Friday, October 31, 2014

Albert Chen Interview on the Occupy Movement (in Chinese)

Albert Chen was interviewed by Cable TV news.  He believes the first two weeks of the Occupy movement were in line with the principles of civil disobedience but has now evolved into more harm than good.  He compares the situation to the student demonstrations in Beijing in June 1989, which in his view would have resulted in more good had they ended earlier.  Click here to view the interview in Cantonese.

Cora Chan Video Interview on Political Reform

Cora Chan was interviewed by Professor Richard Albert of Boston College Law School for the I-CONnect blog (Blog of the International Journal of Constitutional Law and ConstitutionMaking.org).  In the 21 minutes interview, Cora discusses recent developments in Hong Kong, the impetus for the current protests, the constitutional relationship between Hong Kong and China, and the prospect for democratic reform in the region.  She also explains show she became interested in comparative public law.  Click here to view the interview.

Thursday, October 30, 2014

Events on the Scholarship of Teaching and Learning

Law Faculty members are involved in events concerning the scholarship of teaching and learning.  Professor Rick Glofcheski was the recipient of the inaugural University Grants Committee Teaching Award.  The award money will help to fund an international conference on Assessment for Learning in High Education to be held at HKU on 14-15 May 2015.  The conference aims to provide a platform that brings together higher education experts, scholars, researchers, educators and students to share visions on assessment and feedback in higher education.  The deadline for abstract submissions is 14 November 2014.
On Tuesday, 25 November 2014, James Fry will be speaking in the CETL's Teaching Development Grants Seminar Series on his 109-page report on the various plagiarism-related standards and penalties adopted by leading universities in the US, UK, Australia and Singapore.  At the same seminar, Wilson Chow and Michael Ng will present their paper on an empirical study of the use of simulated clients to teach and assess the interviewing skills and communicative competence of HKU law students.  The study involved 320 PCLL students who in 2013-14 participated in interviewing exercises with simulated clients. 

Davis on Beijing's Failure to Honour the Basic Law

E-International Relations
29 October 2014
...In blocking opposition candidates, Beijing dismisses the widely recognized international view that universal suffrage requires not only that everyone can vote but also that they be given a free choice of candidates, without discrimination for political opinion or otherwise. These requirements were outlined by the Human Rights Committee of the International Covenant on Civil and Political Rights (ICCPR) in its General Comment number 25 on ICCPR Article 25.[18] Beijing has claimed that there are no international standards for elections. 
    In taking such liberty with the term universal suffrage, the Standing Committee not only undermines Hong Kong’s democratic development but also clearly puts the rule of law in jeopardy. In simple terms, the rule of law requires that nobody is above the law and everyone is subject to the law applied in the ordinary manner. A central government that can take such liberty with terms such as universal suffrage that protect core human rights is clearly operating above the law. In this sense, the NPC Standing Committee Decision appears to exercise the broad authority claimed in the White Paper... Click here to read the full article.

Wednesday, October 29, 2014

Thomas Cheng Interview on the Competition Commission

"Hong Kong regulator needs more enforcement experience before making big changes to competition rules, commissioner says"
by Freny Patel
Policy and Regulatory Report (PaRR)
28 October 2014
Hong Kong's Competition Commission will need much more enforcement experience than it currently possesses to make major adaptations to the city's draft competition guidelines, released on 9 October, says Thomas Cheng, a member of the commission.
    Cheng's comments come in the wake of criticism by some antitrust lawyers that the guidelines mirror those prevailing in Europe and do not necessarily reflect local circumstances.
    A Hong Kong-based antitrust lawyer said that although the commission had taken a lot from Europe when drafting the guidelines, the guidelines needed to more faithfully reflect the characteristics of the Hong Kong market. The lawyer said Hong Kong was largely a distribution centre and a relatively small economy with many family-owned businesses and interlocking directorates.
   Cheng told PaRR that local adaptation was always a difficult issue, considering that competition law principles were meant to apply generally.  Click here to read the full article available on the website of Howse Williams Bowers.

Tuesday, October 28, 2014

HKU hosts China Law Doctoral Forum

The first China Law Doctoral Forum organized by the Faculty of Law, HKU and the Asian Law Centre at the Melbourne Law School was held at HKU on 23-24 October 2014. Fifteen PhD students from HKU, Melbourne Law School, Peking University, China University of Political Science and Law, Dalian Maritime University, Chinese Academy of Social Sciences and Shanghai Jiao Tong University presented papers on a wide range of Chinese law related topics including grassroots courts in Guangdong Province, supervision of judicial power, enforcing corporate social responsibility, emissions trading pilot programmes, social movements and social transition, administrative litigation law, administrative accountability system, right to life, charity law reform, seamen's lien for wages, emergency powers law, witnesses' involvement in trial statements, and enforceability of choice of law clauses.
Critical feedback was provided by the graduate students and academic members who attended. The main organizers of the event from HKU were Professors Michael Tilbury and Fu Hualing and Mr Chen Jianlin; and, from Melbourne, Professors Sarah Biddulph and Pip Nicholson.

Event: Understanding Hong Kong's Umbrella Movement (31 Oct 14)

This Forum brings together a group of teachers and researchers from HKU to discuss Hong Kong's Umbrella Movement.  Is this a new form of politics?  What inter-generational dynamics are at work in this largely student-led movement?  How has the experience of cultural identity shaped the demands of the students?  Can Hong Kong politics ever return to 'business as usual'?  What role should academics and universities play in the unfolding events?
When: Friday, 31 October 2014, 3pm-5pm
Where: Large Moot Court, 2/F, Cheng Yu Tung Tower, Centennial Campus, HKU.  No Registration Required.  Seating capacity: 300.
Chair: Timothy O'Leary (Head of School of Humanities), Speakers: Joe Lau (Philosophy), Mirana Szeto (Comparative Literature), Stephen Chu (Hong Kong Studies), Joseph Chan (Politics), Marco Wan (Law).

Monday, October 27, 2014

New Issue: SSRN Legal Studies Research Paper Series

Table of Contents

1. Interpretation of Tax Law in China: Moving Towards the Rule of Law?
Dongmei Qiu, University of Hong Kong

2. Thin Capitalization Rules in China
Dongmei Qiu, University of Hong Kong

3. The Concept of 'Beneficial Ownership' in China's Tax Treaties – The Current State of Play
Dongmei Qiu, University of Hong Kong

4. The Cost of Antitrust Law to Malaysia's Financial Services Sector
Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford, Columbia Law School - Centre for the Advancement of Public Integrity
Mark Williams, Hong Kong Polytechnic University
Susila Munisamy, University of Malaya

5. Attribution in Company Law
Ernest Lim, University of Hong Kong - Faculty of Law

Albert Chen's Letter to His Students (in Chinese)

RTHK's Hong Kong Letter (香港家書)
25 October 2014
Dear students of mine, 
     In 1984, I began teaching at the University of Hong Kong Faculty of Law when the Sino-British Joint Declaration was signed. Since then, "one country, two systems" has always been my research interest. Today, I feel that the practice of "one country, two systems" is facing an unprecedented crisis. The road ahead for "one country, two systems" seems to become narrower and narrower, more and more difficult to walk. Now, I am already close to the age of retirement in the University of Hong Kong. But you are still young. So this "Hong Kong Letter" is written for you. I want to talk about whether the future of "one country, two systems" is bright. I hope to share with you frankly, and without reservations, my view of "one country, two systems". In particular, I wish to point out that unless the majority of Hong Kong people, including young people, fully understand the political and legal realities of "one country, two systems" and face the political reality with a rational, pragmatic attitude, the internal contradictions within "one country, two systems" will only continue to grow. The intensifying conflicts within Hong Kong society will bring Hong Kong into "self-destruction". Hong Kong might decline and fall from its prosperity, which was the fate that befell many once thriving cities. On the other hand, if the rational and pragmatic spirit eventually restrains the idealism and radicalism represented by "Occupy Central" and the so-called "non-cooperation movement", Hong Kong's future is still bright. Young people can still be confident and hopeful about the future. Today, Hong Kong is at such a crossroads, such a critical moment. I hope you may face it positively, make a correct assessment of the situation and make a wise choice as to what are the principles and values you should have faith in... Click here to read the full letter in Chinese or listen to the sound recording of the letter in Cantonese.

Sunday, October 26, 2014

New Article: Crowd-Sourced Governance in a Post-Disaster Context

International and Comparative Law Quarterly
FirstView Article, September 2014, 16 pp.
Abstract: In the wake of recent catastrophic natural disasters, the United Nations (UN) has developed an increasingly sophisticated network of collaborative partnerships to assist with humanitarian relief operations. The growing use of open-source technology such as crowd mapping and resource tracking—being universally accessible, collaboratively designed, subject to ongoing improvement, and responsive to on-the-ground needs—reflects in many respects the emerging UN governance mechanisms developed to support the creation of such technology. The 2008 meeting of the World Economic Forum called for increased documentation and ‘dissemination of the work of humanitarian relief’ and ‘mapping of assets, non-food items’ and resources to prevent duplication.
However, as yet, little attention has been given to the role of open-source governance mechanisms in the context of disaster response. This article aims to fill this gap by examining the emerging mechanisms by which private sector collaboration is coordinated by international institutions such as the UN. It finds that the emergence of post-disaster open-source humanitarian relief reflects the observations of new governance legal scholars that coordination is increasingly the result of expanded participation and partnership on the part of governments and non-State actors, a learning-focused orientation, with the State increasingly acting as a convener, catalyst and coordinator.  Click here to read full article.

Yash Ghai on Separation of Powers in Kenya

"Separation of Powers, Checks and Balances, and The Rule of Law"
The Star
25 October 2014
In recent months there have been major conflicts between state institutions, quarrels between Governors and Senators, the Senate and the National Assembly, the Executive and the National Assembly, Governors and members of County Assemblies. There have been spats between the judiciary and the other state institutions, while the judiciary has declared unconstitutional the acts both of the legislature and the executive. There is a real danger that if these antagonisms continue, there will be a total collapse of government institutions. Yet there is no excuse for squabbles. The constitution is clear as to their respective powers and responsibilities, and the relationship between them. These crises have arisen only because the protagonists have ignored or twisted constitutional provisions to pursue their political objectives and personal gains.  Click here to read the full article.

Friday, October 24, 2014

Advice on Plan B for the Protesters in Hong Kong

Plan A is to have the Chief Executive submit a Supplementary Report to the Standing Committee of the National People's Congress (NPCSC) in order to put 'Hong Kong political reform' back on the agenda of the next NPCSC meeting, at which the NPCSC will hopefully decide that, since the actual situation in Hong Kong has changed, its 31 August 2014 decision is now either replaced or supplemented by a further decision that permits public nomination of Chief Executive candidates.  If Plan A has no hope of materialising, what is Plan B?  Is there is a Plan B?  Protesters may wish to consider the following eight points in forming or shaping a Plan B.

1.  Don't give up the people's power to reject the slate of nominated candidates.  This is the ultimate safeguard by Hong Kong against a system that confers de facto nomination power on the Central People's Government.  Neither the Basic Law nor the August 31st decision precludes this power.  Without it, universal suffrage under the Basic Law is not worth having because the central government will be able to control both the nomination of candidates and the choice of Chief Executive.  Such a system is nothing more than a universal suffrage charade which Hong Kong voters will boycott thereby leaving any elected candidate with a low margin of public support.  If however the pubic has the power to reject the slate of candidates thereby causing the process to start again, Beijing will need to yield to this power in its nomination deliberations.  Patriotism will not be a decisive criterion; integrity, leadership ability and public support will become paramount considerations.  There are different ways in which this power can be implemented, including the right to cast blank votes, vote count thresholds, and minimum voter turnout rates.

2.  Insist on an open and low threshold entry nomination process.   The August 31st decision did not address the process by which qualified persons can enter the nomination race.  Protesters should insist upon a low threshold process to allow potential candidates from across the political spectrum to participate at this stage.  Such potential candidates should be given a period of time to air their election platforms and debate each other in public.  This will provide an opportunity for the public, Nominating Committee members and the central government to form views on which two to three potential candidates should be supported.  As to implementation, one idea is to use the existing nomination process, i.e. paper nominations from at least one-eighth of the membership of the committee.  We have seen in 2007 and 2012, that this low threshold can make for some diversity in potential candidates, but only a small number.  The current rules allow a potential candidate to obtain more than the one-eighth minimum thereby making it more difficult for others to be nominated.  This should not be allowed in the new system.   Another idea is to have public endorsements in addition to or as an alternative to committee member endorsements.  For example, obtaining endorsements from say 10,000 registered voters could serve as a threshold for admission into the nomination race.  We might even consider making public endorsement a requirement for all potential candidates.

3.  Insist on a better allocation of seats to the Nominating Committee subsectors.  The August 31st decision requires the Nominating Committee to have an equal number of seats in the four sectors (specified in Annex I of the Basic Law), but did not address the allocation of seats to subsectors within each sector.  This has always been a matter for local legislation.  There are numerous anomalies with the current allocation, the most often mentioned one being the 60 seats given to the Agriculture and Fisheries subsector, which in 2013 was concerned with only 1 percent of the land in the New Territories and approximately 8800 local fishermen.  With a strategic redesign of and reallocation of seats to the subsectors, the influence of the central government over nominations can be diluted.  

4.  Widen the electorate base of the Nominating Committee as much as possible.  By widening the electorate base with a stronger public element, there is a further opportunity to diversify the composition of the Nominating Committee and thereby dilute the influence of the central government.  Many ideas can be discussed and tried, but the issues are complex and technical.  Much reference has been made to abolishing corporate voting, but the immediate question that follows is 'replace them with what?'  If Governor Chris Patten's approach was to be adopted, when he abolished corporate voting for the 1995 Legislative Council (LegCo) election, one corporate vote will be replaced with six votes by members of the corporate's board of directors.  Such a change makes little difference since the composition will still reflect a pro-business and pro-corporate elite bias.  Only by widening each subsector to all classes of workers engaged in the subsector will the dilution effect be realised.  As for the 'professions' sector, it is not clear why only 10 broad professions are recognised.  A serious inquiry can be conducted into which 'professions' have been left out.  More subsectors could be recognised under the third sector which is labelled broadly in Annex I: "Labour, social services, religious and other sector".  There is no good reason why this sector should be limited to an electorate base of only 17,572 individuals and bodies.  This would be a good sector for having members drawn from and elected by the general electorate.  In the fourth sectors, the number of seats allocated to the Heung Yee Kuk and the Chinese People's Political Consultative Conference were reduced in October 2012 (to make way for 10 more LegCo members) and could be reduced further to make way for more directly elected District Council members. 

5.  Obtain assurances on future change to the 31 August 2014 conditions.  While the Chief Secretary has said that the 2017 system is not final, it is better to get it directly from the NPCSC, specifically that the conditions imposed in the August 31st decision can all be changed for future elections beyond 2017.  Insist upon an official statement from the NPCSC or its Chairman to this effect.  This will reassure people that the restrictions on nomination contained in the August 31st decision are not permanent, whether or not LegCo members ultimately accept a reform proposal.  The 2017 election will be treated as a pilot universal suffrage election and the 2017 Chief Executive will be duty-bound to submit a report to the NPCSC on the need to reform the system further.

6.  Obtain assurances on functional constituencies.  People are concerned that the principles of "balanced participation" and "broadly representative" will mean that the functional constituencies in their current form will be regarded as being consistent with the method of LegCo election by universal suffrage, promised for 2020.  Protesters should insist upon having an official statement from the NPCSC or its Chairman to the effect that the existing arrangement of functional constituencies is not consistent with universal suffrage of LegCo.  Furthermore the statement should also say that the split voting rule in Annex II(II) can also be changed for 2020.  This will help restore some degree of public confidence in future of electoral reform in Hong Kong.

7.  Obtain assurances on Article 23.  People are worried that the 2017 Chief Executive elected by universal suffrage will be ordered by the central government to implement national security laws as required by Article 23.  However Article 23 states that it is the Hong Kong Special Administrative Region that will enact such laws "on its own", implying that the timing of the implementation is wholly to be decided by Hong Kong.  To help rebuild trust with the people, the NPCSC or its Chairman should make a statement affirming that the timing of the implementation of Article 23 is to decided solely by Hong Kong.  In this way the 2017 Chief Executive can decide to tackle the Article 23 issue only when there is support for doing so amongst legislators and members of the public.

8.  Insist on a better and more transparent process in the next stage of political reform consultation.  It is of utmost importance that the protesters insist upon a better process in the next stage of political reform consultation.  It has become clear that the process employed thus far has not worked.  Leaving the process of consultation entirely in the hands of government (namely a three-person task force) has bred mistrust in the manner of consultation (who was consulted), the analysis of consultation results (how were findings made), and reporting of consultation results to both the public and central government (were findings fairly reported).  Going forwards, the government should establish an independent consultative committee, like the one used when the Basic Law was being drafted, to collect views, study issues and report on the views collected and issues studied.  The more the government can distance itself from the process of public consultation, the more credible the consultation results will be and the more likely people will accept the consultation report.  Written by Simon N.M. Young.

Wednesday, October 22, 2014

New Article: Planting Houses in Shenzhen: A Real Estate Market Without Legal Titles

"Planting Houses in Shenzhen: A Real Estate Market Without Legal Titles"
Canadian Journal of Law & Society
Vol. 29, No. 2 (2014), p 253-
Shitong Qiao
Abstract: Can a real estate market operate without legal titles? The answer has conventionally been no. But in Shenzhen, the iconic city of China’s market economy, an opposite phenomenon exists: half of the buildings within the city, which has 1,993 square kilometers of land and over 10 million people, have no legal titles and have been rented or sold to millions of people illegally. These illegal buildings are called small properties, because their property rights are “smaller” (weaker) than legal properties. Based on my one-year fieldwork, this paper is a first step toward explaining the small-property market. It reveals that legitimate organizations and professionals have developed a network to facilitate impersonal transactions of illegal small properties. Set against the backdrop and context of China’s transition, this paper presents a feasible plan for building a market economy in transitional countries, where property laws are often less than ideal.  Click SSRN to download full article.

Monday, October 20, 2014

Li Yahong interviewed by CNN on fake Chinese restaurants

Associate Professor Li Yahong was interviewed by CNN on what legal redress restaurants have in these trademark dispute cases.

(CNN) -- Hong Kong restaurateur Yenn Wong got quite a surprise one morning earlier this month.  The co-founder of popular Hong Kong restaurant Chachawan Isaan Thai and Bar, Wong woke up and logged onto her computer to find a friend had forwarded her multiple images of a second Chachawan restaurant in Shanghai.  In addition, Chachawan's Facebook page was filled with enthusiastic inquiries asking if the shop had opened a new branch in Shanghai.  Wong looked closely at the pictures online.  The Shanghai Chachawan bore the hallmarks of her successful Hong Kong eatery.  It had the same exterior look and feel as the Hong Kong shop.  Even the menu, focusing on northeastern Thai -- or Isaan -- cuisine, looked the same.  Opened earlier this month, the Shanghai restaurant had already earned scores of 5/5 stars from six of its eight reviewers on Dianping, China's crowd-sourced food forum.  Given that she had no plans to expand her operations to Shanghai, the copycat Chachawan stunned Wong.  Click here to read the full article.

Sunday, October 19, 2014

C.L. Lim: "The NPCSC cannot say that the Basic Law is a cucumber from Mars."

Hong Kong's Basic Law and Political Reform
17 October 2014
Lim Chin Leng
Some senior Hong Kong figures have spoken about unfulfilled treaty promises made between Britain and China. Yet the Sino-British Joint Declaration of 1984 says nothing about choosing Hong Kong's Chief Executive by the votes of five million people. The document which matters here is Hong Kong's Basic Law.
     Prior to the handover in 1997, the colonial government expended considerable effort in democratising Hong Kong's Legislative Council or "LegCo". This process, that commenced in earnest in 1984 in the form of a Green Paper, and subsequently in a White Paper, nonetheless had to await the outcome of discussions between 23 representatives of Hong Kong and 36 representatives from Beijing on the enactment of a Basic Law.
     No colonial-led reform in the run-up to the handover which did not converge with the Basic Law, in which Britain had no hand in the making, would have been practicable as the Basic Law would apply after the handover.  Click here to read the full article.

Faculty Speak at UofT International Law Conference

Three Faculty members and two PhD students presented papers at the University of Toronto's Perspectives on International Law Conference held on 16-17 October 2014.  Professor Tony Carty, Sir Y.K. Pao Chair in Public Law, presented a paper on "Historiography and History of International Law", Associate Professor Yahong Li presented on "The Effect of Compulsory Licensing on Public Health Inventions", Associate Professor James Fry presented on "The Roots of Historic Title: Non-Western Pre-Colonial Normative Systems and Legal Resolution of Territorial Disputes", Ms Xu Bijun and Professor Carty presented on "The Sino-Japanese War (1894-5) and the Intertemporal Rule of International Law with respect to the Legality of War", and Ms Zhang Xiaoshi presented on "The Sino-French War and the Clash of World Order Visions of International Law and the Tributary System".  Click here to see the full conference programme.

Saturday, October 18, 2014

Police and the Rule of Law

Although it is a trite thing to say that the rule of law is essential for Hong Kong’s freedom and prosperity, people from different walks of life in Hong Kong have repeated this claim over and over again in the past few months. Critics of the Occupy Central Movement (OCM) are quick to point out that civil disobedience not only violates certain laws but also damages Hong Kong’s rule of law tradition. Mr. Benny Tai who has passionately advocated and organised the movement also says that he treasures the rule of law. For him, Hong Kong’s rule of law tradition is at risk and eroding right in front of our eyes. His OCM argues that there is a strong need to give people a wake-up call so as to protect and strengthen the rule of law in Hong Kong in the longer term. 

What do people have in mind when they talk about the rule of law in Hong Kong?  For some, it is first and foremost judicial independence; for others, it is the courage of the legal profession to act out when arbitrary power appears on the horizon; and most people would agree that rule of law means the obedience and fidelity to legal rules on the part of the ordinary Hong Kong people.

One neglected aspect in Hong Kong’s rule of law discourse is the importance of accountable and effective law enforcement, especially by the police, in creating a sustainable rule of law tradition. 

Political scientists since Hobbes have identified the maintenance of peace and order as core functions of a legitimate state. In a society with a deficit of democracy, social stability and effective control of crime provide adequate legitimacy. In that regard, police effectiveness and accountability are indispensable in legitimizing a political order. Criminologists have also proved that police matter the most in maintaining peace and order and it is principally the diligence of police men and women in the front line who make us safe. It may not be much an exaggeration to say that Hong Kong is one of the safest cities on earth and Hong Kong has one of the best police forces in the world. 

Hong Kong has come a long way in building and maintaining a well-disciplined, highly regarded and effective force. It has taken the collective effort of generations of people to create this reality. The Hong Kong Police Force excels in two fundamental ways. The first is its political neutrality in the sense that the police enforce the law fairly, equally and, above all, effectively without political considerations entering into the process. This important, relative distance from politics has allowed the police to develop a high level of professionalism, effectiveness and accountability in Hong Kong. Second, an accountable and effective police in turn nurtures fine police and community relations and the degree of mutual trust between the police and citizens is high. 

The OCM has unfortunately placed tremendous pressure on the police and posed challenges to both political neutrality and community relations. Without doubt, it is extremely difficult, if possible at all, to insist on neutrality in all circumstance in policing given the embedded nature of police in politics. Given the sensitivity about the OCM amongst all parties involved and the political attention that the OCM has received, it is not possible to avoid political pressure, either from Beijing or from a worried Hong Kong Government, entirely. The use of force on the first evening of the OCM was plainly excessive and unnecessary. It is hard to believe, as the government is arguing, that it was merely an operational decision which led to this unprecedented use of force. The Hong Kong police force, given its experiences in public order policing and its level of professionalism, would have known how to have managed matters better. It is highly likely that the OCM has rattled either Beijing or the Hong Kong government into dictating some police operational matters. Police professionalism may have been sacrificed to political expediency.

There is also the second, and a bigger, disaster – the high level of tension between the police and a significant sector of the public. Effective police work relies on public support and the trust that the police and the public place have in each other as the key to any successful maintenance of public order. Unfortunately the OCM, which started with a demand for Beijing to withdraw its most recent decisions on the 2017 election of the CE, has slowly and painfully mutated into a direct confrontation between the police and the public. The frustration arising from this process has hijacked the original objectives and there is the possibility that the police will become the scapegoat in the blaming game.

As the OCM goes on, it is becoming crystal-clear that our political system, our police system in particular, is more fragile than what we have taken for granted. We have a decent police force that we are proud of, but we may lose it more quickly than we can imagine. As a law enforcement agency, the police are ill-fitted to meet competing political demands. The force is bound to be hard-pressed in maintaining order in an increasingly polarized society. Significant changes in the external environment could swiftly cause a chain reaction within the police force leading to a qualitative change in the internal dynamics. There may be an authoritarian DNA in any police force which may manifest itself in certain circumstances.  The OCM has generated massive international and domestic pressure, evil or benign, that our policing system may not be able to bear. Even if, as most everyone hopes, the OCM is wound back greatly and some discussions begin as soon as possible, we have learned a most important lesson about how rapidly the foundations of our high quality police force can be placed in jeopardy.

Hong Kong has long enjoyed judicial independence, an active legal profession and a free press, but Hong Kong did not always have the rule of law as we define the term. It is the changes in the policing in Hong Kong, especially since the 1970s, which have played a key part in this vital game change. A police force that is clean, effective and accountable, is what makes our rule of law possible. Police are important for us and indispensible for our law and order. Let’s think more carefully about the difficult position in which the OCM has placed our police force.  Written by Hualing Fu.

Friday, October 17, 2014

Was the assault on Ken Tsang by Hong Kong police officers "torture"?

Some have described the October 15th assault by Hong Kong police officers on protester and Civic Party member, Ken Tsang, as an offence of "torture", which under Hong Kong law carries a maximum sentence of life imprisonment.  The TVB video clip  (WSJ website) shows a man whose hands are bound behind his back lying on the ground while several police officers repeatedly kick and hit him for less than four minutes.  While the circumstances seen in this clip are highly suggestive of a criminal offence, it is unlikely to be torture.  It remains unclear what happened to Tsang after he was taken into police custody and detention.  These circumstances would need to be taken into consideration before coming to a final view on the matter.
     Article 1(1) of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as follows:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."  
In summary, the definition involves five elements: (i) the pain or suffering inflicted must be severe; (ii) the infliction of severe pain or suffering must be intentional; (iii) the infliction must have an official character to implicate the state; (iv) the infliction must be for a specified purpose; and (v) there is the lawful sanctions exception.
     Hong Kong enacted the offence of torture in s. 3 of the Crimes (Torture) Ordinance (Cap. 427) (CTO), which came into force on 21 January 1993.  There has yet to be a prosecution for this offence  and any such prosecution would require the specific consent of the Secretary for Justice (s. 4).  The CTO defines torture in a substantively different way than Art. 1(1) of CAT.  The offence is committed if a "public official or person acting in an official capacity...intentionally inflicts severe pain or suffering on another in the performance or purported performance of his or her official duties".  It is a defence to prove one had "lawful authority, justification or excuse" for the conduct.  In comparison to Art. 1(1), there is no specific purpose requirement, nor mention of liability by "consent or acquiescence" but here normal principles of party liability would apply to extend liability beyond the principal offender(s).  Section 3 also confers a wider defence than the "lawful sanctions" exception in Art. 1(1).  In its concluding observations (as recent as 2009), the UN Committee Against Torture recommended that Hong Kong abolish this defence because it is inconsistent with the position that the CAT "does not authorize any possible defense for acts of torture".  Given this incongruence with international law, a court is likely to interpret the defence of "lawful authority, justification or excuse" in a restrictive manner.  As the officers were public officials who were delivering an arrestee into custody at the time and acting without any apparent excuse or justification, the only real issue is whether the assault by the police was such as to constitute "severe pain or suffering" under s. 3(1) of the CTO.  
     In referring to what constitutes "cruel, inhuman or degrading treatment or punishment" (CIDTP) within Art. 3 of the Hong Kong Bill of Rights, the Court of Final Appeal held that "a very high threshold must be surmounted" (Ubamaka Edward Wilson, Secretary for Security (2012) 15 HKCFAR 743, [172]).  Ill-treatment that meets the "minimum level of severity" would be expected to involve "'actual bodily injury or intense physical or mental suffering' or mistreatment of an intensity 'capable of breaking an individual's moral and physical resistance'" ([182] citing from R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 at [53-55] (HL)).  In trying to distinguish "torture" from "inhuman or degrading treatment or punishment" in Art. 3 of the European Convention on Human Rights, the European Court of Human Rights has said that torture should involve ill-treatment of a greater degree of severity.  The "special stigma" of "torture" should only attach to "deliberate inhuman treatment causing very serious and cruel suffering" (Al Nashiri v Poland [2014] ECHR 833 at [508] (24 July 2014)).  
     In Ireland v UK [1978] ECHR 1, the European Court did not find prolonged sensory deprivation techniques used on detainees as constituting torture. However these techniques (involving wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink) constituted inhuman and degrading treatment.  It was not until 1996 (in Aksoy v Turkey [1996] ECHR 68), that the European Court found “torture” for the first time in a case involving “Palestinian hanging" (being strung up by the arms, tied together behind one’s back) and electrocution of the genitals ([14] & [23]).   
     More recent cases have shown that the line between 'torture' and 'inhuman or degrading treatment or punishment' is not easy to draw.  In Ochelkov v Russia [2013] ECHR 312 (11 Apr 2013), the applicant was arrested and taken to the police station. When he was released the evening of the following day, he went to the hospital and was diagnosed with a closed cranio-cerebral injury, concussion, and multiple injuries to the head, back, arms and chest ([85]).  He remained in hospital for 12 more days and had treatment in the surgery department ([85]).  The applicant claimed that while in police custody, he was tied to a chair whereupon officers hit him on the head with a chair leg, kicked him in various parts of the body and punched him in the face ([11]).  The ill-treatment lasted more than a hour.  In the end the applicant lost consciousness.  The Court found that the applicant was "beaten up by police officers and that as a result of those beatings he sustained injuries", that there were no circumstances which might have necessitated the use of violence on the applicant, that the applicant did not resist arrest, attempt to escape, refuse to comply with lawful orders or threaten the officers, that the use of force by the police was retaliatory in nature and aimed at forcing the applicant to submit, and that the treatment caused mental and physical suffering but no long-term damage to health ([95]).  The Court, however, concluded that the treatment amounted to "inhuman and degrading treatment" but did not find "torture" ([96]).  
     By contrast, torture was found in another not too dissimilar case.  In Belousov v Ukraine [2013] ECHR 1104 (7 Nov 2013), the applicant was arrested from his hostel on suspicion of sexual abuse of two young girls.  Seven hours later, when accompanied by police who were conducting a search of his room, he was seen "limping, stooping [with] bruises and swelling on his face" and "clothes were dirty and wrinkled" ([17]).  The Court accepted the applicant's version of events, that "the police officers handcuffed him, punched him in various parts of his body, strangled him, squeezed his genitals and painfully twisted his arms urging [him] to confess" ([62]).  The injuries that resulted were "soft tissue swelling, numerous bruises and scratches on various parts of his body, in particular, face and groin area" ([67]).  The Court also noted that the treatment "was administered behind closed doors by a number of police officers whose violence the applicant had no means of resisting", that the physical pain must have been "exacerbated by feelings of helplessness, acute stress and anxiety" and that "the treatment was intentional, lasted for several hours in a row and was aimed at extracting" a confession from him ([67]).  It concluded that the treatment amounted to torture ([68]).
     As the severity of the assault on Ken Tsang (as seen in the video clip) was less severe in terms of duration, manner and injuries than the treatment in both the Ochelkov and Belousov cases, it is safe to conclude that the assault on Tsang did not amount to torture.
     In Hong Kong there is no specific criminal offence to inflict CIDTP.  Such conduct would come within the offences in the Offences Against the Person Ordinance (Cap. 212) (OAPO).  It would seem from the video clip and injuries sustained by Tsang that there is a reasonable prospect of conviction for the offence of assault occasioning actual bodily harm (s. 39 OAPO) and if the injuries are severe enough inflicting grievous bodily harm or wounding (s. 19 OAPO). It is doubtful there is enough evidence to prove an intention to cause grievous bodily harm, thereby ruling out the more serious offence in s. 17.  Written by Simon N.M. Young.

Thursday, October 16, 2014

New Edition of Lau's Civil Procedure in Hong Kong

Sweet & Maxwell
Description: Civil Procedure in Hong Kong: A Guide to the Main Principles, 3rd Edition is a popular text with students and practitioners, has developed a reputation as being user‐friendly, simply written guide to the main principles of civil procedure. More than five years have passed since the coming into effect of the Civil Justice Reform (CJR). The Court has given much guidance on many aspects of the new rules, including in the last couple of years or so where there have been more appellate decisions. Important developments, updated case law and refinements include: the Court of Final Appeal’s restatement of the law on dismissal of want of prosecution; the large body of post CJR‐case law which has developed; a substantial amount of guidance issued by the Courts on the new CJR rules; many parts of the existing text have also been revised or refined, in order to provide clearer or expanded explanations; more examples from recent cases have also been included; increased emphasis on the Court’s post‐CJR approach; new Companies Ordinance provisions.

28 Nov 14: Symposium on Privacy in Greater China Conference

The Law and Technology Centre is organizing a Symposium on Privacy in Greater China Conference on 28 November 2014, 9am-5:30pm, 11/F, Cheng Yu Tung Tower, Faculty of Law, University of Hong Kong.  
Description: The one-day symposium focuses on the development of privacy and personal data protection in Hong Kong, Macao, Taiwan and mainland China, the four regions with close cultural ties and sharing similar impacts from advancing Internet and communication technologies. Local and international experts from the academics, industries, and regulatory authorities will gather to explore and reflect on the privacy challenges and legal responses in the four jurisdictions respectively, in particular on health data protection and consumer data handling. In addition, a special Roundtable discussion will be held, focusing on the controversial Right to be Forgotten.  Keynote Speaker: Allan Chiang (Privacy Commissioner).  Other Speakers: John Bacon-Shone, Anne Cheung, Yongxi Chen, Ding Chunyan, Henry Chan, Pancy Fung, Stuart Hargreaves, Chih-hsing Ho, Terry Kaan, Ching-Yi Liu, Lin Wei, Charles Mok, Carly Nyst, Marcelo Thompson, Ken Yang, Yan Meining, Zhao Yun.  Cost: Free for students, otherwise $150 registration fee.  Click here to register. 

Wednesday, October 15, 2014

Mediation in Hong Kong

12 October 2014
Abstract: The Hong Kong Mediation Ordinance (the ‘Ordinance’) was passed on 15 June 2012 and came into force on 1 January 2013. The Ordinance applies when mediation is conducted at least partially in Hong Kong or pursuant to a written agreement to mediate which refers to the law of Hong Kong or the Ordinance itself. It aims to provide a regulatory framework for promoting the use of mediation as a dispute resolution process and protecting the confidential nature of mediation communications. It defines ‘mediation’ as a facilitative process in which one or more neutrals assist disputants to identify the issues in dispute, explore and generate options, communicate with one another, and/or reach a settlement agreement as to the whole or part of the dispute. Further, it prohibits disclosure or admissibility of mediation communications unless in exceptional circumstances or with leave of the court.  Click here to download the full paper from SSRN.

Tuesday, October 14, 2014

Davis on Why NPCSC's Decision Threatens Rule of Law in Hong Kong

Real Threat to Rule of Law Lies in NPC's Reform Ruling
South China Morning Post
14 October 2014
Michael Davis

Disobedient civilians pale in comparison to blatant violation of guarantees in Basic Law

Hong Kong protesters have recently been under attack by prominent Beijing officials and the state media for allegedly violating the rule of law and for making democracy proposals that are said to violate the Basic Law.
    At the same time, government representatives, in discussions with student protest leaders, have emphasised that any talks to resolve the demonstrations must be based on the Basic Law. The implication of this insistence is that the protest leaders oppose the city's mini-constitution.
    Are these accusations and claims convincing? Or is it more apparent, as many protesters believe, that the central government has undermined both the rule of law and the Basic Law?  Click here to read the full article.

Monday, October 13, 2014

Glofcheski on Suing Protesters for Business Losses

South China Morning Post
13 October 2014
A travel firm is suing Occupy Central co-founder Benny Tai Yiu-ting for business losses suffered during the demonstrations. There may be others contemplating similar claims.
    As a matter of legal and social policy, business losses that are not intentionally caused and inflicted on a targeted victim are not protected by civil law. Such losses are expected to lie where they fall. This is part of the give-and-take of living in a free society that follows market principles, in which no one is guaranteed a profit.
   This must be so because there are so many factors that contribute to business success or failure. For this reason, it has long been established as a matter of law that there is no relationship of legal duty owed to business enterprises by members of the public, including those carrying out public demonstrations.... Click here to read the full article.

Sunday, October 12, 2014

Former Dean Chan Visits U Penn Law as Bok Professor

Former Dean of the Faculty of Law, Professor Johannes Chan, joins Professors Martin Loughlin (LSE), Wolfgang Schoen (Max Planck Institute), and Helena Alviar Garcia (Universidad de los Andes, Colombia) as this year's 2014-2015 Bok Visiting International Professors at the University of Pennsylvania Law School.  Penn Law website: "Each year as part of the Bok program, acclaimed intellectuals from around the world teach short, highly focused courses at Penn Law in their areas of expertise.  Previous visiting professors have included judges, law school deans, and high-ranking government officials, who have taught on everything from the regulation of Indian capital markets to the legal aspects of the Israeli-Palestinian conflict."  Professor Chan is visiting Penn Law from 6-24 October 2014 and will be teaching "Development of Constitutionalism in Hong Kong".

CCPL Publishes New Issue of Rights Bulletin

Centre for Comparative and Public Law
CCPL Rights Bulletin
Volume 3, Issue 2
October 2014

1. GA v Director of Immigration, Court of Final Appeal:
Right to work — ICESCR — Freedom from inhuman and degrading treatment — BORO — Freedom of choice of occupation — Basic Law —Whether a right to work exists for mandated refugees and screened-in tor-ture victims

2. HKSAR v Agara Isaiah Bishop, Court of Appeal
Criminal law and procedure — Trafficking in danger-ous drugs — Protection of informer identity — Wheth-er statutory provisions contradicted the constitutional right to fair trial — Common law informer privilege — Informer anonymity where innocence of defendant at stake

3. R v The Duty Lawyer Service, PAV v The Duty Lawyer Service, Court of First Instance
Duty Lawyer Service – Torture claimants – Irrationality – Wednesbury unreasonableness – Whether refusal to as-sign to the applicant a particular person as his choice of lawyer under the Duty Lawyer Service to represent him is lawful

4. Singh Arjun v Secretary for Justice, District Court
Civil procedure – Admissibility of expert evidence – Minimum threshold test of relevance and probative value applicable to cases under Race Discrimination Ordinance (Cap 602) – Statutory interpretation of “service” in RDO and finding of facts are exclusively the court’s duty – Active case management under Rules of District Court O 1A – Effect of undue delay in seeking leave

5. ST v Betty Kwan, Court of Appeal
Convention Against Torture - future risk of torture – oral hearings – due procedure - official discretion – high standards of fairness

See also seven other international cases profiled.  CCPL also recently published a new Occasional Paper by Mr. Stefan Gruber titled "Perspectives on the Investigation, Prosecution and Prevention of Art Crime in Asia".

Saturday, October 11, 2014

Davis on Negotiations with the Hong Kong Protesters

Talks Between Protesters and Government Must Proceed on Basis of Trust
South China Morning Post
10 October 2014
Michael Davis
Hong Kong people and the media
are surely wondering whether anything positive can come out of the proposed democracy negotiations. With the National People's Congress Standing Committee decision effectively denying universal suffrage and the protesters demanding both civil nominations and international standards, the government is between the proverbial rock and a hard place.
      The protesters are no better off in seemingly asking for what is widely believed to be impossible. Few people expect Beijing to change its mind. But, with such passionate public support behind protest demands, it is not time to throw in the towel. A constructive and sincere dialogue between the government and protesters could move the ball forward for both. Click here to read the full article.

Thursday, October 9, 2014

Loper on the Student Protesters

Students' protest in no way undermines our rule of law
South China Morning Post
9 October 2014
Kelley Loper
Like many others, I have been inspired by the recent demonstrations for genuine democracy in Hong Kong. I admire the courage and conviction of Hong Kong's younger generation and others who are working to effect positive change through peaceful means. The students' display of civic-mindedness and their desire to participate in the political process bode well for Hong Kong's future.
    Some commentators, however, claim that the protesters are hurting Hong Kong and even undermining the rule of law, a core value and an important feature of Hong Kong's collective identity. This view, however, fails to take into account the richness and complexity of the rule of law.  Click here to read the full article.

Wednesday, October 8, 2014

Realising Universal Suffrage After Occupy Central

October 2014
Abstract: Of all the preconditions to realising universal suffrage of Hong Kong’s Chief Executive in 2017, the most challenging is getting two-thirds of the 70 legislators to agree on a reform proposal. On 31 August 2014, the Standing Committee of the National People’s Congress made this challenge even more difficult by imposing restrictive and controlling conditions on the nomination process. The decision sparked unprecedented protests and acts of civil disobedience on the streets of Hong Kong in September and October 2014. Legislators have until the middle of 2015 to determine whether they can agree with the central and local governments on a single reform proposal. This paper assesses the arguments for and against reform, within the constraints of the Standing Committee’s decision. It argues in favour of reform so long as there are sufficient reassurances and measures to regain the trust of the Hong Kong people. The complete reform proposal will need to have sufficient safeguards and counter-balances to ensure that the central government does not control both the nomination and election results. All stakeholders need to take positive steps to make for more favourable reform conditions.  Click SSRN to download the full paper.

Mason and Lee write for Hong Kong Lawyer

Assistant Professors Lee Mason and Dr. Emily Lee contributed articles to the September 2014 issue of Hong Kong Lawyer.
"Consumers and Unfair Contact Terms: Inadequate Legal Protection and Suggestions for Reform", Lee Mason
"Judicial Recognition Mechanism Required for Hong Kong-China Cross-Border Insolvencies", Dr. Emily Lee
See also the announcement re: "45th Anniversary of HKU Faculty of Law: Law Alumni Reunion Dinner"

Sunday, October 5, 2014

When Can the People's Liberation Army Intervene in Hong Kong's Umbrella Revolution?

Written by Professor Fu Hualing (Faculty of Law, The University of Hong Kong)

Policing and criminal law are matters within Hong Kong’s autonomy and powers that have been delegated to the Hong Kong Special Administrative Region (HKSAR). According to paragraph 2 of Article 14 of the Basic Law, “The Government of the Hong Kong Special Administrative Region shall be responsible for the maintenance of public order in the Region.” The Chinese military has a legitimate presence in Hong Kong for defence purposes. Under paragraph 1 of Article 14, the military in Hong Kong “shall not interfere in the local affairs of the Region.” The Chinese Garrison Law (which applies to Hong Kong as a national law listed in Annex III of the Basic Law and promulgated by the HKSAR) reiterates the non-interventionist principles. Article 5 of the Garrison Law itemises the defence functions that the garrison force may perform in Hong Kong and Article 9 also makes it explicit that the military shall not interfere with Hong Kong’s local affairs.

However, the central government may authorise military intervention in an otherwise local matter of policing and public order in two exceptional circumstances. The first is intervention on request under Article 14 of the Basic Law. According to paragraph 3 of that article, “The Government of the Hong Kong Special Administrative Region may, when necessary, ask the Central People's Government for assistance from the garrison in the maintenance of public order and in disaster relief.” In my view, the wording above clearly indicates the following:
(1) A request must be made by the HKSAR Government through the Chief Executive (CE), and no other government department, including the police, has the authority to make the request;
(2) The request must be made to the Central People’s Government (CPG);
(3) Military assistance may be requested for the purpose of either maintaining public order or disaster relief;
(4) The CE determines whether it is necessary to make a request for military assistance; and
(5) Upon request, the CPG may authorise the garrison force in Hong Kong, not any other security forces, such as the military police, which is in charge of riot control in the mainland, to assist.

The second form of military intervention is proactive intervention in an emergency situation. Paragraph 4 of Article 18 of the Basic Law provides, "In the event that the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in the Region". This paragraph provides an extraordinary procedure which, essentially, authorises the NPC Standing Committee and the CPG to apply mainland law directly in Hong Kong. The Basic Law provides three preconditions for the declaration of an emergency in Hong Kong:
(1) There is a turmoil;
(2) The turmoil endangers China’s national unity or national security; and
(3) The turmoil is beyond the control of the government of Hong Kong. 

First, there must be a turmoil. It seems clear that the NPC Standing Committee has the power to determine whether a turmoil exists in Hong Kong. In addition, since paragraph 4 of Article 18 clearly relates to a matter outside Hong Kong’s autonomy, the NPC Standing Committee would make a determination according to Chinese law and procedures. The governing legislation on martial law in the mainland is the Martial Law (Chinese version) which was passed by the NPC Standing Committee in 1996. Unfortunately, while the Basic Law does not define turmoil or emergency with any clarity, the Martial Law does not provide further guidance either. Article 2 of the Martial Law states, "In an event of turmoil, riot or serious disturbance that severely endangers national unity, security or social and public order creating an emergent condition in which social order and people’s livelihood and property cannot be protected without using exceptional measures, the State may decide to implement martial law.

Martial law was previously imposed in parts of Beijing and Lhasa in 1989 and the current Martial Law has not been used since its enactment. Instead of invoking martial law measures, the government tends to use ordinary criminal law to maintain order in exceptional circumstances such as the riots and turmoil in Tibet in 2008 and in Urumqi in 2009. The government prefers to impose de facto martial law measures without formally invoking the Martial Law

The second precondition is that the turmoil in Hong Kong engenders China’s national security. As the case in domestic law, whether a turmoil exists in Hong Kong is determined not merely by an objective assessment of the seriousness of a riot, unrest or disturbance, but also by a subjective interpretation of the NPC Standing Committee as to whether the riot, unrest or disturbance has posed a fundamental threat to China’s national security. National security is again an ill-defined term and can only be meaningfully decided in the special circumstances of a particular case. National security is a familiar term for people in Hong Kong. It was the subject-matter in 2003 in the saga of proposed Article 23 legislation. In the recent round of constitutional reform, China has again cited national security concerns as the main reason for limiting democratic participation in the 2017 CE election. Notwithstanding the inherent vagueness of the concept of national security, a clear sign to watch is whether the turmoil in Hong Kong, however defined, is having a significant impact in the mainland and has been effectively replicated in mainland cities. 

The third precondition for an emergency in Hong Kong is the crucial factor that the turmoil is beyond the control of the Hong Kong government and, which means, in effect, that the CPG no longer has any trust that the Hong Kong government has the ability and/or the will to place the turmoil under effective control. Once the preconditions are satisfied and an emergency declared, the CPG would then issue an order to extend relevant national laws to Hong Kong, likely to include the Martial Law to impose martial law measures. Under Article 16 of the Garrison Law, the garrison force in Hong Kong bears the responsibility to enforce the national laws that are extended to Hong Kong during an emergency. 

The invocation of Article 18 and the declaration of an emergency in Hong Kong would necessarily mean the suspension of the Basic Law and constitutional rights in Hong Kong, and effectively it signals the end of Hong Kong as we know it. This would be a disaster that neither Beijing nor Hong Kong wish to see. Given China’s ability and preference to preempt a constitutional crisis, it is very unlikely for the central authorities to allow Hong Kong to be dragged into an emergency. The Communist Party is well-known for its preemptive crisis management. 

Therefore a more likely scenario, if it is to occur, is the application of Article 14 of the Basic Law through which the Hong Kong government would seek military assistance from the garrison force on the ground of assisting to restore public order before full-fledged turmoil appears in Hong Kong.

Webinar: Explaining the "Umbrella Revolution"

Professors Michael Davis and Victoria Hui (University of Notre Dame) will be speaking on "Explaining the 'Umbrella Revolution' for Political Rights in Hong Kong" in a webinar on Tuesday, 7 October 2014, 10:00 EST (10pm HK time) organised by the International Center on Nonviolent Conflict.  Click here to register to join the webinar online.  Description: This webinar analyzes the unfolding "umbrella revolution" in Hong Kong. International media have reported on how hundreds of thousands of Hong Kong protestors have maintained nonviolent discipline and order. International observers see images common to nonviolent movements around the world: strength in number, determined faces in front of riot police, slogans, songs, and more. Beneath such broad strokes of similarities, Hong Kong is unlike other cases given the constitutional structure of "one country, two systems" agreed to between Beijing and London. While Hong Kong has only semi-democracy, people are free to protest. While the police sometimes make arbitrary arrests, the independent judiciary inherited from the colonial era routinely releases activists. This constitutional structure presents a very open political space unseen in the rest of China and yet makes it difficult for activists to mobilize the largely contented population. Against this backdrop, the unprecedented use of riot police and the firing of tear gas seemed to have galvanized popular support for the protesters fighting for genuine democracy and increased sympathy for their nonviolent actions.  To view the Webinar, click here.

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