Friday, December 26, 2014

Michael Tilbury Interview on Post-Obligations VII

World leading private law scholars and jurists met at the HKU Law Faculty in mid-July 2014 for the Obligations VII conference.  The event was co-organised by the  law schools of Hong Kong University and Melbourne University.  The co-convenors were Michael Tilbury (HKU) and Andrew Robertson (Melbourne).  In the interview below, Professor Tilbury reflects on what was achieved and briefs us on subsequent developments.  
Profs Robertson and Tilbury (L-R)
1. What were you hoping to achieve when you were planning Obligations VII?  By way of background to my answer, it is important to stress that the biennial Obligations conferences, which originated at the University of Melbourne in 2002, are the leading forums that bring together scholars, judges and practitioners from around the common law world to discuss issues in private law. Each conference is organised around a common theme, and speakers are asked to address this theme in their presentations.
     Against this background, the overall objective of the Obligations VII conference was to bring together leading authorities in the common law world who could address the identified theme of the conference, namely divergence and convergence in the common law of obligations.
     The theme starts from the premise that, although the common law has its origins in English law, its development outside England has been subject to local influences (for example, local statutory regimes, including human rights instruments, or even local values) that have led to divergences in the common law. The conference was aimed at identifying the reasons for, and evaluating the utility (or otherwise) of, such divergences.
     In planning the conference we were keen to see a logical development of the theme of the conference throughout its three full days, and to devise individual sessions that were linked, as far as possible, by common topics.
Prof Burrows
2. Do you think the Hong Kong conference achieved those objectives?  The conference certainly achieved its objectives. Indeed, the conveners of the conference have received many messages commenting on its intellectual depth, and its overall coherence.  Specifically, and relating this to the objectives of the conference that I have already outlined, I note the following.
     First, leading authorities from throughout the common law world (both from the academy and from the judiciary), presented papers at, and generally participated in, the conference. The papers engaged the theme of the conference at sophisticated, often ground-breaking, levels, taking into account our current theoretical understandings of the common law of obligations and the practical and societal contexts of those understandings.
Prof Stevens
     Secondly, the conference theme was progressively developed throughout the conference both in plenary sessions and in the parallel sessions broadly classified into tort, contract, unjust enrichment and equity. For example, the plenary session on the first full day began with Professor Andrew Burrows addressing the general influence on the English law of obligations of leading Commonwealth authorities, and ended, on the final day, with Professor Robert Stevens (addressing the conference by video-link from Oxford) discussing the approach to particular aspects of remedies in two leading English and Australian cases. 
Fok PJ, Ma CJ, Ribeiro PJ (L-R)
3. What were some of the main highlights from the Hong Kong conference?  Undoubtedly, the major highlight was the intellectual engagement of the papers with the conference theme. Of course, beyond this, the answer runs the risk of being subjective, depending on the papers that had special personal appeal. 
     However, I think it is not unfair to single out the contributions of our plenary speakers to our understanding of divergence and convergence in the common law of obligations. I have already mentioned the papers of Professors Burrows and Stevens, both from Oxford. Justice Robert Ribeiro of the Hong Kong Court of Final Appeal spoke at the opening plenary session of the conference. His Lordship gave the conference a distinctly Hong Kong ‘feel’ by speaking about a decision of the Hong Kong Court of Final Appeal on defamation on the internet, comparing the decision to those in other common law jurisdictions. 
Dean Hor and Prof Worthington
      Sir Anthony Mason, also of the Hong Kong Court of Final Appeal and formerly Chief Justice of Australia, spoke about the influence of statute law on common law development. Professor Sarah Worthington from Cambridge addressed the issue of the extent to which party autonomy is essential to common law doctrine. Dame Sian Elias, the Chief Justice of New Zealand, spoke about public acts and private obligations. Unfortunately Professor Paul Finn, formerly of the Federal Court of Australia, was unable to attend the conference. 
Prof Smith, Sir Anthony Mason, Elias CJ
However, his written paper, which traced the emergence of diversities from English law particularly in Canada, Australia and New Zealand, formed the subject of a spirited plenary panel session, in which Professor Stephen Smith commented from a Canadian perspective; Sir Anthony Mason from an Australian perspective; Dame Sian Elias from a New Zealand perspective; Professor Anselmo Reyes from a Hong Kong perspective; and Professor Andrew Burrows from an English perspective.

Group photo before dinner cruise
     The other highlight of the conference that must be mentioned was its outstanding organisation, attributable to the quiet determination of the organising team at HKU, led by Priscilla Wong. The organising team ensured that everything ran to clockwork, including the widely enjoyed cruise dinner on Victoria Harbour and the conference dinner at the Bankers’ Club.
4. Will the papers from the conference be published?     Yes, Hart Publishing will publish two volumes of essays from the Conference in 2015. The first will be entitled The Common Law of Obligations: Divergence and Unity and the second Divergences in Common Law. The volumes will be stand-alone works, the first focusing on general topics relating to the conference theme, the second on particular divergences in contract, tort, unjust enrichment and equity. Update: The two books were published in January 2016.  Click here for more information.
5. What can you tell us about Obligations VIII?     Obligations VIII will be held at the University of Cambridge from 19-22 July 2016. The theme of the conference will be ‘Revolutions in Private Law’.  More photos from Obligations VII can be found here

Thursday, December 25, 2014

Albert Chen on Ideas for Post-Occupy Political Reform

After the National People's Congress’s important decision regarding political reform in Hong Kong on August 31, 2014 ("August 31 Decision"), according to the “five-step procedure” set out in the Standing Committee of National People's Congress's interpretation of the Basic Law in 2004, the next step is for the Hong Kong SAR Government to draft and submit a specific political reform proposal to the Legislative Council. The HKSAR Government has indicated that it will soon commence the second round of consultation on the details of the political reform proposal to gather opinion of the Hong Kong community on the specifics of the universal suffrage of Chief Executive in 2017. However, political parties and legislators of the pan-democratic camp of Hong Kong have expressed their opposition to the framework set out by the August 31 Decision regarding the universal suffrage of Chief Executive. They claim that they will not participate in the second round of consultation on political reform, and will veto the Government’s reform package in the Legislative Council. On the other hand, while the Occupy Movement protests that began late September were all cleared by December 15, social fragmentation remains serious.
     In such context, the political and social environment in Hong Kong is at its most difficult time since its reunification with the motherland. Hong Kong’s path ahead, including that of the political reform, requires our joint effort to find the way out. Now, the second round of consultation on political reform is one of the major problems we face. The pan-democrats are dissatisfied with the August 31 Decision mainly due to its framework regarding the nominating procedures of Chief Executive candidates, They believe that the Decision fails to comply with the “international standard” of democratic elections, and is not “genuine universal suffrage" . More specifically, the “pan-democrats" believe that under the nomination framework prescribed by the August 31 Decision, the Central Government will manipulate the selection of the two to three nominees who will ultimately be successfully nominated, resulting in the lack of genuine choice for Hong Kong voters during the general election.
     During the second round consultation for political reform, I think that the Hong Kong SAR Government should encourage community participation in formulating a specific nomination and universal suffrage proposal that is both consistent with the August 31 Decision and has the support of the vast majority of Hong Kong people. On one hand, the proposal should be able to ensure that the final candidate is "patriotic" in order to avoid a constitutional crisis arising from the Central Government’s refusal to appoint an elected Chief Executive candidate who is deemed confrontational to the Central Government. On the other hand, this proposal should be sufficiently open and democratic to show that the Central Government has no intention to manipulate the selection of the two to three nominees who secure official candidacy. 
     More specifically, the following issues deserve attention in the second round of consultation:
(1) In designing the Nominating Committee with reference to the existing Election Committee, whether and how to adjust and optimise the existing thirty-eight "sub-sectors" in order to strengthen their representation and to expand the electoral base;
(2) In determining candidacy, whether to adopt the "two-stage" nomination process. The first stage adopts the existing nominating arrangements of the Election Committee for the CE, and each nominee will be jointly recommended by 150 members of the 1200-member Nominating Committee. In the second stage, the official “candidates” will be selected through voting by all members of the Nomination Committee;
(3) If the "two-stage" nomination process mentioned above is adopted, whether and how to make arrangements to gather public opinion (on whether the "nominees" should become an official "candidate") for reference of the Nominating Committee;
(4) If the number of "nominees" produced by the first stage does not exceed three (for example, it is three), whether it is possible to consider the “list voting system” recommended by the "thirteen scholars", under which the Nominating Committee will have a one-off vote on the list that includes the three nominees. If none of the three is a person who is considered confrontational towards the Central Government (i.e. does not meet the "patriotic” standard), then the list of three nominees should become official candidates by a majority vote on the entire list (if the list was voted down, then other voting arrangements may be adopted to select at least two candidates who secure the majority support of the Nominating Committee);
(5) At the stage of universal suffrage, whether to adopt the approach of “let the public keep the tailgate” as proposed by the "eighteen scholars”, Professor Simon Young and others. It may entail that any candidates to be successfully elected must secure a majority (or a prescribed proportion of) support among all votes casted (including both blank votes (votes of abstention) and votes in support of a particular candidate) in the first or second round of voting. 
     In addition to the above model, an alternative model of “let the public keep the tailgate” might be as follows. Following the practice in some countries, the ballot form would include, in addition to the names of the candidates, one option called “None of the Above” (NOTA). If the NOTA votes exceed 50% of the number of voters who vote in the election, the election will be voided. (Otherwise, i.e. if more than 50% of the voters vote for the candidates nominated by the nominating committee, this implies that the majority of the voters accept the nomination procedure as prescribed by the NPCSC.) The nominating committee will then act as an election committee and elect a provisional CE in accordance with the present electoral arrangement for the CE. The provisional CE will have a term of office of, say, two years, during which a fresh election for the CE (by universal suffrage) will be held. This model will mean that instead of the pan-democrats vetoing the political reform proposal and choosing the status quo (原地踏步) on behalf of all the people of HK, it will be the people (voters) of HK who decide (by a majority vote at the next CE election) whether to have an election in accordance with the nomination procedure prescribed by the NPCSC (or to have a provisional CE elected according to the status quo (原地踏步) system). In this scenario, the number of voters who vote NOTA is likely to include (a) those who have already made up their mind now that the NPCSC model is unacceptable, and (b) those who consider at the time of the election that the nominating committee has not done a good job and no candidate nominated by it is worth voting for. The number of people in category (b) is likely to depend on the “performance” of the nominating committee.
     In conclusion, I think the most desirable operation of the system is such that during the first stage of nomination (i.e. stage of selecting nominees), two “pro-establishment” nominees and a “pan-democratic” nominee are produced, all of whom the majority of Nominating Committee members are willing to support, because they are all considered “patriotic” instead of being confrontational by the Central Government. The aforementioned list of three nominees will thus be adopted by the Nominating Committee by majority vote in one go, which allows them to qualify as official candidates. At the stage of general election by public, one of the three candidates receive majority support among all votes casted (including blank votes). So elected, he or she will be appointed by the Central Government as Chief Executive. 
     Of course, the above only illustrates the ideal scenario. In order to cope with other potential circumstances that may arise, the reform package formulated during the second stage of consultation needs to encompass relevant rules to ensure that universal suffrage can elect a Chief Executive who enjoys the support and trust of both the Central Government and the Hong Kong general public.  Written by Albert Chen, Chan Professor of Constitutional Law, with Jackie Lai assisting with the translation.  Professor Chan was recently interviewed on Cable TV on these views.  See also the original Chinese text on which this post is based published in Orange News on 16 December 2014.

Tuesday, December 23, 2014

Top 5 Criminal Law Decisions (Hong Kong) of 2014

As we round out the year, I’d like to reflect on what in my view are the five most important criminal law decisions from our higher courts in 2014. At number five is HKSAR v Krieger, a case of alleged bribery of Macau’s Ao Man Long, in which the defendants were acquitted in the Court of Appeal and the prosecution was denied leave to appeal further. This case held that it is not a criminal offence to form plans in Hong Kong to bribe an overseas official. It exposed another loophole in our bribery laws, taking us further away from compliance with our international obligations. 
     At number four is HKSAR v Singh Gursewak, a recent decision of the Court of Appeal, in which a man charged with theft and fraud was tried in absentia (in his absence) in the District Court and convicted. In allowing the defendant’s appeal, the court reminded us of a basic common law principle that trials in absentia are “rare and exceptional…particularly if the defendant is unrepresented”. It was not enough that the unrepresented defendant had “deliberately breached their bail conditions and had absconded”. 
     At number three is HKSAR v Tso Kin Shing, another decision of the Court of Appeal, which illustrates how a defendant, without legal representation, can be severely disadvantaged. The defendant was convicted of serious sexual offences and sentenced to eight years imprisonment. In the jury trial, the admissibility of a confession statement was not tested even though police abuse was alleged, the defendant’s closing speech was “cut short”, while the senior prosecuting counsel made a closing speech when he was not entitled to. The trial was found to be unfair and the appeal was allowed.  Leave to appeal to the Court of Final Appeal was denied
     At number two is the Court of Final Appeal’s decision in HKSAR v Pang Hung Fai, which narrowed the ambit of the money laundering offence. In deciding whether a defendant had grounds to believe property he dealt with represented the proceeds of an indictable offence, the test is now whether anyone looking at the grounds objectively would (not could) so believe taking into account the defendant’s knowledge, beliefs, perceptions and evaluations. The court acquitted the defendant and said that the new approach had “a strong element of moral blame”. 
     To top the list is the case of HKSAR v Hon Ming Kong, not for what the case said about the law, but for what former Vice-President of the Court of Appeal, Mr Justice Frank Stock said in his 31 paragraphs of preamble, in which he chastised the lawyers for delay and the “extraordinary” waste of public funds and expressed the “urgent need” for criminal justice reform. A change from the “adjournment culture” that has developed was “long overdue”. He reminded lawyers of their “professional duty…to ensure that the wheels of justice run smoothly”, a duty “not at all at odds with their duty to the client”. 
     It is remarkable to see that there are still unrepresented defendants being tried on serious charges and that none of these five cases involved constitutional points. We might ponder over Christmas turkey whether constitutional rights litigation in Hong Kong criminal cases is now dead.  Written by Simon NM Young.  An edited version of this article was published in the South China Morning Post on 23 December 2014.

Saturday, December 20, 2014

New Publications by Melissa Loja (PhD candidate and Sohmen Scholar)

"Who Owns the Oil that Traverses a Boundary on the Continental Shelf in an Enclosed Sea? Seeking Answers in Natural Law through Grotius and Selden"
Leiden Journal of International Law
Vol. 27, Issue 4, December 2014, pp 893-911
Abstract: The principle of sovereign rights under UNCLOS countenances competition among littoral states for ownership of a common oil deposit through the unilateral exploitation of their continental shelf. This leads to conflict, wastage, and resource sterilization. However, rather than apply the principle of sovereign rights, states seem to turn to natural law principles as a more reasonable regulation of their activities on the continental shelf. Two sources of natural law principles are relevant. One source consists of a priori principles of sociableness and necessity which prescribe that, for their own preservation, states ought to act pursuant to the common good. These principles underlie energy security policies which espouse interdependence. Another source of natural law principles are international agreements and national laws in which states temper their sovereign rights and interests and recognize the co-existence of the rights and interests of other states in a common deposit. These practices constitute a posteriori intervenient or secondary law of nations, which appears similar to customary law. Adherence is not dictated by conviction that these principles are obligatory. Rather, adherence seems to be based on discernment that, while permissible under the principle of sovereign rights, unilateral appropriation is impermissible under natural law.  Click here to read the full article.
Journal of Energy & Natural Resources Law
Vol. 32, No. 4, November 2014, pp 483-508
Abstract: This article examines the petroleum regimes of China, the Philippines and Vietnam to ascertain whether they countenance the rule of capture in the South China Sea. It concludes that the policy and practice of Vietnam clearly and absolutely do not countenance the application of the rule of capture in regard to potential or actual transboundary petroleum deposits in the South China Sea. On the other hand, China has maintained a 1996 secrecy regulation, which authorises China National Offshore Oil Corporation (CNOOC) to undertake unilateral activities involving transboundary deposits in disputed areas of the South China Sea. At the same time, China has adopted bilateral declarations and agreements that preclude the application of the rule of capture in both delimited and undelimited areas of the South China Sea. As for Philippine policy and practice, there is ambivalence towards the potential or actual presence of transboundary deposits.  Melissa H Loja is a PhD candidate supervised by Dr. James Fry.

Friday, December 19, 2014

Carty & Zhang on Unequal Treaties

"Unequal to Equal Treaty: From the Anglo-Irish Treaty 1921 to the Belfast Agreement (Good Friday Agreement) 1998 - A Chinese Perspective" 
Vol. 7, December 2014, pp 1-56
Introduction (excerpt): ...[I]n the view of the present authors it is not useful to consider the Northern Ireland situation exclusively in the context of western dominated and, even more so, western European law regulated international relations. In the European context, this perspective will inevitably lead to an ahistorical view of “the conflict” in Northern Ireland as an “ethnic conflict” amenable to sociological description but not to normative evaluation. However, the perspective preferred here is the longevity of a hundred years old historical conflict, intelligible in terms of historical imagination and empathy, but, of course, not necessarily resolvable in these terms. Historically, Northern Ireland is a leftover of the imperialism of a global empire, the British Empire, and it can only be understood, if at all, also as an evolution of legal standards in a global context. There are probably an infinite variety of global contexts with which it can be compared, e.g. Cyprus, Palestine, Afghanistan, but the one chosen here is Hong Kong...
     It is not possible in the space of one article to cover meticulously every detail of the parallel developments of the relationships. Obviously comparison is made easier by the common denominator of the changing character of the UK. Indeed, there are striking resemblances of detail. For instance, as already mentioned, the Irish in 1921 were aware of and made comparisons with the UK draft Treaty and treaties already concluded with China, and Judge Feetham turns up on both scenes as an “expert” member of Commissions relating to treaties with both China and Ireland. The negotiations of the Naval Treaties are equally easily comparable and almost contemporaneous. However, what is fundamental to the comparison – whether the longevity of the relationship or its eventual relatively successful conclusion – is the framework of analysis which we offer... 
     By way of this introduction to illustrate the personal, material dimension of “legal subject-hood”, we will select a number of issues of treaty relations and their breakdown, from both the Chinese and Irish experiences. In the interests of portraying the longevity of the relationships, there will be inevitably some superficiality in the treatment of the immense resource of materials. Our analysis will represent work in progress. The crucial analytical point to retain in the two histories that will follow – the Chinese much shorter than the Irish and intended as illustrative of a tradition which is already very used to thinking in terms of unequal treaties – is the interplay between the legitimacy force attaching to relations of esteem and the legality force attaching to “pure legal forms”. Our analysis gives priority to the former. It may be the case that at certain points in time, clearly binding, legal agreements were made by both Ireland and China. China never renounced its treaties with the UK, even in 1984. Ireland not only ratified the 1921 Anglo-Irish Treaty and the 1925 Boundary Treaty, it proudly deposited them with the League of Nations, to evidence its treaty-making capacity, as a mark of full state sovereignty. However, neither country was prepared to accept the status quo of these legal relations. Because the relations were seen to be built on a lack of mutual respect and esteem, they were constantly destabilised by the insistent questioning of their legitimacy by the countries disputing them (for China – the system of extra-territoriality and the status of Hong Kong; for Ireland – the oath of allegiance, the “Treaty Ports”, the border and the status of the Northern minority). Since there is, in any case, no question of compulsory adjudication of treaty disputes, the effect of this endless contestation was that the treaties reflected and continued to reflect distortions and imbalances in the mutual relations, which would lead to breakdown. Arguably the delay in abolishing extra-territoriality contributed to the revolutionary break of China with the west in 1949 and the continuing festering of the “unequal treaties” issue. The unrest with which Ireland threatened the UK throughout the 1950s eventually materialised in 1969...

Thursday, December 18, 2014

New Book Chapter on Common Law Courts in China

"Hong Kong: Common Law Courts in China" (pp 183-227) in
Asian Courts in Context
Edited by Jiunn-rong Yeh and Wen-Chen Chang
Cambridge University Press, December 2014
Dr. P.Y. Lo
Abstract: Asian Courts in Context, edited by Professors Yeh Jiunn-rong and Chang Wen-chen of National Taiwan University, seeks to provide the most up-to-date and comprehensive studies of courts in a number of countries in Asia to show how they may differ from courts in the West and how they have been shaped by the current economic and political challenges facing Asia. This chapter on the HKSAR courts follow a format prescribed by the editors to facilitate the discussion of the following topics: judicial system (including the source of judicial power, the structure and organization of the courts and the size and performance of the courts), sources and influences of the establishment of the judicial system, judicial appointments, judicial independence and access to justice, sources of law and styles of judicial decisions, and alternative dispute resolution and the courts. This chapter concludes with an up-to-date analysis of the challenges facing the courts of the HKSAR, including those coming from the generational transition in the judicial corps and the assertion of the “one country” narrative in the understanding of the underlying “one country, two systems” principle of the Basic Law of the HKSAR, as to which the courts of the HKSAR have been granted the power to interpret, at least in relation to those provisions that are within the limits of Hong Kong’s autonomy. Pointing to Article 158 of the Basic Law, which deals with interpretation of the Basic Law, it is suggested in the end of the chapter that features of the HKSAR judicial system contributing to its strengths are likely to be the sources of its weaknesses. “The separation of the power of final adjudication from the power of final interpretation of the constitutional instrument makes the judicial autonomy of the courts of the HKSAR vulnerable, as this plenary power of the NPCSC has been exercised to deprive a judgment of the Court of Final Appeal precedential value. As Sir Anthony Mason pithily noted, the Rule of Law of Hong Kong, like its courts, lies in the shadow of a Giant.”  Dr. P.Y. Lo completed work on this chapter while serving as a Visiting Fellow of the Centre for Comparative and Public Law.

Wednesday, December 17, 2014

Whitfort Comments on China's Draft Wildlife Protection Law Amendments

This week the first draft revising China’s Law for the Protection of Wildlife was released. While this is an important step, the issue of enforcement will be critical. China has a very poor record on enforcing laws to protect endangered wild animals-very few people have gone to gaol in China for poaching endangered species. Since the introduction of the Wildlife Protection Law, 25 years ago, many endangered species have come much closer to extinction and only 10 species had been added to the list. 
     A major loophole in the old law is that it has only protected those endangered wild animals living in the wild. It does not protect endangered wild animals living in captivity (e.g. on breeding farms), many of which have been poached from the wild. The farms breeding endangered animals have long been disguising themselves as conservation centres, when they are in fact profiting from selling wild animals and their parts for food/medicine. The industry has been estimated to be worth 100 billion yuan annually.
     The law may also help curb the illegal smuggling trade, which China’s membership of CITES (Convention on International Trade in Endangered Species) has not satisfactorily been able to control. Hong Kong is the gateway to China and could do much more to address the problem of wildlife smuggling. A recent report by local think tank Civic Exchange found that between 40-70% of the global illegal trade in ivory is sourced for China and seizures in Hong Kong of illegal ivory bound for China establish that Hong Kong is a major smuggling route. The same report estimates Hong Kong as taking 50% of the legal and illegal global trade in shark fins and 70-80% of the legal and illegal regional live reef food fish trade (much of which is then re-exported to the mainland). 
     China’s new draft law is intended to ensure that both wild animals living in the wild and kept in captivity will benefit from protections from hunting and set standards for their living and breeding conditions. It is an important first step towards recognition in China that the welfare standard, and not just the economic value of wild animals is important enough to deserve legislative protection.  Written by Amanda Whitfort.  Whitfort presented her work on China's animal welfare laws at the II Global Animal Law Conference held in Barcelona in July 2014.  Her analysis of the proposed China cruelty to animals law was published in the Sydney Law Review in 2012.  Click here for news coverage on the new draft amendments.

Tuesday, December 16, 2014

Book Chapter on Simulated Learning in HKU's PCLL Programme

Edited by Caroline Strevens, Richard Grimes & Edward Phillips
Ashgate, December 2014
The Introduction by Richard Grimes describes the chapter in the following terms: Chapter 11 looks at the overtly vocational context of professional legal education in Hong Kong.  Chow suggests that when ranking learning experiences in terms of purposeful experience, a synonym of 'doing the real thing' occupies the most privileged position in that structure, followed by contrived experiences that are synonymous to simulations.  Both require the learner to apply principle to practice, either in real life or through simulated exercises.  This, he says, is echoed by a range of reports that together criticize legal education for typically paying limited attention to the needs of professional practice, resulting in habits of thinking like a student rather than an apprentice practitioner and conveying the impression that lawyers are more likely to be seen as scholars than legal practitioners engaged with the problems of client.  
     Chow notes that 2012 marked the fortieth anniversary of professional legal education in Hong Kong.  Prompted by a comprehensive review on legal education, the curriculum, in terms of content and delivery, underwent major reform in 2008, but a survey carried out a year later revealed that in general, students still encountered difficulties in making the transition from the undergraduate to the professional stage of study.  Specifically, students found it hard to practically apply the legal knowledge which they had learnt from their undergraduate studies to address and solve legal problems.  In Chow's view, they needed to undergo a change in mindset from studying the law to applying it in practice.  Hence, at one institution, in order to make the programme more akin to real-life legal practice, a team of teachers and supporting staff decided to pilot a model comprising two new approaches to learning and teaching: (a) the use of the Simulated Professional Learning Environment (SIMPLE), a transactional e-learning platform; and (b) the use of 'standardized clients' who the students could 'represent'.
     This chapter traces the evolution of a particular vocational programme: from a content-rich curriculum to one with increasing emphasis on transactional knowledge and lawyering skills; from the use of discrete hypotheticals to files adapted from real cases.  Chow then explains the circumstances leading to the pilot initiatives.  The chapter describes the objectives and expected outcomes of the pilot test, how it will run and what is being done.
    The chapter is particularly valuable in that it is able to take a look back at the reasons for change and to reflect not only on the impact of alternatives to methodologies but also how this has informed more recent developments.  Wilson Chow is currently the Head of the Department of Professional Legal Education in the Faculty of Law.

Monday, December 15, 2014

Davis on Post Occupy (SCMP 16 Dec 2014)

"Post Occupy, will the Government Speak for the Hong Kong People?"
South China Morning Post
16 December 2014
Michael Davis
Looking out at "Umbrella Square" the morning after the clearance, with cars humming by and workers scraping the last remnants of the yellow stickers off the adjoining government buildings, one may ask: how significant was this Occupy protest and, what next?  This was the place where the best of Hong Kong youth spoke truth to power and where they built a city on the paved highway. Last Thursday, power spoke back as the Hong Kong government hauled away our youthful leaders, several elected legislators, the father of our democracy movement and even a leading pro-democracy publisher.  The humming of the passing cars and the ordinariness of the now cleared streets may lull Hong Kong's leading officials into complacency, thinking they have solved the problem. They would be wrong.  Click here to read the full article.

New Article: Deconstructing the Religious Free Market

"Deconstructing the Religious Free Market"
Journal of Law, Religion and State
December 2014, Vol. 3, Issue 1, pp. 1-24
Abstract: Scholars have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. But given that the desirable normative interpretations of these two clauses differ widely, the nature of the resulting market is inevitably dependent on one’s choice of these contested interpretations. Similarly, the “entitlement to free competition” depends on the definition of “religion.” The present article deconstructs the religious free market into its legal components and discusses critically how the different interpretations and combinations of these legal components materially affect the resulting religious market.  Click here to download the article.

Sunday, December 14, 2014

New Issue of Hong Kong Law Journal (Part 3 of 2014)


Vol. 44, Part 3 of 2014

Table of Contents


Comment 
Realising Universal Suffrage in Hong Kong After the Standing Committee’s Decision  Simon NM Young  689 



Analysis
Gross Negligence Manslaughter After Lai Shui Yin  John Adams Leung and Hin Ting Liu  709 
Business Review in Directors’ Report: New Companies Ordinance Requirement  Stella So, Janet Kwan and Annie Ko  719 
Disclosure of Price Sensitive Information – The Peculiar Case of the MTR Corporation  Chee Keong Low and Tak Hay Low  735 

Lectures 
When Will the Court Grant Relief for Trustees’ Mistakes? Pitt v Holt and Futter v Futter  Robert Walker  759 
The Strengths of the Common Law  William Gummow  773 
Institutional Integrity and Public Law: An Address to the Judges of Hong Kong  James Spigelman  779 

Articles
Financial Planning for Mental Incapacity: Antiquated Law in a Modern Financial Centre  Lusina Ho  795 
Storm in a Milk Bottle: WTO Consistency of Hong Kong’s Export Barrier on Powdered Formula  Kelly Kuan Shang  809 

China Law 
Land Registration, Property Rights and Institutional Performance in China: Progress Achieved and Challenges Ahead  Lei Chen  841 
The Perpetual Dance: Interpreting “One Country, Two Systems” Through the Lens of Tongbian Dialectics  Jason Buhi  865 
The Logic (or Illogic) of China’s Local Government Debts Out of Control – Law, Governance or other Perspectives  Shen Wei  887 
Recidivist Thieves and Amnesties in Qing Law  Geoffrey MacCormack  917 

Book Reviews 
Introduction to the Hong Kong Basic Law, Danny Gittings, I Grenville Cross SC  961 
Practising Self-Government: A Comparative Study of Autonomous Regions, Yash Ghai and Sophia Woodman (eds), Shucheng Wang  965 
Comparative Perspectives on Criminal Justice in China, McConville M and Pils E (eds), Na Jiang  969

Click here to read the abstracts.

Saturday, December 13, 2014

HKU Research Awards in the Law Faculty 2013-2014

Congratulations to Shahla Ali who is the 2013-2014 award recipient of both the Outstanding Young Researcher Award and the Research Output Prize in the Faculty of Law, awarded by The University of Hong Kong.  The research output prize was for her book, Consumer Financial Dispute Resolution in a Comparative Context: Principles, Systems and Practice published by Cambridge University Press in 2013.  Dr. Ali previously won the research output prize in 2012 for her earlier book, Resolving Disputes in the Asia-Pacific Region published by Routledge in 2011.  Dr. Ali is currently Associate Professor, Deputy Head in the Department of Law, and Deputy Director of the LLM in Arbitration and Dispute Resolution.  All award recipients will be honoured at an award presentation ceremony to be held on 30 March 2015 at Loke Yew Hall, HKU.  UPDATE: Dr Ali's award ceremony video can be viewed here.

Friday, December 12, 2014

Cheng & Lin on the Electricity Sector in Hong Kong

"Introduction of Competition and Environmental Regulation in the Electricity Sector in Hong Kong"
2014, Vol. 37, Issue 4, pp. 569-600
World Competition
Thomas Cheng and Jolene Lin
Abstract: This article explores both the competition and the environmental aspects of the electricity sector in Hong Kong, and a possible linkage between them. There has been considerable public pressure to liberalize the electricity sector in Hong Kong due to longstanding discontent with the persistently high profit of the sector and a regulatory structure that is widely perceived to be ineffective. In light of the government's seeming reluctance to pursue liberalization, this article examines an alternative approach - litigation under the recently adopted Competition Ordinance. It assesses the likelihood of success of the strategy and its potential shortfalls. The article proceeds to analyse whether competition can be used as a tool to improve the environmental performance of the sector. It concludes that the effect of the introduction of competition is ambiguous if not adverse and therefore proactive regulatory intervention will be needed to ensure that environmental performance does not deteriorate following the introduction of competition. Competition will not be an effective tool to improve the environmental performance of the sector.  Click here to download full article.

Thursday, December 11, 2014

Dark Truth About Chocolate Production

"The dark truth about chocolate production"
South China Morning Post
10 December 2014
Brooke Zheng (LLMHR student)
Legions of chocolate consumers should exert pressure on producers to stop the exploitation of child farm workers
At this time of year especially, it's worth stopping to consider how your gift of chocolate is made. For all the pleasure the eating of this food brings, its production often means a life of misery for the children in West Africa who harvest the cocoa beans - an essential ingredient - in hazardous conditions.While cocoa is consumed mainly by people in developed countries, some 70 per cent of it is produced in Africa. And the world wants more: recently, the world's biggest chocolate companies warned of a chocolate deficit by 2020. With increasing demand for chocolate, more children will be pushed into the labour force on cocoa farms. According to a 2011 report, some 1.8 million children, aged from five to 17, were working on cocoa farms in Ivory Coast and Ghana. Many are forced to work long hours, applying chemicals without protective equipment. Their rights to education are also largely denied; around 40 per cent of the working children on Ivorian cocoa farms were not enrolled in school...  Click here to read the full article.  The article was based on work done in Farzana Aslam's Business and Human Rights course.

New Book: 5th Edition of A Guide to Civil Procedure in Hong Kong

A Guide to Civil Procedure in Hong Kong, 5th edition
LexixNexis
December 2014
Michael Wilkinson, Eric Cheung, Gary Meggitt
Description: The principal aim of this book is to provide practitioners with a clear and up to date exposition of the rules and judicial decisions governing the conduct of civil litigation in Hong Kong.  The Civil Justice Reform has now been effective for more than 5 years and there are many judicial decisions reflecting judicial approaches and attitudes to the implementation of the new rules. The jury is, however, still out as to whether the Reforms have significantly achieved their objectives.  The authors have chronicled these developments by reference to the considerable amount of case law on the new rules and practice directions. The fifth edition includes the most significant new cases affecting both the new rules and rules unaffected by the Reforms. In fact, there is a considerable body of important decisions continuously emanating from the courts which renders the task of the civil litigation practitioner ever more demanding.

Wednesday, December 10, 2014

New CCPL Occasional Paper: Drafting Ethics-Related Laws

"Evidence-Based Law: Using Data to Design and Implement Ethics-Related Administrative Law"
CCPL Occasional Paper No. 27
December 2014
Bryane Michael, Indira Carr & Donald Bowser
Abstract: The prosecution of high profile multi-national corporations (MNCs) over the past decade for bribery of public officials acting in their official capacity has raised the need for drafting ethics-related administrative law. So, how should countries draft ethics-related administrative law? Should such law be driven purely by normative ethics based on how one ought to act? Or, should we take into account empirical data in drafting ethics-related administrative law? A related question is who should oversee these ethics-related laws? This paper discusses the role of empirical data in deciding which provisions to include in ethics-related law and when deciding on the division of competencies between agency directors, ethics officers, human resource directors, internal auditors and others. We describe how to draft subsidiary legislation (mainly executive agency regulations) based on explicit or implied competencies given by national legislation. We then discuss how to conduct the organisational, legal, economic and audit analysis needed to allocate ethics-related rights and obligations across-government and within the Agency.  This paper serves as a lone counter-weight to the principles-based approaches flooding the literature.  We illustrate our discussion largely using examples from Romania and Hungary.  Click here to download the full paper.

Monday, December 8, 2014

CCPL's Myanmar Rule of Law Workshop (1-5 Dec 14)

The Centre for Comparative and Public Law held a week-long Myanmar Rule of Law Workshop from 1 to 5 December 2014 at the Faculty of Law, The University of Hong Kong.  The workshop was co-sponsored by The Maureen and Mike Mansfield Foundation and was the third rule of law collaboration with CCPL in recent years.  The main CCPL organisers were Farzana Aslam, Kelley Loper and Lindsay Ernst. 

Prof Ian Holliday
The participants were a small group of young professionals working on rebuilding the rule of law in Myanmar.  The five-day intensive workshop consisted of seminars and lectures given by legal academics, lawyers and judges, together with site visits to important rule of law institutions, including the offices of the Independent Commission Against Corruption and the Equal Opportunities Commission.  

Panel on Independence of the Judiciary
Highlights from the workshop included a public lecture on the rule of law and development by Mr. Robert Pe, a panel on independence of the judiciary featuring Judge Frank Stock NPJ, Justice Queeny Au-yeung and former Justice Anselmo Reyes, a public lecture on the political context of rule of law by Mr. Frank Januzzi, and a public seminar by Professor Ian Holliday.


Sunday, December 7, 2014

Tai's Q&A with Straits Times on Occupy Central

The Straits Times
7 December 2014, Interview conducted by Li Xueying
It started with a newspaper column on Jan 16, 2013. In it, law academic Benny Tai mooted the idea of an Occupy sit-in to pressure Beijing and the Hong Kong government to give Hong Kong greater democracy. Nearly two years on, two days after he surrendered to the police for his role in the Occupy movement, Dr Tai speaks to The Straits Times on what he has achieved, his regrets and his darkest moments.
Q: You surrendered to the police two days ago. How are you feeling?
A: A sense of release. And relief. We have completed the process. It's possible that the police will pick us up after the occupation ends, and decide whether it is in public interest whether or not to prosecute us. It depends on whether the Chinese government decides on what to do, how to deal with this new generation of Hong Kongers, whether taking such a stern stance will be helpful, or whether some kind of concession needs to be made to rebuild relationship with the new generation.  Click here to read the full interview.

Saturday, December 6, 2014

Consumer Council's Electricity Market Study

Hong Kong's Consumer Council recently published its 170-page report on the electricity market, which for many years has been controlled by two power companies: CLP Power Hong Kong Ltd and Hongkong Electric Company Ltd.  The study found that the existing method of regulation had served Hong Kong well providing reliable and affordable supplies of electricity.   But the status quo may not be flexible enough to adapt to the new environmental policy supporting emission reduction over the next 30 years.  The report finds a need to reform the current system but advocates an incremental approach.  Liberalisation of the market should be directed towards natural gas and renewable alternatives rather than to retail competition.  One of the more concrete recommendations was for the Hong Kong Government to "establish a full-fledged energy sector regulator which needs to have the 'critical mass' to perform in relation to the structure and size of the industry, and the principles of transparency and consumer representation should be upheld."  Thomas Cheng, Chairman of the Council's Competition Policy Committee, and Kelvin Kwok, were members of the Council's working group in charge of the study.  Cheng was quoted as stating "It is our sincere hope that the study, from consumer perspective, will provide an important and comprehensive collective set of views to stimulate a structure discussion to advise the Government on the most suitable way forward."  Click the relevant link to download the full report, executive summary, press release or presentation slides.  To listen to Cheng's interview on RTHK's Backchat on 8 December 2014, click here.

Friday, December 5, 2014

Tai: What Next for Hong Kong?

"What Next for Hong Kong?"
International New York Times
4 December 2014
Benny Tai
The peaceful protesters occupying the streets of Hong Kong for more than two months have been surprisingly persistent in their pursuit of genuine universal suffrage. It is welcome news that some student leaders are considering bringing the occupation to an end. They are exhausted and have been unwilling to go home without substantial concessions from the Hong Kong and Beijing governments...The Umbrella Generation must regroup and devise a new strategy for winning the support from those Hong Kongers who are still undecided about our democratic future...Blocking government may be even more powerful than blocking roads. Refusal to pay taxes, delaying rent payments by tenants in public housing estates and filibustering in the Legislative Council, along with other such acts of noncooperation, could make governing more inconvenient. No government can govern effectively if the majority of its people are unwilling to cooperate....A more serious crisis will break out in the future if the source of the problem is not dealt with properly and adequately. And the next outbreak will be fiercer.... Click here to read the full article.

HK's Rhodes Scholar 2015 from our Faculty of Law

Congratulations to Geoffrey Yeung (LLB, BBA(Law) 2014; PCLL 2015) who was selected as the 2015 Rhodes Scholar from Hong Kong.  He will join 82 other Rhodes Scholar from around the world and is the only one currently studying at an university in China.  The Rhodes Scholarship website reports that Geoffrey "aspires to become a human rights lawyer in Hong Kong, to advance civil rights and liberties, as well as to continue to stand with various disadvantaged and marginalised groups in making their voices heard in society".  The Apple Daily reported that he impressed the selection committee with his energy and personal commitment to working with disadvantaged members of society, as well as his exceptional academic results.  Geoffrey was a member of the Centre for Comparative and Public Law research teams led by Professor Simon Young that completed research consultancy projects for the Independent Commission Against Corruption's Centre of Anti-Corruption Studies and the Constitutional and Mainland Affairs Bureau.  Geoffrey will complete his BCL at Oxford.  In a short note to us, he writes, "whatever I get from my experience at Oxford, I will give it back to society in any way I can."

Wednesday, December 3, 2014

New Issue: SSRN Legal Studies Research Paper Series

Table of Contents

1.What Role Can an International Financial Centre's Law Play in the Development of a Sunrise Industry? The Case of Hong Kong and Solar Powered Investments
Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford, Columbia Law School - Centre for the Advancement of Public Integrity
Simon X. Zhao, University of Hong Kong - Department of Geography
Dariusz Wojcik, University of Oxford, St. Peter's College

2. The Law and Politics of Constitutional Reform and Democratization in Hong Kong
Albert H. Y. Chen, University of Hong Kong - Faculty of Law, University of Hong Kong - Faculty of Law

3. The Keeneye Case: Rethinking the Content of Public Policy in Cross-Border Arbitration between Hong Kong and Mainland China
Weixia Gu, University of Hong Kong - Faculty of Law
Xianchu Zhang, University of Hong Kong - Faculty of Law

4. 15 Years of the Handover: The Rise, Discontent, and Positive Interaction of Cross-Border Arbitration in Hong Kong with Mainland China
Weixia Gu, University of Hong Kong - Faculty of Law

5. The Judiciary in Economic and Political Transformation: Quo Vadis Chinese Courts?
Weixia Gu, University of Hong Kong - Faculty of Law

6. Realising Universal Suffrage in Hong Kong after the Standing Committee's Decision
Simon N. M. Young, Faculty of Law, University of Hong Kong

Tuesday, December 2, 2014

Davis: HK Government Must Face Up to Human Rights Responsibilities

Hiding behind court orders and power of police won't make calls for universal suffrage go away
South China Morning Post
2 December 2014
As court orders, followed by more aggressive police tactics, seek to clear the streets in Mong Kok and Admiralty, the non-violent civil disobedience campaign in Hong Kong has reached a climax.  For two months, the protesters have impressed the world with their peaceful sit-ins. Allegations that they are undermining the rule of law have met with scepticism.  In this moment of difficulty, we should not lose sight of the fact that primary responsibility for maintaining the rule of law rests with the government. The administration cannot simply hide behind civil court orders and police powers in exercising its responsibility. How it tackles the many problems with the underlying reform process will be crucial.  Click here to read the full article.
Professor Davis also wrote a short piece on "Assessing the 'Umbrella Movement' in Hong Kong" for the University of Nottingham's China Policy Institute Blog on 1 December 2014.  He argues that it is "facile" to believe the Occupy protests have achieved nothing.  Going forwards the regional and central governments need public support to govern, and "only the Hong Kong Government is in a position to restore confidence in governance".

Monday, December 1, 2014

Towards an International Piracy Tribunal

Vol. 22, Issue 3, October 2014
Introduction: The number of pirates from Somalia acting in and around the Arabian Sea and Arab Gulf seems to have grown exponentially in recent years, catching numerous headlines and the world's attention in the process.  Although naval powers have devoted substantial energy and resources to conducting various enforcement missions, little has been done to prosecute their captured pirates.  At present, the capturing powers usually either release pirates shortly after they are captured or 'dump' them for trial at a developing African country.  This practice hardly can be said to provide an effective deterrence to piracy.  To aid in deterring these pirates through proper prosecution, the establishment of an international judicial organisation in the region - perhaps in Qatar - that focuses specifically on these types of crimes and criminals might be helpful in terms of convenience and legitimacy.  This article is the first to explore this possibility from a legal perspective...

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