Saturday, November 29, 2014

What Makes a "Landmark" or "Leading" Case?

"Of 'Landmark' or 'Leading' Cases: Salomon's Challenge"
Journal of Law and Society
Vol. 41, Issue 4 (December 2014)
Ernest Lim
Abstract: This article seeks to question the two dominant conceptions of ‘landmark’ or ‘leading’ cases in English legal scholarship, using the House of Lords decision in Salomon v. Salomon Co Ltd. – the most famous case in corporate law – as a case study. It argues that neither the first dominant conception of ‘leading’ or ‘landmark’ cases, characterized by the analysis of the intrinsic merits of a case, nor the second, which looks at the historical contexts in which cases were decided, appears sufficient by itself to determine whether a case is landmark or canonical. Rather, we have to look at how the canonicity of a case is constructed by subsequent courts. The article seeks to advance the debate concerning the formation of landmark cases and aims to challenge certain prevailing views on the canonicity of corporate law's arguably most significant case.

Friday, November 28, 2014

Law Faculty Holds Research Integrity Training

Hong Kong universities are paying closer attention to the promotion of effective research ethics and integrity standards and procedures. Professor Mark Israel of the University of Western Australia (UWA) visited the Faculty of Law on 26-27 November 2014 to conduct two research integrity training sessions for Faculty members and RPG students respectively.
Professor Israel is Winthrop Professor of Law and Criminology in the Faculty of Law, UWA.  He is an expert in the areas of research ethics and integrity, and higher education and research policy.  The second edition of his book, Research Ethics and Integrity for Social Scientists (Sage) was published in October 2014.  Professor Israel outlined important principles in HKU's Policy on Research Integrity and other international standards including the Singapore Statement on Research Integrity.  Hypotheticals were used to illustrate the practical application of integrity standards.  The hypotheticals raised issues concerning conflicts of interest, plagiarism, authorship, duplicate and redundant publication (self-plagiarism), editorial ethics, grants and procurement, international collaboration and using data without ethical approval. The training sessions were supported by the University of Hong Kong's Research Integrity Funding Scheme.

Thursday, November 27, 2014

Fu on Building Hong Kong's Future

Fu Hualing was interviewed by Human Rights in China for their 'Building Hong Kong's Future' series.  Professor Fu reflects on the impact of the Occupy movement on the student protesters, on how it has served an educative role and how it may encourage them to become future Hong Kong politicians.  "It has been educational for everyone...It will open up the political space in Hong Kong".  "Something bigger will come out of this", beyond the demonstrations.  Click here to view the recorded interview.

Tuesday, November 25, 2014

Davis Interviewed on The Pulse on Rule of Law

Michael Davis was interviewed (on 21 Nov) on the TV programme, The Pulse, RTHK.  He was asked by the interviewer, Steven Vines, for his views on Occupy Central's impact on the rule of law, especially after the private court injunctions were obtained.  Click here to view the full video interview.

Tai Recognised as Leading Global Thinker by Foreign Policy

For the past sixth years, Foreign Policy (FP) magazine has been publishing a special issue of 100 leading global thinkers.  In the 2014 special issue (published in November), the thinkers are organised under ten categories: agitators, challengers, innovators, chroniclers, artists, decision-makers, naturals, advocates, healers and moguls.  Benny Tai and Joshua Wong were recognised together under the category of 'challengers' for their activities in Occupy Central or, as captioned by FP, "For making Beijing sweat".  FP records a notable fact that "Tai was once described in the South China Morning Post as 'one of those cuddly professors found on every campus who would talk to anyone interested in their research'".   As with the general reaction to Occupy Central, the media reaction to this recognition has been both positive and negative.  Whatever one might think of Occupy Central, it has certainly been a remarkable example of 'knowledge exchange' which is now a well-established pillar of Hong Kong universities along side research, teaching and service.

Thursday, November 20, 2014

Say Goo on the Limits of Directors' Duties in Fostering Corporate Social Responsibility

Research Handbook on Directors' Duties
Edward Elgar, November 2014
Editor: Adolfo Paolini
Book description: Directors’ duties and liabilities have become the centre of a general legal discussion following the 2008 financial scandal that resulted in global recession. Questions have arisen regarding the ways in which the directors of the world’s major financial institutions have handled their duties and how their decisions have impacted investors, shareholders and consumers. This detailed Handbook discusses the nature of the relationship between a company and its directors, assessing issues such as how duties are discharged, liabilities that may arise and what interests directors should consider before embarking on commercial ventures. AIIFL Director, Prof Say Goo, and Desiree Klingler (LLM 2013) contribute a chapter titled "The limits of directors' duties in fostering corporate social responsibility and the idea of a multi-stakeholder board" (pp. 185-210)

Wednesday, November 19, 2014

New Hong Kong Magistrates Appointed

Congratulations to the 16 Permanent Magistrates and 5 Special Magistrates appointed today by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission.  We are honoured to see that 11 of new appointed magistrates are graduates of our Faculty.  They include Ms Debbie Ng Chung-yee (PCLL 1998; LLM 2007),  Ms Veronica Heung Shuk-han (PCLL 2001), Ms Doris To Kit-ling (PCLL 1995), Ms Kelly Shui (LLB 1991; PCLL 1992), Ms Catherine Cheng Kam-lin (BA 1985; LLB 1991; PCLL 1992), Mr. Kenneth Chan Ping-chau (PCLL 2004), Mr. Lee Siu-ho (LLB 1991; PCLL 1992), Ms Peony Wong Nga-yan (LLB 1996; PCLL 1997), Mr. Colin Wong Sze-cheung (PCLL 1999), Mr. Andrew Mok Tze-chung (PCLL 2007), and Mr. Yu Chung-pong (LLB 2002; PCLL 2003).

Tuesday, November 18, 2014

Reyes on Cambodia's New National Commercial Arbitration Centre

The Cambodia Daily
By Kang Sothear
15 November 2014
The newly established National Commercial Arbitration Center (NCAC) may have been set up to al­low businesses to settle disputes outside the court system, but it still needs support from judges and court officials to do its work effectively, its president said on Friday.  “Arbitration needs support from the judicial system. For ex­ample, an arbitrator issues a decision, but the decision cannot be im­ple­ment­ed directly by the arbitrator until it passes through courts first [in order] to be recognized,” said Ruos Monin, the president of the NCAC. “So, if the court does not recognize the decision, it’s meaningless.”... Anselmo Reyes, a professional ar­bitrator working in Hong Kong, suggested that all arbitration cases should be dealt with by one or two experienced judges who could co­operate with the NCAC...  Click here to read the full article.

Sunday, November 16, 2014

Kwok Writes on Hong Kong's New Competition Law

Vol. 37, No. 4, 2014
November 2014
Abstract: Enacted in 2012, the Hong Kong Competition Ordinance represents the first cross-sector competition legislation governing the Hong Kong Special Administrative Region. This article critically evaluates the peculiar aspects of the Competition Ordinance with reference to the legislative history as well as the competition law and enforcement experience of foreign jurisdictions (such as the European Union, the United States, and Australia). These aspects include: (i) the lack of cross-sector merger control; (ii) the ‘substantial market power’ requirement under the second conduct rule; (iii) the ‘object or effect’ test under the second conduct rule; (iv) the blanket exclusion of statutory bodies; (v) the power of the Chief Executive in Council to disapply the competition rules; (vi) the turnover de minimis thresholds; (vii) warning notices; (viii) the judicial enforcement model and restrictive private actions; and (ix) the capping of fines at 10% of local turnover. This article discusses solutions to some of these problems, and the challenges ahead for competition law enforcement in Hong Kong.  Click here to download the article.

Friday, November 14, 2014

Faculty to Speak at Asia Financial Centres Symposium, Shanghai (21-22 Nov)

A Comparative Study from Singapore, Hong Kong, and Mainland China
Shanghai Jiao Tong University, Koguan Law School, Shanghai, PRC
21-22 November 2014
Co-organised by the Asian Law Center, Koguan Law School, SJTU and the Centre for Banking and Finance Law and Centre for Asian Legal Studies, National University of Singapore
Four Faculty members will be speaking at this regional event.  Xianchu Zhang will speak on market access and a level playing field in China as a socialist market economy.  Douglas Arner will present on financial product innovations and the challenges of marketing financial services in Hong Kong.  Simon Young will present on Hong Kong's criminal framework for financial centre development.  Michael Jackson will present on anti-corruption law and enforcement in Hong Kong.  They join other speakers from Scotland, Singapore, Hong Kong and Mainland China.  Click here for the full programme.

Thursday, November 13, 2014

CCPL Submission for the EOC's Discrimination Law Review

The Centre for Comparative and Public Law (CCPL) has made a written submission for the Equal Opportunities Commission's Public Consultation on the Discrimination Law Review.  CCPL broadly supported the EOC's proposals for modernisation, harmonisation and simplification of the existing legal framework.  It also highlighted the need to comply with international human rights standards, promote substantive equality and provide an effective remedy for all forms of unjustifiable discrimination.  Antonio Da Roza (Research Assistant Professor) deals with the issue of consolidation and harmonisation based on his study of the structure and content of the four existing anti-discrimination statutes.  From his original empirical study of discrimination litigants, he emphasises the need to ensure free and fair access to the judicial system when making discrimination claims.  Farzana Aslam (Principal Lecturer and Associate Director, CCPL) outlines shortcomings in promoting equality and non-discrimination and highlighted concerns with the EOC's conciliation mechanism.  She advocates for a consolidated human rights body that complies with the Paris Principles.  Kelley Loper (Assistant Professor and Deputy Director, CCPL) explains the need to comply with Hong Kong's international human rights obligations, which include duties to promote substantive and formal equality and to address all forms of unjustifiable discrimination.  She proposes amending the definition of 'indirect discrimination', strengthening the reasonable accommodation requirement, expanding the list of prohibited grounds to include sexual orientation, gender identity, age, religion and immigrant status, and minimising or removing broad exceptions.  Click here to download the full report.

Tuesday, November 11, 2014

Prosecution response to Occupy Central?

As of 3 November 2014, 324 persons were arrested by the Hong Kong police in connection with the "Occupy Central" protests which began at the end of September 2014.  In theory, thousands may be liable to prosecution for offences that have resulted from the illegal occupation of roads and the altercations arising from such occupation.  What approach should the Department of Justice (DOJ) adopt to potential prosecutions flowing from Occupy Central?  
     As police internal guidelines specify that DOJ's advice should be obtained before charges are laid in public order matters, the DOJ plays a central role in deciding the appropriate criminal justice response.  Its task will not be easy.  Already, pro-establishment legislators are asking the Secretary for Justice how prosecutions will be handled.  But even before Occupy Central, there was public concern that a stricter approach was being adopted given the rise in the number of public order prosecutions in 2011.  
    Above all, the DOJ needs to be, and appear to be, apolitical.  This lies at the heart of Article 63 of the Basic Law, which refers to the DOJ controlling criminal prosecutions "free from any interference".  The Secretary for Justice has repeated in public statements that, "All prosecution decisions are made in accordance with the law, the Prosecution Code and the evidence, totally free from any political, media or public pressure".  For this reason the Secretary should consider withdrawing from Occupy-related prosecution decisions because his role on the political reform Task Force may be seen as being too close to the subject matter of the protests.  Delegation of authority by the Secretary to the Director of Public Prosecutions (DPP) to "avoid any public perception of bias or partiality in the handing of the case" is an established practice in the DOJ and was last done in relation to a corruption complaint made against the Chief Executive in October 2014.  
     An appropriate prosecutorial response is needed to help reaffirm the rule of law and restore people's confidence in the legal system. An appropriate response, however, does not mean that everyone who may have committed an offence should be prosecuted, nor does it mean that a particularly harsh or soft approach should be adopted.  It simply means that the usual prosecutorial policies and practices should be adopted in accordance with the law.  The law, of course, does not specify who should or should not be prosecuted as that is a matter for prosecutorial discretion.  The DOJ's 2013 Prosecution Code repeats the established two-part test for deciding when to proceed and continue with a prosecution: (1) "whether the evidence demonstrates a reasonable prospect of conviction"; and (2) "the general public interest must require that the prosecution be conducted" ([5.3] & [5.5]).  Of the fourteen non-exhaustive public interest considerations listed in the Code, the last one is noteworthy: "(n) the availability and efficacy of alternatives to prosecution, such as a caution, warning or other acceptable form of diversion".  
     In the past few years, the DOJ has adopted a diversionary approach to public order cases.  Only serious cases warrant prosecution.  In the Prosecutions Division Yearly Review 2011, the DPP explained the DOJ's approach to public order cases:
Our fundamental rights and freedoms are important to all of us.  However, we live as a community and it is equally important that we respect the rights and freedoms of others as we go about our lives.  In recent times, the number of public demonstrations has significantly increased, and this reflects well on our society both for its respect for fundamental rights and freedoms and for its tolerance and understanding.  Unfortunately, some people on these occasions have gone beyond what is reasonable, and prosecution action has been taken against them.  It is important to appreciate that the fundamental right involved is a right to a lawful and peaceful demonstration and that the authorities have a positive duty to facilitate the proper exercise of it.  As prosecutors we always keep this in mind and we prosecute only when people seriously cross the line and behave in an unlawful manner.
I have taken a more active role in ensuring that first-time offenders are treated with an appropriate measure of compassion in order to steer them away from crime and not into it.  These cases are sometimes difficult, and require care and consideration, but are well worth it from the community's point of view.  Giving a person a second chance by not seeking a conviction in appropriate cases can have a significant and salutary effect.  Often people do not appreciate that when we agree to bind over a person, we are not totally letting him or her off.  The person still has to admit the facts of the case and his or her wrongdoing in open court and give an undertaking to the court to be of good behaviour or to keep the peace for a specified period.  The public interest is well served by this approach in appropriate cases. (emphasis added, p. 7)
The same message was contained in the 2012 Yearly Review where the benefits of diversion were emphasised:
When someone has been given a second chance in this way we notice that they rarely offend again.  It does work and we see people being steered away from crime and not into it.  A criminal conviction can brand a person for life and with young offenders that can break their spirit, ruin their career and send them down the wrong path; with elderly offenders who have lived a hitherto blameless life it can bring a disproportionate level of shame and anxiety.  Each case deserves our thoughtful consideration and understanding and, in appropriate cases, justice is served by not seeking a criminal conviction. (p. 7)
In addition to using binding over (where charges are laid and later withdrawn) to resolve cases, the DOJ has also used written warnings to divert cases from entering the system.  
     Given its importance, specific attention was paid to public order cases in the DOJ's 2013 Code.  The Code acknowledges that offences allegedly committed in conjunction with the exercise of the "freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration" (Basic Law, Article 27; Hong Kong Bill of Rights, Articles 16 to 18) "may give rise to special considerations" ([19.2]):
19.3  Criminal prosecutions should only be pursued when the relevant conduct exceeds sensible proportions or the bounds of reasonableness (Yeung May-wan v HKSAR (2005) 8 HKCFAR 137).  Cases in relation to public order events require the striking of a balance between the interest of society in maintaining public order and the right of a person lawfully and peacefully to exercise his or her rights.
This approach of restraint and diversion appears to have been consistently applied.  From September 2013 to June 2014, there were 5,529 public order events and, as of 8 September 2014, only 16 protesters were prosecuted.   
     The question remains whether the existing approach to public order cases needs to be modified when, unlike past protests, prolonged civil disobedience takes place causing great disruption to public transportation and violent collateral offending.  My view is that the same approach can be applied to the circumstances of Occupy Central.  Alternative measures and diversion should be available to those who protested in a non-violent manner (whatever their cause), even if they may have been involved in minor scuffles and committed offences no serious than assault, criminal damage to property, public obstruction, disorderly behaviour, unauthorized assembly or unlawful assembly.  Where unjustified injury has been inflicted on a person,  serious damage has been caused to property or criminal contempt of court has been committed, prosecution should be considered in accordance with the two-part test.  Three important considerations that bear on the public interest assessment should be highlighted.
      First, it is recognised that an offence motivated by civil disobedience reflects a lesser degree of moral culpability than would otherwise be the case (see items (b) and (f) of public interest considerations at [5.9] of the Code).  In MacMillan Bloedel Ltd v Brown (1994) 88 CCC (3d) 148 at [126] (BCCA), it was said that,
 Acting in accordance with the principle of civil disobedience is not a defence in law. But surely it must be a relevant factor in assessing moral culpability for the offences. It will not always be a mitigating factor. Particularly in the case of repeat offenders, it may be an aggravating factor. But the fact that the act is motivated, not by self-interest, but by a desire on the part of the offenders to promote their perception of the public good, however inappropriately insistent, must affect the assessment of moral culpability. (emphasis added)
In referring to the acts of civil disobedience in R v Jones [2007] 1 AC 136 at [89] (HL), Lord Hoffmann wrote,
The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions. (emphasis added)
The British Columbia's Crown Counsel Policy Manual (2 October 2009) recognises that the use of criminal sanctions in respect of acts of civil disobedience "may not always be in the public interest".  Similarly, the Australian Commonwealth DPP's former guidelines on civil disobedience prosecutions (issued in 1986 and reissued in 1991) noted,
History shows that to prosecute people for relatively minor offences that arise from the expression of strongly held moral convictions or ideological beliefs may be fruitless.  Indeed, such action may well result in endemic bitterness and the "martyrdom" of those prosecuted.
     Second, "the public interest may be served by not prosecuting a suspect who has made admissions, demonstrated remorse, compensated a victim..." (item (h) of [5.9] of the Code).  Many Occupy Central organisers and participants have publicly stated that they accept the legal consequences of their actions and will surrender and co-operate with the authorities at the appropriate time.  Such conduct will be seen as highly mitigating.  As for compensation, the "victim" here is clearly the community as a whole.  The DOJ may wish to consider unique but meaningful forms of diversion that require candidates to perform a fixed number of voluntary hours of community service before diversion is granted.  Giving something back to the community, whether that be, for example, cleaning roads, serving as crosswalk attendants or assisting the elderly, will help to further much needed reconciliation and restorative justice.  Even if a prosecution goes ahead, courts may upon conviction consider imposing a community service order in lieu of imprisonment.
     Third, given that some of the participants are less than 18 years of age, it is necessary to bear in mind relevant treaty obligations under the UN Convention on the Rights of the Child (CRC) (Articles 1 to 3, 40), which are reflected in domestic provisions including section 109A of the Criminal Procedure Ordinance (Cap. 221) and sections 11 and 15 of the Juvenile Offenders Ordinance (Cap. 226) (see item (j) in [5.9] of the Code).  In the UN Committee on the Rights of the Child's General Comment on children's rights in juvenile justice, it is stated,
25. In the opinion of the Committee, the obligation of States parties to promote measures for dealing with children in conflict with the law without resorting to judicial proceedings applies, but is certainly not limited to children who commit minor offences, such as shoplifting or other property offences with limited damage, and first-time child offenders. Statistics in many States parties indicate that a large part, and often the majority, of offences committed by children fall into these categories. It is in line with the principles set out in article 40 (1) of CRC to deal with all such cases without resorting to criminal law procedures in court. In addition to avoiding stigmatization, this approach has good results for children and is in the interests of public safety, and has proven to be more cost-effective.

26. States parties should take measures for dealing with children in conflict with the law without resorting to judicial proceedings as an integral part of their juvenile justice system, and ensure that children’s human rights and legal safeguards are thereby fully respected and protected (art. 40 (3) (b)).
     By following its established approach to public order cases, the DOJ will help to ensure that only those cases most deserving of prosecution will consume our precious and limited judicial resources.  Written by Simon N.M. Young.  A condensed version of this post was published in the South China Morning Post on 11 November 2014.  For a Chinese translation of this post, click here.

Monday, November 10, 2014

CL Lim Interviewed by Reuters on Trans-Pacific Trade

"U.S. rules out major Trans-Pacific trade announcement at APEC"
Reuters, Beijing
9 November 2014
Michael Martina
There will be no "major announcement" on a Washington-backed Asia-Pacific free trade deal during a meeting of leaders from the region in Beijing this week, U.S. Trade Representative Michael Froman said on Sunday. Few expected that a deal on the ambitious 12-country Trans-Pacific Partnership (TPP) could be reached this year, largely because of a deadlock between the pact's two biggest economies, the United States and Japan, over how widely Japan will open its doors to farm exports...Chin Leng Lim, a trade expert and professor of law at the University of Hong Kong, said there should be a TPP deal before U.S. presidential electioneering picks up next summer if it is to avoid U.S. domestic political hurdles...  Click here to read the full article.

Sunday, November 9, 2014

New Study on Public Attitudes Towards Sexual Orientation Anti-Discrimination Legislation

"Public Attitudes Towards Gays and Lesbians and Towards Sexual Orientation Anti-Discrimination Legislation"
Centre for Comparative and Public Law
6 November 2014
Kelley Loper, Holning Lau, Charles Lau
Abstract: There is mounting discussion about introducing legislation in Hong Kong to prohibit discrimination based on sexual orientation in the private sector. The Hong Kong Equal Opportunities Commission launched a Discrimination Law Review in July 2014 and has commissioned a study on the feasibility of legislating against discrimination on the basis of sexual orientation, gender identity and intersex status. To inform this conversation, this briefing paper presents public opinion data from a 2013 telephone survey. We report public attitudes towards gays and lesbians and towards proposed anti-discrimination legislation.  Click here to download the full paper.

Saturday, November 8, 2014

New Book: Companies (Winding-Up and Miscellaneous Provisions) Ordinance

Sweet & Maxwell
December 2014
Editors: Antonio Da Roza and Kevin Tang
Description: The new Companies Ordinance (Cap. 622) came into effect on 3 March 2014. While Cap. 32 has not been completely repealed except those provisions relating to winding-up and insolvency of companies and prospectuses. The Cap. 32 has now been re-titled as “Companies (Winding-Up and Miscellaneous Provisions) Ordinance”. This title is a must-have publication to examine each and every section of the remaining law, highlighting the key changes incorporated and amended as a result of the enactment of the new Companies Ordinance. The main focus of this Companies (Winding-Up and Miscellaneous Provisions) Ordinance: Commentary and Annotations including: 1. Prospectives of Companies registered here in Hong Kong; 2. Winding-Up of a Company; 3. Insolvency of a Company; 4. Director duties of care and disqualification; 5. Appointment of receivers and managers of insolvent companies; 6. Restrictions on the sale of shares; 7. Restrictions on the offers of shares for sale; 8. Prevention of evasion of the societies; and 9. For any other incidental and connected matters. Notable highlights for these commentary & annotations are: • Insightful commentary and annotations of all those 244 Sections of Cap. 32 which remain in force; • Select list of specified forms for use under Cap 32 regarding the Winding-Up and Insolvency of a Company; and • Briefing and consultation notes on the recommended improvements to the clarity and application of the Corporate insolvency and Winding-Up provisions.

Davis on why Occupy not undermining rule of law

"Occupy protests breaking law, but not undermining Hong Kong's rule of law"
South China Morning Post
8 November 2014
Michael Davis
A small group of lawyers has added to the chorus of establishment figures denouncing the Occupy movement as undermining the rule of law. Are they right?
     As the protests stretch well into their second month, we are hearing increasing calls for them to end. Some of these are calls of prudence, suggesting withdrawal and alternative strategies to promote the protesters' cause. On the other side, officials and now a small group of establishment lawyers have accused protesters engaged in civil disobedience of undermining the rule of law.
     Do protesters using civil disobedience to promote democracy and better secure Hong Kong's core values pose the risks to the rule of law that officials and pro-government lawyers claim?  Click here to read the full article.

New Issue: SSRN Legal Studies Research Paper Series

Table of Contents

1. Wielding the Sword: President Xi's New Anti-Corruption Campaign
Fu Hualing, University of Hong Kong - Faculty of Law

2. Issues in Anti-Corruption Law: How Can Code of Conduct Laws Be Drafted in Order to Reduce Corruption in a Public Sector Like Romania’s?
Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford, Columbia Law School - Centre for the Advancement of Public Integrity

3. Intertemporality and International Investment Arbitration: Protecting the Jurisdiction of Established Tribunals
James D. Fry, University of Hong Kong - Faculty of Law
Odysseas Repousis, University of Hong Kong

4. An Economic Analysis of Limited Shareholder Liability in Contractual Claims
Thomas K. Cheng, University of Hong Kong - Faculty of Law

Young Interviewed by Foreign Policy on Functional Constituencies

"Let Them Eat Fish"
How Hong Kong's fisheries and other interest groups dominate the city's Beijing-backed political system.Foreign Policy
6 November 2014
Suzanne Sataline
If the Hong Kong protesters succeed, and every adult could vote in the 2017 chief executive race from a publicly chosen slate of candidates, who in the current elections system would be the biggest political losers? The Aberdeen Fishermen Friendship Association, for one. Not to mention the Shau Kei Wan Stern Trawler Fishermen's Credit Co-operative Society and the Lamma Island Lo Dik Wan Aquaculture Association...The system is another gift from the British. In the mid-1980s, more than a decade before the 1997 handover of this former colony back to China, the British created a legislative elections system that relied on a network of trade groups, unions and powerful constituencies to pick lawmakers, said Simon Young, a law professor at the University of Hong Kong. Relying on elite voters and interest groups, they reasoned, was a better way to take the pulse of Hong Kong than to try to discern the will of unknown voters.  Click here to read the full article.

Wednesday, November 5, 2014

Event: The Umbrella Movement: Unfolding the Rule of Law (12 Nov)

A forum organised by the Faculty of Law, The University of Hong Kong.  When: Wednesday, 12 November 2014, 2:30pm-4:30pm, Large Moot Court, 2/F Cheng Yu Tung Tower, Centennial Campus, HKU.  Chair: Anselmo Reyes.  Panelists: Albert Chen, Johannes Chan, Eric Cheung, Ronny Tong SC and Simon Young.  Description: The occupy movement has raised myriads of questions about the rule of law.  In the forum, speakers will explore recent controversies about civil disobedience, the NPCSC decision of 31 August 2014, civic nomination and non-compliance with the injunctions.  Short presentations in English, followed by Q&A in English/Cantonese.  There will be ample time for open discussion.  All are welcome.  Click here to register.  The event can now be viewed here.

Monday, November 3, 2014

Book Review: Reading Law in Singapore, 2nd Ed

Michael Hor's co-edited work, Reading Law in Singapore, 2nd edition (LexisNexis) (with Tang Hang Wu and Nicholas Poon), published earlier this year was recently reviewed in the Law Gazette (October 2014).  The reviewer, Ms Ho Xin Ling, had high praise for the book.  She concludes, "It is often difficult to find areas to improve upon in an already superb contribution. However, the second edition of Reading Law in Singapore does just that, and provides excellent refinements to the first edition through the further contributions from distinguished law academics, young legal eagles as well as an esteemed member of the Singapore bench. For both aspiring and existing law students, Reading Law in Singapore will thus remain a book of utmost relevance in providing a comprehensive and holistic insight into a student’s journey in law school."  The book features 11 chapters on all aspects of Singapore law, from criminal law, contract law to comparative legal traditions and advocacy and moots.  Ms Ho commended the four chapters written by the Hon. Andrew Phang JA, which are written as "a simulated conversation between a law student and a professor of law at four different stages of the law student's journey from admission into law school to graduation."  On a related note, Dean Hor's co-authored book, Criminal Law for the 21st Century - A Model Code for Singapore (Academy Publishing 2013) was cited by the Singapore High Court in Koh Jing Kwang v Public Prosecutor [2014] SGHC 213, [40] & [43] for its insights on the difference between mens rea and voluntariness.  Dean Hor also spoke on "Political Activism in Authoritarian Societies" in a dialogue with students co-organized by the HKU Law Students Political Reform Concern Group and Law Association, HKUSU on 24 October 2014.

Sunday, November 2, 2014

New Article: Human Rights Lawyering in Chinese Courtrooms

"Human Rights Lawyering in Chinese Courtrooms"
Chinese Journal of Comparative Law
Vol. 2, Issue 2, October 2014, pp. 270-288
Fu Hualing
Abstract: Human rights lawyering in China can be categorized into three ideal types: moderate lawyering, critical lawyering and radical lawyering. Lawyers take corresponding political stance and use different strategies in their legal representation. This article uses three examples to illustrate the different types of lawyering and the degree to which the lawyers rely on law in the legal battles. In particular, this article examines the different type of interaction between lawyers and judges: 1) a moderate type in which lawyers rely on law to make a confined and technical legal argument strictly within the boundaries of law; 2) a critical type in which lawyers use law proactively and strategically to influence public opinions and the political process so as to shape judicial decisions to a particular direction; and 3) a radical type in which lawyers challenge law and use the case to advocate a larger legal or policy change. The three cases are the defence of Xia Junfeng in his murder trial; the defence of Falun Gong practitioners who are charged with various criminal offences; and the legal support for labour activists in China who are punished for organizing industrial action.  Click here to read the full article.

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