Tuesday, September 30, 2014

Albert Chen on the Law and Politics of Constitutional Reform

Professor Albert Chen, Chan Professor of Constitutional Law
September 2014

Abstract: Since 1997, the former British colony of Hong Kong has practiced autonomy as a “Special Administrative Region” (SAR) of the People’s Republic of China (PRC) under a constitutional arrangement known as “One Country, Two Systems” (OCTS). OCTS was first stipulated in the Sino-British Joint Declaration, a treaty signed in 1984 whereby Britain agreed to return Hong Kong to China in 1997. The Hong Kong Basic Law enacted by the Chinese National People’s Congress (NPC) in 1990, often known as Hong Kong’s “mini-constitution”, constitutionalizes OCTS, grants to the Hong Kong SAR a “high degree of autonomy”, and provides for the progressive democratization of Hong Kong. 

The political system that has existed in post-1997 has been described as a “semi-democracy”. The Basic Law itself stipulates that the ultimate destination of the evolution of Hong Kong’s political system is the election of the Chief Executive of the Hong Kong SAR by universal suffrage. However, this is “a democracy that might never come.” “An authoritarian regime which has pre-committed itself to democracy is an inherently unstable regime, because it will be taken to task to deliver.” Since 2003, a democracy movement has developed in Hong Kong that struggles for the speedy introduction of such universal suffrage. In 2007, the Chinese government announced that such universal suffrage may be introduced in 2017. Since early 2013, a public debate has unfolded in Hong Kong on what should be the electoral system for this purpose. Pro-democracy and activists were concerned that the electoral system, particularly the nomination process for candidates, would be such that only persons approved or considered acceptable by the Chinese government could stand as candidates, and that the election would not be conducted in accordance with international standards of democracy and universal suffrage. They call this “fake universal suffrage”, and they argue that China must grant Hong Kong “genuine universal suffrage”. 

The debate on universal suffrage in Hong Kong entered a new phase after 31 August 2014, when the NPC Standing Committee made a Decision on electoral reforms in Hong Kong. The model for universal suffrage stipulated in the Decision was immediately condemned by the pan-democrats as failing to meet international standards on what constitutes genuine universal suffrage, and as imposing unreasonable restrictions on the right to stand as candidates in the election. They vowed to vote against the proposed model when it comes before the Legislative Council in 2015. Under the Basic Law, any constitutional reform such as the election of the Chief Executive by universal suffrage can only be introduced by a two-thirds majority in the Hong Kong legislature, in which the “pan-democrats” currently occupy more than one-third of the seats. 

The struggle for the realization of universal suffrage in the election of the Chief Executive in Hong Kong in 2017 provides a good case study of constitutional politics in a sub-national political community exercising autonomy and seeking to introduce constitutional reform and democratization. It is also particularly interesting because Hong Kong is an SAR of China, the major Communist Party-ruled polity in the contemporary world, while the aspirations of Hong Kong’s democracy movement are towards Western-style liberal constitutional democracy. This paper seeks to tell this story of Hong Kong’s quest for democratization, focusing particularly on the law and politics of Hong Kong’s constitutional reform. It suggests that the struggle for universal suffrage in the election of the Chief Executive of the HKSAR in 2017 and the obstacles it has faced reveal the underlying tensions behind, and the contradictions inherent in, the concept and practice of “One Country, Two Systems”, particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of pan-democrats and their supporters in Hong Kong. 

This paper consists of the following parts. Part I examines the constitutional and legal provisions governing Hong Kong’s political system and its development. Part II reviews briefly the movements towards democratization that have taken place since the establishment of the Hong Kong Special Administrative Region in 1997. Part III consider developments since early 2013, when a social movement known as the “Occupy Central” campaign developed to struggle for the realization of genuine universal suffrage in the election of the Chief Executive of Hong Kong. The paper will focus particularly on the positions of the democracy activists in Hong Kong, as well as the stance of the Central Government in Beijing. Finally, Part IV will conclude by reflecting on the project of Hong Kong’s democratization under “One Country, Two Systems” in the light of the NPCSC Decision of 31 August 2014.  Click SSRN to download the full paper.

Should the U.S. Cooperate with China on Terrorism?

Professor Fu Hualing, Associate Dean (China Affairs), Faculty of Law, The University of Hong Kong joins the conversation on whether the U.S. should cooperate with China on terrorism.  See ChinaFile, a project of the Center on US-China Relations at Asia Society.  Professor Fu writes,
Both the U.S. and China have faced and continue to face imminent terrorist threats and each country has its own strength and unique vulnerabilities in facing the surge in international and domestic terrorism. There is solid common ground and ample opportunity for cooperation and support. While the U.S. may need China’s economic and military support in its international antiterrorism operation in the Middle East, China is eager to learn from U.S. antiterrorism measures and experiences to maintain China’s increasingly fragile urban security. Having suffered recently from the bombing in Tiananmen Square in Beijing, the mass murder in the train station of Kunming, Yunnan, and other random acts of mass violence in different cities, the Chinese security forces are exploring more effective preventative measures against terror. The U.S. has a lot to offer in antiterrorism monitoring and policing public space...  Click here to read the rest of Professor Fu's comments and the contributions of other prominent China experts.

Monday, September 29, 2014

Was it Lawful for the Police to Use Tear Gas on Protesters in Hong Kong?

What legal authority did the Hong Kong Police Force have to use multiple rounds of tear gas/smoke on protesters who were occupying Admiralty on 28 September 2014?  There are no legal provisions that authorise the specific use of tear gas by law enforcement agents.  The police must rely upon general powers in the Public Order Ordinance (Cap. 245) (POO) or the Criminal Procedure Ordinance (Cap. 221) (CPO).  Section 17(2) of the POO provides that any police office of or above the rank of inspector may disperse any public gathering if he reasonably believes that the gathering is likely to cause or lead to a breach of the peace.  To carry out this power, a police officer (of or above inspector rank) may give or issue such orders as he may consider necessary or expedient, and police officers may then "use such force as may be reasonably necessary" to disperse the public gathering.  Section 45 of the POO reiterates that any police officer "may use such force as may be necessary" to "prevent the commission or continuance of any offence under this Ordinance", to arrest, and "to overcome any resistance to the exercise of any of the powers conferred by this Ordinance".  As a restriction on the use of force, it is provided that "the degree of force which may be so used shall not be greater than is reasonably necessary for" the purpose of dispersing the public gathering (s. 46(1)).  Finally s. 101A(1) of the CPO confers the general power to "use such force as is reasonable in the circumstances in the prevention of crime", but this provision does not appear to add more to the powers under the POO.

However, to confer immunity on the police, s. 46(3) of the POO provides, "Any person who uses such force as may be necessary for any purpose, in accordance with the provisions of this Ordinance, shall not be liable in any criminal or civil proceedings for having, by the use of such force, caused injury or death to any person or damage to or loss of any property".  I highlight the qualifying words "as may be necessary...in accordance with the provisions of this Ordinance".  Thus the immunity will not apply where the reasonable necessity test cannot be met.  In this regard, it is important to note potential criminal liability under s. 22(1) of the Firearms and Ammunition Ordinance (Cap. 238).  Under this provision it is an offence to discharge any arms or ammunition in a manner likely to injure, or endanger the safety of, any person or property or with reckless disregard for the safety of others.  The definition of "arms" includes "any weapon for the discharge of any noxious liquid, gas, powder or other similar thing" (s. 2(1)).  Lawful authority and reasonable excuse are available defences, but these issues will largely turn on whether the police had used necessary and reasonable force.  Another issue for clarification is whether any of the tear gas/smoke used contained chemicals listed in the schedules of the Chemical Weapons (Convention) Ordinance (Cap. 578), which makes it an offence to "use a chemical weapon" (s. 5(a)).

Thus in deciding whether the police had legal authority to use tear case, the central issue is going to be whether the use of the tear gas was a degree of force "greater than" was reasonably necessary in the circumstances at the time.  In assessing this issue, it is important first to consider what guidelines and policies the police have adopted governing their use of tear gas in the public protest context.  The guidelines are important for two reasons.  First, they can be judged on their face to see if they contain sufficient strictures to comply with a reasonable necessity standard.  Second, if the guidelines are satisfactory, the actions of the officers on the ground can be assessed for compliance with the guidelines.  Beyond these guidelines, a court will likely apply proportionality reasoning as developed in Hong Kong's established human rights jurisprudence.  Whether there were less intrusive means to achieve the same objective would be relevant here (HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614, [84]).  

It is said that the police have adopted internal guidelines on the use of tear gas but these guidelines do not appear to be accessible on the Police Force website.  When legislator the Hon. Margaret Ng in February 1996 asked the Secretary for Security about past tear gas use, the relevant internal guideline was summarised as follows: "(a) only the minimum level of force should be applied; (b) the use of force is to restore order quickly; (c) whenever possible, warning will be given; (d) force will not be used as a punitive measure; (e) force will cease immediately when the objective has been achieved ; (f) the degree of force permissible is determined by the senior officer present; and (g) the decision to use CS gas within buildings, if required, rests with the senior officer present."  More recently, when the Security Bureau was asked by legislators about the possible use of tear gas against Occupy Central protesters, the Under-Secretary for Security's reply was summarised as follows:

"Public order events held with or without prior notice given to the Police would be handled in accordance with established mechanisms and having regard to the specific circumstances of the case concerned.  When there was a breach of the law, the Police would, first of all, advise the persons concerned to comply with the law.   Warnings would be given where necessary.  Where the situation did not improve and there was a need for the Police to take resolute actions, clear instructions and warnings would be given and adequate time would be allowed for the persons concerned to comply with the instructions.  Regarding the use of force, it would not be used unless it was really necessary and the force used would be of minimum level to achieve its purpose."

From this one can derive the following list of factors relevant to assessing whether it was reasonably necessary for the police to use tear gas: (a) was only the minimum level of force used; (b) were sufficiently clear warnings given on each occasion; (c) was adequate time allowed on each occasion for the persons concerned to comply with the warning; (d) what was achieved by the means; (e) were less intrusive means reasonably available to achieve the same ends; (e) did a senior officer, who was present at the time, authorise each use?

While all the facts will need to be considered carefully before coming to any firm view, the scenes from the televised coverage showed (i) no clear acts of violence or rioting that necessitated the use of the tear gas - suggesting an excessive response, (ii) repeated uses of the tear gas appeared to surprise protesters - suggesting that either an inadequate warning was given or insufficient time was allowed for protesters to comply, (iii) throwing of tear gas canisters directly at protesters or into crowds - suggesting that not the minimum level of force was used, and (iv) quick regathering of protesters (after momentary dispersal) - suggesting that the tear gas achieved very little and certainly nothing that less intrusive means could not have achieved.  Thus it seems the Hong Kong Police Force have more than a clear case to answer to justify their use of force on the protesters.  Written by Simon N.M. Young.


Sunday, September 28, 2014

Professor Arner Speaks at Massey Prize International Symposium

The Massey Prize was established in 2009 at The University of Texas School of Law to recognise scholarship that has made a significant contribution to the understanding of law, innovation and capital markets.  The 2014 Winner is Professor Henry T.C. Hu on financial innovation and in recognition of his achievement an international symposium was held on 26 September 2014 at the University of Texas School of Law.  Professor Douglas Arner, Faculty of Law, University of Hong Kong, joined a group of renowned corporate, banking and finance scholars and practitioners from around the world who spoke at the event.

Saturday, September 27, 2014

Article: Attribution in Company Law

"Attribution in Company Law"
The Modern Law Review
Vol. 77, Iss. 5, pp. 794-807
Sept 2014
Ernest Lim, Associate Professor, Faculty of Law, HKU
Abstract: In Bilta (UK) Ltd (in liquidation) v Nazir (No 2), the Court of Appeal held that the ex turpi causa defence was inapplicable by refusing to attribute the fraud of the directors and the sole shareholder to the company in connection with the company's claim against them and third party co-conspirators. It is significant that the court has not only clarified the law in relation to attribution, but it did so by rejecting the majority's reasoning and endorsing the dissenting judgment in the House of Lords decision in Stone & Rolls (in liquidation) v Moore Stephens (a firm). This article evaluates the decision in Bilta by critically examining the fundamental principles and policies that apply to the three distinct circumstances under which corporate attribution should or should not take place.  SSRN

Friday, September 26, 2014

Michael Kirby Events in October

Our Honorary Professor, Michael Kirby AC, will be speaking at two events co-organized by the Faculty of Law, The University of Hong Kong in October 2014.  On 2 October 2014, Mr Kirby will be speaking at a High-Level Roundtable on Gender Identity, Rights and the Law.  Co-organized by the UNDP, Centre for Comparative and Public Law and the Open Society Foundation, the event will look at some of the problems facing transsexual people living in Hong Kong and in the Asian region.  On 17 October 2014, Mr Kirby will be delivering a public lecture at HKU on “The Report of the UN Inquiryon Human Rights in North Korea: International Law Meets a Moment ofTruth”.  Michael Kirby was the chairperson of the Commission of Inquiry that wrote the report.  The next issue (expected in early 2015) of the Faculty’s Asia-Pacific Journal on Human Rights and the Law will feature a special section on the North Korea report.

Tuesday, September 23, 2014

IBA Report on Climate Disruption, Justice and Human Rights

New IBA Report
22 Sept 2014.  The International Bar Association published its ground-breaking 240-page report, Achieving Justice and Human Rights in an Era of Climate Disruption.  The Report finds that, while climate change affects everyone, it disproportionately strikes those who have contributed to it the least and lack the resources to respond.  The Report assesses the severe challenges currently facing national and international legal regimes which are poorly suited to provide legal remedies to those most affected, and outlines concrete recommendations for reform to create climate change justice structures that actively help protect and preserve environmental and human rights.  Associate Professor Jolene Lin, Faculty of Law, University of Hong Kong, was a member of the Task Force chaired by David Estrin and Baroness Helena Kennedy QC.  Jolene has also recently written an article, "Pangolins in Peril: What Conservation has to do with Global Security", published in the Georgetown Journal of International Affairs.

Event: Reflections on the Scottish Referendum

Seminar, Thursday, 25 September 2014, 17:00-18:30pm
Academic Conference Room 11/F, Cheng Yu Tung Tower
The University of Hong Kong


“Should Scotland be an independent country?” - Scholars discuss the recent Scottish referendum, focusing on the ramifications under international law and the implications for domestic constitutional reforms in Scotland and Hong Kong.

Fu Hualing
Professor of Law and Associate Dean (China Affairs), University of Hong Kong
The Scottish Vote and Implications for Hong Kong.

Tony Carty
Sir Y K Pao Chair of Public Law, University of Hong Kong 
The UK Government agreed to legalize the referendum, not allowed under the Scotland Act.  What does the referendum signify as a precedent in international law?

Scott Veitch
Paul KC Chung Professor in Jurisprudence, University of Hong Kong
A democratic vote for more democracy? Why would you be against that? Some lessons from the Scottish referendum experience.


New Issue of Faculty SSRN Legal Studies Research Paper Series

Vol. 4, No. 6: Sept 22, 2014

Table of Contents

Developing and Implementing AML/CFT Measures Using a Risk-Based Approach for New Payments Products and Services
Louise Malady, University of New South Wales (UNSW) - Faculty of Law
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Douglas W. Arner, University of Hong Kong - Faculty of Law

Property Rights Arrangement in Emerging Natural Resources: A Case Study of China's Nationalization of Wind and Sunlight
Jianlin Chen, University of Hong Kong - Faculty of Law, University of Chicago - Law School
Jiongzhe Cui, City University of Hong Kong School of Law

'China's Long March Toward Rule of Law' or 'China's Turn Against Law'?
Albert H. Y. Chen, University of Hong Kong - Faculty of Law, University of Hong Kong - Faculty of Law

The Perpetual Dance: Interpreting 'One Country, Two Systems' Through the Lens of Tongbian Dialectics
Jason G. Buhi, The University of Hong Kong Faculty of Law

Friday, September 19, 2014

Conference on Universal Suffrage in Hong Kong

Four members of the Faculty of Law will be speaking at the Conference on "Universal Suffrage for the Election of the Chief Executive: 2017 and Beyond" to be held on Saturday, 20 September 2014, at the School of Law, City University of Hong Kong.
Professor Michael Davis will be presenting his paper on "The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong".  Chan Professor in Constitutional Law, Professor Albert Chen, will speak on "The Law and Politics of Constitutional Reform and Democratization in Hong Kong".  Professor Simon NM Young will speak on "Realising Universal Suffrage in Hong Kong after the Standing Committee's Decision".  Mr. Danny Gittings (PhD candidate) will present on "Separation of Powers and Universal Suffrage".  For the full programme, click here.

Thursday, September 18, 2014

Fu Hualing on Xi Jinping's Anti-Corruption Campaign

Wielding the Sword: President Xi's New Anti-Corruption Campaign
Professor Fu Hualing
September 2014
Abstract: Corruption closely correlates with legitimacy. While a perceived pervasive, endemic corruption undermines the legitimacy of a regime, a successful anti-corruption campaign can allow a regime to recover from a crisis of legitimacy. This is the rationale behind the periodical campaigns against corruption that have been conducted by the Chinese Communist Party. Political leaders in China have found it expedient to use anti-corruption campaigns to remove their political foes, to rein in the bureaucracy and to restore public confidence in their ability to rule. Through anti-corruption campaigns, emerging political leaders consolidate their political power, secure loyalty from political factions and regional political forces, and enhance their legitimacy in the eyes of the general public. This paper provides broadly outlines the political nature of the Party’s anti-corruption campaign and the way in which corruption and anti-corruption are used as tools for the concentration of political power.  Download full paper from SSRN.

Wednesday, September 17, 2014

Collaboration with Cambridge University on Medical Ethics, Law and Policy

HKU and the University of Cambridge have signed a partnership agreement to collaborate on emerging issues on medical ethics, law and policy. Professor John Spencer of Cambridge U and Mr Terry Kaan of HKU Centre for Medical Ethics and Law officiated at the ceremony. The partnership is funded by the Hatton Trust and the WYNG Foundation. A lectureship and a junior research fellowship will be created to sponsor two scholars to visit HKU Centre for Medical Ethics and Law to spend up to four weeks at the University each year. Following the signing ceremony, Professor John Spencer gave a public lecture on “Criminalising sickness? Liability for the transmission of disease”. Professor Spencer explored the moral, legal and logistical dimensions of imposing civil or criminal liability for transmitting illness to another person. Professor Spencer’s talk focused on a UK rule that an HIV-positive person may be found to have maliciously inflicted grievous bodily harm for knowingly having unprotected sexual intercourse with an unaware partner. Researchers and advocacy groups have pointed out that the additional stigma and burden are potentially imposed upon the sick by such legal consequences. The wider relevance of the topic and the future of legislation around the transmission of illness are considerable interest in Hong Kong, where emerging infectious diseases are of constant concern and high in public awareness. For more, see HKU Press Release.  Professor Spencer's lecture can be viewed here.


Tuesday, September 16, 2014

The Scottish Referendum (Tony Carty)

"Scotland and England from a union of parliaments to two independent kingdoms"
Tony Carty
London Review of International LawSeptember 2014, vol. 2, issue 2, pp. 299-328
Abstract: The UK Government's advisers claim that Scotland, in the event of independence, would become a new state, while the ‘remainder' of the UK alone would enjoy Britain's international privileges. Arguing that Great Britain is best understood as a ‘composite state', this article explores the history of union to show that the two kingdoms who united in 1707 may now, equally freely, agree to separate as equals. Click to read the full article.

Police Complaints in Hong Kong

South China Morning Post

16 September 2014

Police watchdog facing challenges

The IPCC needs to demonstrate that it is an impartial contributor to the complaints process


For 37 years, the city has had a two-tier system to treat police complaints. One tier handles the complaint; the other has oversight of the handling of the complaint.

A police section known as the Complaints Against Police Office (Capo) receives the complaints. Its work is monitored by the Independent Police Complaints Council (IPCC) to ensure the reports are handled fairly and with a degree of transparency.

As one is naturally suspicious of the police policing themselves in this area, the IPCC plays a special role in promoting public confidence in the system.

The council celebrated five years as a statutory body and welcomed a new chairman on June 1. In the coming months, it will probably face its greatest challenges with the looming political reform protests and resulting police complaints. Its impartiality will be tested.

Even if in practice the IPCC acts true to its motto, the public may think differently. As Mr Justice Robert Tang Ching wisely noted at a symposium to mark the fifth anniversary, "reality and public perception may differ. What can be done to improve public perception is a continuing quest."

As part of that quest, new thinking should be directed to enhancing perception of the IPCC's independence. One idea is to make the appointments process more transparent and robust. The law confers wide discretion on the chief executive to appoint an unlimited number of council members, now totalling 24. To avoid criticism of political bias, perhaps an independent advisory committee could recommend names to the chief executive and, even better, draw those names from applications openly invited and made by interested persons. This is a merit-based and more professional approach and is similar to the process used for appointing magistrates and Court of First Instance judges.

Another suggestion is to highlight how often the IPCC disagrees with Capo. If there is a high endorsement rate with little or no disagreement, one would wonder whether the council simply rubber-stamped Capo decisions. The statute treats disagreement seriously: the chief executive is to be notified.

The truth is the two disagree sometimes and, through dialogue, the council can cause Capo to change its decision. These are instances where the second tier makes a difference.

The IPCC needs to be cautious with its on-site visits to public demonstration venues. It has no mandate to observe or diffuse actual conflicts between the police and protesters. To do so would mean that it has "entered the arena" despite its passive monitoring role.

Also, the council must not appear to associate too closely with police during these visits. Such impressions would not be dispelled even if it meets protest organisers after the event.

Finally, where complaints are lodged against IPCC members themselves, it does not boost confidence to have three other council members investigate and find the complaints unsubstantiated. Outside membership in the review would be better. The IPCC should strive to make the whole complaints process more transparent and accountable.

Simon Young Ngai-man is professor and associate dean in the University of Hong Kong's law faculty

Monday, September 15, 2014

New Books Published in 2014


Springer, 2014
Guanghua Yu, The Univesrity of Hong Kong

This book examines China’s economic development from the end of 1970s, integrating perspectives from law, economics and political science. Particular attention is given to the role of formal law and political changes in China’s development, presenting the argument that formal law has made a useful contribution to China’s economic development.

Exploring the Limits of Law
Cambridge University Press, July 2014
Editors: Hualing Fu, The University of Hong Kong, John Gillespie, Monash University, Victoria

Economic development and mass urbanization have unleashed unprecedented levels of land disputes in East Asia. In China and Vietnam especially, courts and other legal institutions struggle to find lasting solutions. It is against this background of legal failure that this book brings together leading scholars to understand how state agencies, land users and land developers imaginatively engage with each other to resolve disputes.

Practicing Law in Republican Beijing (1910s-1930s)
Routledge, May 2014
Michael H.K. Ng, The University of Hong Kong

The book is the first monographic work on the legal history of Republican Beijing, and provides an in-depth and comprehensive account of the practice of law in the city of Beijing during a period of social transformation. It explores the problems encountered by Republican Beijing’s legal practitioners, including lawyers, policemen, judges and criminologists, in applying transplanted laws and legal institutions when they were inapplicable to, incompatible with, or inadequate for resolving everyday legal issues.

Perspectives from Hong Kong and Beyond
Hong Kong University Press, Feb 2014
Editors: Michael Tilbury, The University of Hong Kong, Simon NM Young, The University of Hong Kong, Ludwig Ng, ONC Lawyers

Is law reform itself also in need of reform? This collection of essays by distinguished experts from around the world seeks answers to the question. The book explores the varied experience of law reform in Hong Kong and other common law jurisdictions and makes recommendations for strengthening the process of law reform both in Hong Kong and elsewhere.