I chaired that commission. We had good resources. We had enough money from Parliament and I didn’t need to raise money from outside. So in comparison to the work the commission achieved within 4 or 5 years, the period before wasn’t so formulized. But the civil society had become very active and they had been meeting and putting pressure on the Government. They had even done a rough draft of the Constitution. Ours was much longer and more sophisticated. But we did use the draft they had made. By that time there was strong public support. I think that was basically what kept the process going... 

Q. In Sri Lanka, the constitution making process has gone beyond the stage of the Public Representations Committee (PRC) report and the interim report has been released. When it comes to debating the interim report, do you think it’s still important to consult the public and obtain their views? 
Oh, yes, I think it’s essential during all the stages. They have to be consulted and there has to be publicity for all the discussions that take place in parliament or committees. In our case it wasn’t a parliament. It was produced by 15 of us after all these consultations I mentioned and all the research. Not a single politician was involved and they didn’t like some parts, and I said ‘sorry, people in this country want it’. So I would say continue with the dialogue with the people... Click here to read the full article.

Thursday, November 9, 2017

Michael Ng on Access to Justice in Rural China: A History of Atypical Legal Development and Legal Service Provision (The China Review)

"Nonprofessional Access to Justice in Rural China: A History of Atypical Legal Development and Legal Service Provision"
Michael Ng and Xuanming Pan
The China Review: an Interdisciplinary Journal on Greater China
October 2017,  Vol. 17, No. 3, pp. 59-86
Abstract:  This article provides a corrective to the conventional discourse on legal development in modern and contemporary China. By mapping the landscape of nonprofessional legal service provision crossing over modern and contemporary history, this research proposes a new analytical framework for understanding lawyering, professionalization, and access to justice in China. Previous studies present an urban-centric view and highlight the alternativeness and transitional nature of nonprofessional legal service providers (who operate primarily in rural China) vis-à-vis the professionally trained and qualified lawyers (who serve primarily in urban China). The urban-oriented discourse downplays, if not ignores, the historical fact that the ordinary people of China, mostly residing in rural areas, have relied on nonprofessional legal workers as their mainstream access to justice for centuries, with demand for their services remaining largely unchanged throughout the Qing, Republican, Mao, and post-Mao eras despite the attempted monopolization of the legal market by qualified lawyers. This article therefore argues for a reorientation of the conventional inquiry concerning the path toward the professionalization of lawyering in China that is framed in terms of license-based expertise and access. Rural legal workers, this article further argues, will, and should be allowed to, continue to meet the legal demand of the broader rural masses in China, demand that can hardly be met by the socially elite qualified lawyers practicing in urbanized China and provide, together with the qualified legal profession, dual-core access to justice in China.

Sunday, November 5, 2017

Shitong Qiao on Dealing with Illegal Housing: What Can New York City Learn from Shenzhen (Fordham Urban LJ)

2016, Vol. 43, Issue 3, pp. 743-769
Abstract: In New York City, owners violated zoning regulations and opened up their basements, garages, and other floors to rent to people (particularly low-income immigrants) priced out of the formal market. The more than 100,000 illegal dwelling units in New York City (NYC) were referred to as “granny units,” “illegal twos or threes,” or “accessory units.” Due to the safety and habitability considerations of “alter[ing] or modif[ying] of an existing building to create an additional housing unit without first obtaining approval from the New York City Department of Buildings (DOB),” the City government devoted a lot of resources to detecting and stopping such illegal conversion. Recently, however, Mayor Bill de Blasio proposed to legalize such illegal dwelling units to increase the City’s rent-regulated housing stock. The question remains as to whether crackdown or legalization is the right policy. Such illegal housing is not unique to NYC. Shenzhen, a city in south China that experienced a population explosion from 300,000 to over 10 million within three decades, faces the same problem as NYC: legal housing supply cannot catch up with the population growth, resulting in prevalent illegal housing supply. Almost half of Shenzhen’s buildings have been built illegally and now host over eight million migrant workers and low-income residents. In the past three decades, the Shenzhen city government has swung between legalization and crackdown of such illegal buildings, neither of which has resolved the problem. Due to the large number of illegal apartments, the “crackdown” option has proven to be impossible, while legalization has incurred huge information costs and encouraged more illegal constructions. In more recent years, though, the Shenzhen city government has discovered an effective policy: Keeping the city government’s zoning power intact while granting an option to owners of illegal housing to buy an exemption. The lesson from Shenzhen is that options matter at least as much as the allocation of initial entitlements. In the case of prevalent zoning violations, these options should be granted to parties that have the best information to make decisions — the numerous individual owners rather than the government. I propose that this optional zoning approach should be taken in dealing with illegal housing in New York City.  Click here to download the full article.

Rong Du on China's Approach to Space Sustainability: Legal and Policy Analysis (Space Policy)

"China's approach to space sustainability: Legal and policy analysis"
Rong Du (SJD 2017)
Space Policy
October 2017
Introduction: The concept “space sustainability” came to the landscape of international space community in response to the increasing concerns over the safety and security of outer space in recent years, especially the risk posed by long-lived space debris. By far, there is no agreed definition on space sustainability. It often appears in association with space safety and space security or encompasses the meaning of safety and security in outer space, with an emphasis on the long-term impact of current space activities and due considerations deserved by future generations.1 The threats to space assets may come from the collision risk posed by orbital debris and asteroid or interferences from hazardous space weather.2 Space debris is the most serious issue. States have been dealing with space debris from two perspectives, debris mitigation and removal, and monitoring space debris through space situational awareness (SSA) capability. China started to develop the space industry since the 1950s and has carried out various space programs. After efforts of several decades, it has become autonomous in the construction and launch of satellite. By far, it possesses almost 150 satellites in orbit. It also has made remarkable progress in the exploratory and scientific missions, such as human space flight and lunar exploration. It will continue to give a high priority to the space sector for the purpose of boosting economic growth and safeguarding national security. Yet, due to the lack of national space policy, there have always been concerns on how China will carry out space activities in a responsible and sustainable way. The previous researches discussed China's performance in tackling space debris from the legal perspective. But they overlooked the policy aspect and did not address the implications of the civil-military relationship for the space sector. Among the external observers, there are different understandings toward China's strategy in outer space. The 2007 anti-satellite (ASAT) test is often cited as an evidence of China's ignorance to the sustainability of outer space environment. Yet the underlying causes should be carefully studied, other than widely speculated. Meanwhile, China has become more proactive in the multilateral efforts aiming to create new norms for space sustainability. Its participation carries substantial weight in the conclusion of the agreements. These instruments, once adopted, will contribute to shape China's behaviors in outer space. This paper examines the parameters that are affecting China's approach to space sustainability and suggests how China could make systematic efforts toward space sustainability, with a major focus on the civil-military interaction. Part 2 reviews the space governance structure and the progress made by China by far. Part 3 examines the 2007 ASAT test from the perspectives of the civil-military gap, the US's responses, and the military sector's narratives on space strategy. Part 4 further discusses to what extent the newly created Central National Security Commission (CNSC) and the military reform will fill the civil-military gap and facilitate the deliberation of space policy. Part 5 draws the correlation between ASAT capability and the Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT) and discusses the political factors pertaining to the prospect of the PPWT. It also discusses how far China is from the International Code of Conduct for Outer Space Activities (ICoC), taking into account the interactions between the PPWT and the ICoC.

Thursday, November 2, 2017

Farzana Aslam on Harvey Weinstein and the Bystander Effect (HKPF)

29 October 2017
Harvey Weinstein’s fall into disgrace bears remarkable similarities to the scandal a few years ago in the U.K. about the British celebrity, Jimmy Savile. These two cases have common features in terms of how sexually predatory behaviour is perpetrated, perceived, and ultimately perpetuated.
     The male perpetrators in each case had achieved a certain status and standing in society; they were powerful and popular. Their alleged predatory behaviour was directed at the young and vulnerable. The predatory behaviour spanned decades... Click here for the full text.

New Book by Michael Ng: "Kids also know the law"《細路都識法》(Joint-Publishing)

"Kids also know the law"《細路都識法》
Michael Ng
Joint-Publishing (H.K.) Co., Ltd.
October, 2017, in Chinese, with illustrations in pictures, 161 pp
Foreword by Professor Albert Chen
Description: This is a book for kids to acquire legal knowledge and broaden their horizons.  It is a new innovative book for parents to read with kids outside the classroom, a new way for kids to think critically about their everyday lives.
     The story is about a father who has two daughters.   Ten years ago, Dr Michael Ng wished to write a book for kids to read, but he thought it would be hard to make the reading for kids interesting.  Until he had his own two daughters, he realized that to make sure kids learn a moral lesson, he had to let them think and ask questions on their own and to ponder everyday life.  Only until they came to understand how morality could be interconnected with their everyday life, they would be stimulated to read widely and think critically.  Thus, he created this "law book" with kids as the focus; each story is related to their daily family life, school life, social life, etc.  There are three characters in the story, they are Kitty Treasure, little primary school girl Ching and her brother Long, who all know the law well.   Dr Ng's aim was to integrate law into the everyday life of kids in a lively and stimulating way. 
    Why do kids also need to know the law?  In Dr Ng's own words,
'I wish kids after reading this book will be aware of Hong Kong's good and proper legal system and traditional rituals that reinforce respect for human beings.  Although law cannot solve all problems in life, law can protect us.  It is because we need to protect our future generation to sustain the rule of law, this book is meaningful by passing on the message through reading from generations to generations.' 
(內容簡介

這是一本專門寫給小朋友的法律書,更可能開創了知識類課外書和父母教養小朋友的新範式——一種以孩子生活和思考角度為本位的教導方法。

故事要從兩個女兒的父親——吳海傑博士說起。十年前,他就很想為小朋友寫一本法律書,但卻不知道如何令小朋友覺得有趣。直至有了兩個可愛的女兒,他才知道:要讓孩子明白道理,你先要讓他們知道為什麼要明白;當他們明白了道理和他們的生活有什麼關係,才會有興趣繼續閱讀和思考。因此,他創作了這本以孩子為本位的法律書,每一個故事都與孩子平日的家庭生活、學校生活和社交生活有關;故事的三位主角,是熟識法律的可愛貓咪法寶、小學女生晴晴和她的哥哥朗朗。不包羅萬有,也不沉悶刻板,務求描述孩子每天生活中的法律元素。

爲什麽細路都要識法?

「我希望小孩子讀完這本書後會知道香港是個守法知禮的社會,法律雖然不能夠解決所有問題,但可提供最基本的保護。而這種保護未來能否維持下去,便要靠讀這本書的一代人了。」)

Wednesday, November 1, 2017

Richard Cullen on Whether the National Anthem Law Should Apply Retrospectively (SCMP)

Richard Cullen
South China Morning Post
1 November 2017
A new national anthem law came into force in mainland China on October 1. The law will be added to Annex III of the Basic Law. Hong Kong is due to apply the law, adapted for the city, fairly soon.
     Most debate – implicitly accepting that the law will be applied in Hong Kong – has pivoted around the question of whether this law could be applied retroactively. This discussion has arisen, above all, because of the continuing verbal and written scorn directed at the national anthem at certain sporting events in Hong Kong. Some have argued that to discourage such behaviour, retroactive implementation of the law should be considered.
     Various claims made by certain lawyers and lawyer-politicians in essence argue that retroactive laws – or retrospective laws – do not exist within the criminal laws of the common law system. It follows from this, it is said, that the national anthem law (which will apply some level of criminal sanctions to any breaches) cannot be made to apply retroactively. Unfortunately, these claims are simply wrong. The highest courts in the UK and Australia, for example, have each given the green light to retroactive criminal laws... Click here to read the full article.

Tuesday, October 31, 2017

Richard Cullen on The Credibility of Far East Political Reporting (IPP Review)

"The Credibility of Far East Political Reporting"
Richard Cullen
IPP Review
published on Oct 24, 2017 online
Introduction: Imagine a well-organized group of young British political activists, demanding greater input into governance decisions, taking over the House of Commons and occupying it for around four weeks — closing down all parliamentary operations — and also taking over key offices in Whitehall for a time. Next, imagine a similarly focused group of activists, later the same year, staging very large, mass political reform demonstrations — running for around three months — occupying key public thoroughfares in Central London, including Piccadilly Circus, Marble Arch and Whitehall, shutting down virtually all vehicular transit as they demand “true democracy” and the Prime Minister’s resignation.
     How would the mainstream media in the UK, including, for example, the BBC and The Guardian, respond? In these circumstances, would they pay little attention to the pretexts for the protests and their proportionality? Would their coverage be dominated by a retelling of the narratives supplied by the protesters and intense coverage of all perceived lapses in official and police reactions — accompanied by a steady degree of support for the protestors?
     It is hard to imagine that this would be so — that the coverage would be so tilted. Yet this is a fair summary of the way that much of the media from the UK covered the “Sunflower Movement” in Taiwan in early 2014 and the “Occupy Central Movement” (OCM) — also known as the “Umbrella Movement” — in Hong Kong later that year...  Click here to read the full article.

Monday, October 30, 2017

Lusina Ho's Account of Accounts (Singapore Academy of Law Journal)

"An Account of Accounts"
Lusina Ho
Singapore Academy of Law Journal
2016, Volume 28, pp 849-883 (Special Issue on Remedies)
Abstract: The equitable accounting rules are notorious for being ancient and technical, and hence hinder the development of the rules governing compensating claims against trustees. The present article seeks to overcome these difficulties by conducting a historical survey of the traditional accounting rules in order to identify their governing principle. It argues that equity acts on a principle different from common law, in that the purpose of accounting is to restore the beneficiaries or the trust fund, as from the time when the trustee departed from his duty, to the position they would have been in had the trustee performed his duty. This way, equity achieves exact justice so that the beneficiaries will not be kept out of their rights from the time when performance was due to the time when it is actually obtained. To do so, equity adopts the legal fiction of treating the unauthorised disbursement as having never been made and the property as having already been obtained. The article argues that this fundamental norm should also be applicable to equitable compensation, and proposes analysing this remedy on the basis of the duties breached, rather than the type of breach as in traditional accounting rules. It then uses this new framework to propose detailed remedial rules for various breaches of duty by the trustee.  Click here to download the full article.

HKU to Host Major International Public Law Conference in June 2018 (ICON-S)

HKU is proud to be hosting the International Society of Public Law's annual conference from 25-27 June 2018.  This major international event will commence the series of activities to celebrate the Faculty of Law's 50th anniversary in 2019.  For more information on the ICON-S 2018 conference, click here.

CALL FOR PANELS AND PAPERS

Identity, Security, Democracy: Challenges for Public Law

ICON-S 2018 Annual Conference
Hong Kong, June 25-27, 2018

The International Society of Public Law (ICON-S) is pleased to announce that its 2018 Annual Conference will be held in Hong Kong on June 25-27, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law – one of Asia’s foremost centres for the study of public law in all its varieties. This will be the fifth Annual Conference of ICON-S, following the four Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017) which have been overwhelmingly successful, thanks to the support of our Members.
     ICON-S now invites paper and panel submissions for the 2018 Annual Conference. The overarching theme of the Conference will be “Identity, Security, Democracy: Challenges for Public Law.”
     Modern identity struggles and the search for constitutional and legal mechanisms that can accommodate diversity occur at many levels including the national, supra-national, local, individual, and collective; and also involve multiple dimensions: ethnic, racial, religious, gender, sexual, and cultural, to name but a few. In recent years, identity claims and security issues have taken centre stage in law and politics, prompting realignment of domestic, regional and international orders. Technological advancement has to some extent countered traditional security concerns, but has given rise to new ones as well as to issues of privacy and political control. At the same time, democracy, a widely revered political ideal for addressing differences and realising human aspirations, is facing challenges in many parts of the world. How should public law respond to these changing circumstances? Asia – with some of the most diverse cultures in the world, where domestic and regional security threats and human rights violations loom large, and where democracy is a relatively recent and at times fragile phenomenon or still under experimentation – offers a unique setting for fresh thinking on these and other closely-related themes.
     The Conference will include a keynote address by The Rt Hon the Lord Neuberger of Abbotsbury, former President of the Supreme Court of the UK (2012-2017), as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.
     ICON-S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. In any case, paper and panel proposals need not be limited to those themes, and may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.
     We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.
     We invite potential participants to refer to the ICON-S Mission Statement when choosing a topic or approach for their papers or panels.
     ICON-S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the study of identity, security, democracy and public law. We welcome submissions from both senior and junior scholars (including advanced doctoral students) as well as interested practitioners.
     All submissions must be made through the ICON-S website (here) by January 31, 2018. Successful applicants will be notified by March 1, 2018.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON-S Hong Kong 2018!

Gráinne de Búrca (NYU) & Ran Hirschl (University of Toronto)
Co-Presidents of ICON-S

Richard Albert (Boston College); Lorenzo Casini (IMT School for Advanced Studies, Lucca); Cora Chan (HKU); Albert Chen (HKU); Rosalind Dixon (University of New South Wales); Kelley Loper (HKU); Joseph Weiler (NYU); Simon Young (HKU)
Members of the ICON-S 2018 Organizing Committee

Saturday, October 28, 2017

New Issue: SSRN Legal Studies Research Paper Series (HKU)

                                                              
Vol. 7, No. 9: Oct 24, 2017


Po Jen Yap, The University of Hong Kong - Faculty of Law

Shitong Qiao, The University of Hong Kong - Faculty of Law

Wendell Pritchett, University of Pennsylvania Law School
Shitong Qiao, The University of Hong Kong - Faculty of Law

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Friday, October 27, 2017

Michael Jackson Interviewed on ICAC Search of China Jinmao's Hong Kong Office (FT)

"China Jinmao's Hong Kong office searched in corruption probe"
Don Weinland and Hudson Lockett
Financial Times
25 October 2017
Hong Kong’s anti-corruption watchdog has searched the offices of China Jinmao Holdings, the property arm of chemicals group Sinochem, in a rare example of the local agency investigating a state Chinese group. Jinmao said in a regulatory filing that the Independent Commission Against Corruption had searched its main offices in Hong Kong and “invited” its chief financial officer Jiang Nan to visit the body in relation to an investigation... 
     Michael Jackson, associate professor at the University of Hong Kong’s Faculty of Law, said the ICAC had generally shied away from investigating and prosecuting cases involving Chinese state-owned enterprises. He said this was due in part to its jurisdiction over foreign entities and individuals essentially being limited to within the territory... 

Thursday, October 26, 2017

New Publications by Roda Mushkat

"Exploring International Environmental Governance Regimes: The Asian Way"
Roda Mushkat
Wisconsin International Law Journal

2017, vol. 34, pp. 585-667
Abstract: Ecological degradation and strategies to combat it have loomed increasingly large on the socio-legal research agenda for the past three decades or so. The scholarly attention they have garnered has spawned a rich literature on multi-level environmental governance, including on an international, and even global, scale. Social scientists have spearheaded the quest for gaining a deeper insight into the phenomenon, but students of law have also been active participants in the process of knowledge accumulation. Asian inputs have been relatively modest and have been produced comparatively late in the long journey of scientific, or quasi-scientific, discovery, yet they enhance the understanding of the issues broadly addressed, even if at times in a critical fashion, despite their selective focus and the paucity of constructively articulated suggestions for remedial action.

"The Political Economy of Constitutional Incrementalism in Hong Kong"
Roda Mushkat & Miron Mushkat 
2016, vol. 9, pp. 1-46 
Abstract: A highly developed, large, knowledge-rich, and mostly autonomous territory, acting as a global economic ‘matchmaker’ with residents who do not hesitate to openly express their voice through multiple channels, should ideally be endowed with institutional capital commensurate with its structural and functional attributes. That has not been the pattern observed in Hong Kong, whose political system has been reconfigured slowly and selectively, in a manner lacking a clear sense of purpose and coherence. The upshot is a governance regime that is out of tune with prevailing realities. Without resorting to ‘shock therapy’ and causing reverberations across the border, a version of deliberative democracy conducive to the pursuit of prosperity and stability may productively be embraced.

Wednesday, October 25, 2017

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

Inna Amesheva (PhD candidate)
Law and Development Review
July 2017, published online, Vol. 10, Issue. 2
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.

Tuesday, October 24, 2017

Eric Ip and Kelvin Kwok on Judicial Control of Local Protectionism in China (J Comp L & Econ)

Eric Ip and Kelvin Kwok
Journal of Competition Law & Economics
Oct 2017
Abstract: This article studies the rise of judicial review of local administrative monopolies in contemporary China. Anticompetitive abuses of power by local party-states, driven by corruption, have shaken the very foundations of the country’s administrative unity and market efficiency. The entrenched skepticism of the authoritarian party-state toward legal institutions notwithstanding, the Supreme People’s Court in Beijing has over the past decade steadily aggrandized its own and local courts’ authority to constrain regional protectionist, collusive fiefdoms in ways unforeseen by the drafters of the landmark Anti-Monopoly Law; returning incremental but genuine benefits to the central party-state, whose tacit acquiescence in judicial empowerment has over time transformed into express approval. However, given that administrative monopoly is instinct in a Leninist polity, the central party-state and the Court should have few incentives to eradicate local protectionism once and for all. All things being equal, full-fledged, independent judicial review of administrative monopoly will not emerge in China.

Monday, October 23, 2017

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 7, No. 8: Oct 17, 2017

Inna Amesheva, The University of Hong Kong, Faculty of Law, Students

Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law
Wolfgang Schulz, Hans-Bredow-Institute for Media Research, Alexander von Humboldt Institute for Internet and Society

Roderick M. Hills, Jr., New York University School of Law
Shitong Qiao, The University of Hong Kong - Faculty of Law

Po Jen Yap, The University of Hong Kong - Faculty of Law

Puja Kapai Discusses Sexual Harassment in Hong Kong on Backchat (RTHK)

"Sexual Harassment in Asia"
Presenters: Hugh Chiverton and Danny Gittings
Backchat, RTHK Radio 3
20 October 2017
Description: On Friday's Backchat, sexual harassment. After the revelations about Hollywood Mogul Harvey Weinstein, many actors, sports stars and others, as well as hundreds of thousands of others through twitter are stating that they have suffered sexual harassment and assault. If people are aware of the scale of the problem will it change attitudes? Why did people like Harvey Weinstein get away with it, when so many were aware of the problem? How can women without power fight back? Do women in Chinese societies suffer less harassment than in the West?  Panelists: Puja Kapai, Raees Baig, Susanne Choi, Sylvia Martin and Gina Marchetti. Click here to listen to the programme.

Amanda Whitfort Interviewed on the Need for an Animal Cruelty Police Force in Hong Kong (SCMP)

Yupina Ng and Louise Moon
South China Morning Post
7 October 2017
On the night of September 7, 2013, more than a thousand Hongkongers, some in tears, gathered outside the government’s headquarters at Tamar calling for stricter regulations to stop animal cruelty and a dedicated police unit to enforce those rules.
     The rally was prompted by a shocking case in which a four-month-old stray cat was found in Tsuen Wan with one of its legs cut. Police later arrested a couple on suspicion of animal cruelty, but did not press charges due to “insufficient evidence”.
     In the past four years, Hong Kong has done little to make animals better off, according to activists and law experts. No animal police squad has been set up, but more cruelty cases have been exposed, mainly by social media users.
   Experts said the recent case of a man throwing and kicking a dog in a Tuen Mun supermarket showed that current loose regulations were not serving as sufficient warnings for would-be offenders.
     “The main problem is that we still don’t have a duty of care,” said Amanda Whitfort, an associate professor at the University of Hong Kong’s faculty of law...  Click here to read the full article.

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