Wednesday, September 30, 2015

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

Vol. 5, No. 8: 28 September 2015
Table of Contents
1. Role of the Criminal Law in Maintaining Hong Kong as an International Financial Centre
Simon N. M. Young, The University of Hong Kong - Faculty of Law

2. Problems of Judicial Recognition and Enforcement in Cross-Border Insolvency Matters between Hong Kong and Mainland China
Emily Lee, The University of Hong Kong - Faculty of Law

3. Sentencing
Simon N. M. Young, The University of Hong Kong - Faculty of Law

4. Judicial Review of Elections in Hong Kong: Resolving a Contradiction
Simon N. M. Young, The University of Hong Kong - Faculty of Law

5. Rethinking the Process of Political Reform in Hong Kong
Simon N. M. Young, The University of Hong Kong - Faculty of Law

6. Mediation in China: Towards a Modernised and Harmonised Framework for International Commercial Mediation
A. K. C. Koo, The University of Hong Kong - Faculty of Law

7. Ten Years after Halsey
A. K. C. Koo, The University of Hong Kong - Faculty of Law

8. Human Rights, the Rule of Law and Democracy: Recent Experience of Hong Kong and China
Johannes M M Chan, The University of Hong Kong - Faculty of Law

Monday, September 28, 2015

Albert Chen on the ABCs of Hong Kong's Political System

"Hong Kong’s Political System ABC – Starting from the Recent Dispute"
A speech given by Zhao Xiaoming, director of the Liaison Office of the Central People’s Government in Hong Kong, in a symposium on 12 September to mark the 25th anniversary of the Basic Law has caused great controversy. The title of the speech was “Understand the Features of Hong Kong Political System Correctly”.

Question: What do you think about the dispute over Zhang’s speech?
Answer: I think the dispute is mainly about wording or expression, but not substantial legal issues. That is, what phrases or concepts should be used to describe or characterize the political system of Hong Kong (HK). The dispute itself is not of much practical significance. It will not affect or alter the actual operation of powers in Hong Kong’s political system.

Question: What is the main theme or central idea of Zhang’s speech?
Answer: This is a very good question. After Zhang made his speech, the media has focused on his point that the Chief Executive (CE) enjoys a “transcendent” legal status which is beyond the executive, judiciary and legislature. In fact, this is not the central idea of his speech. The media has not paid attention to his main argument. We can read the published version of his full speech, which is clear in structure. Zhang firstly pointed out his main argument, then explained it further in four respects. His main point is in this sentence: “I reckon, one can more completely describe the political system of Hong Kong as follows: the political system of HK is a system that comes directly under the Central Government, and is executive-led and Chief Executive centered; the executive and the legislature check and balance against and also cooperate with each other, and the judiciary is independent.”
      This sentence should be uncontroversial. Article 12 of the Basic Law mentions that the HKSAR “comes directly under the Central Government.” Ji Pengfei, Chairman of the Basic Law Drafting Committee, in his explanation to the National People’s Congress in 1990 when the draft Basic Law was under consideration, mentioned checks and balance as well as cooperation between the executive and legislature, and the independence of the judiciary. As for “executive-led” government, it is a feature emphasized by Mainland Chinese scholars and officials discussing the HK political system since the 1990s.

Question: Why then would Zhang’s speech cause such a great controversy?
Answer: The major reason is that when he further explained his main argument in the four subsequent aspects, the second aspect included these sentences: “Because of his status as ‘Dual-Heads’ and his ‘Dual-Responsibilities’, the Chief Executive has a special legal status that transcends the executive, legislature and judiciary. The CE lies at the heart of the operation of powers of the HKSAR, and serves the function of a nexus below the Central Government and above the three powers of the HKSAR.”

Question: What are the meanings of “Dual-Heads” and “Dual-Responsibilities”?
Answer: This is a complicated legal matter, which is related to Article 43 and the Article 60 of the Basic Law. Article 43 provides that “The Chief Executive of the Hong Kong Special Administrative Region shall be the head of the Hong Kong Special Administrative Region and shall represent the Region. The Chief Executive of the Hong Kong Special Administrative Region shall be accountable to the Central People's Government and the Hong Kong Special Administrative Region in accordance with the provisions of this Law.” Article 60 further stipulates that “The head of the Government of the Hong Kong Special Administrative Region shall be the Chief Executive of the Region.” (As to the term “Government” mentioned in the Article 60, it is defined in Article 59 that “The Government of the Hong Kong Special Administrative Region shall be the executive authorities of the Region.”) Thus, “Dual-Heads” refers to the CE’s dual status as the Head of the executive authorities and the Head of HKSAR as a whole when representing the region. For example, the CE reports to Beijing as the Head of the HKSAR, and represents “Hong Kong, China” at APEC meetings. “Dual-responsibilities” means the CE is accountable to both the Central Government and to HK people.

Question: In this case, does the position of the CE transcend or stand above the executive, legislature and judiciary? 
Answer: This is a matter of wording or expression, rather than a substantive problem. Since it is too abstract, it is of little practical significance. As mentioned above, according to the Basic Law, the CE is not only the Head of the executive authorities of the HKSAR, but also the Head of the HKSAR. From the perspective of the Central Government, the CE is elected in HK and appointed by the Central Government, and the CE has the role of representing HK. Zhang described this situation as the CE having “a special legal status that transcends the executive, legislature and judiciary”. As to the expression of “above the three powers of the HKSAR”, we should pay attention to its context in the full sentence, which is “the CE serves the function of a nexus below the Central Government and above the three powers of the HKSAR.” The focal point of this sentence is the CE’s function as a nexus between the Central Government and the three powers of the region, which is about communication and being a bridge, and not about the CE standing high above the three powers. Under the Basic Law, the CE enjoys certain powers, but he is also bound by the Basic Law and other laws of HK. The Basic Law does not grant any immunity or exemption to the CE in civil or criminal matters. “All Hong Kong residents shall be equal before the law”, says Article 25; “Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in force in the Hong Kong Special Administrative Region”, Article 42 so provides. All these provisions apply to the CE. 

Question: Zhang mentioned in his speech that “the political system of Hong Kong does not practice the separation of three powers”. Is HK practicing the separation of three powers?
Answer: Although Zhang stated that HK is not practicing the separation of the three powers, his speech includes two other passages: ‘Given the nature and features of this regional political system, and given the existence of the central authority’s power besides those of the executive, legislature and judiciary of the SAR, the political system of the usual separation of powers among three branches, which is often established on the basis of a full mode of power of a sovereign state, is at most only of referencing and consulting value to the HKSAR, but not completely applicable to the HKSAR’; and ‘one should not simplistically believe that so long executive, legislative and judicial organs are separately established and there exist checks and balances among them, then a political system practicing separation of three powers exists.’ 
      Therefore, Zhang does not agree to describe or characterize the political system of Hong Kong by using “separation of three powers” mainly because HK’s political system is a local or regional political system rather than the “full mode of power of a sovereign state”. Yet at the same time he agrees that the principle of separation of three powers may be of “referencing and consulting value” to HK at the same time. I mention above that Zhang’s main point in his speech was to describe the characteristics of the political system of the HKSAR, which in his view includes “checks and balances as well as cooperation between the executive and legislature, and the independence of the judiciary.” To HK’s legal profession and the judiciary, these features already count as “separation of powers”. A search on this English term on the HK Judiciary website shows it is mentioned in more than 70 cases decided by different levels of courts in HK. The court judgment in every one of these cases mentions the principle of “separation of powers” affirmatively.
     Written by Albert Chen and translated by Bella Liu.  The original Chinese version of this article was published in Orange News on 17 September 2015.

Sunday, September 27, 2015

Regulation of Digital Financial Services in China (Zhou, Arner & Buckley)

Weihuan Zhou, Douglas Arner and Ross Buckley
SSRN Working Paper Series (Abstract 2660050)
Abstract: Since 1979, China has made tremendous progress in its transformation to a socialist market economy. As part of this process, China’s financial system has evolved to one characterised by a high degree of marketization. At the same time, China today faces new challenges to growth and development, particularly from the necessity of restructuring its economy to focus increasingly on innovation and away from government led investment and low wage labour. In the context of digital financial services, China has been a late mover but this has changed dramatically in the past five years, to the point today where China is one of the major centres for digital financial services and financial technology (“fintech”). Looking forward, China needs to provide an appropriate regulatory basis for the future development of digital financial services and fintech, balancing growth and innovation with financial stability. China today is exhibiting signs of a last mover advantage in this respect that may see it leaping regulatory developments elsewhere.  Click here to download the paper.

Saturday, September 26, 2015

Defending Due Deference (Francis Chung (LLB 2015))

"Defending Due Deference: Probing Procedural Propriety in Proportionality"
Francis Chung (LLB 2015)
Statute Law Review
September 2015, Advance Access
Abstract: Two problems plague the proportionality test under the Human Rights Act 1998. The first is the tension between substantive and process review. Another is potential judicial fallibility. This article aims to pull these seemingly unrelated issues together to provide the court with some useful guidance on calibrating a suitable intensity of review in the application of proportionality test and interpretation of the Human Rights Act. When the court is uncertain about the cogency of the substance of the case, judges are required to examine the second-order reasoning to determine the level of deference, if any, to be accorded to the government. The author argues that adoption of a thorough and consci- entious legislative or policy-making procedure can increase the democratic and institu- tional legitimacy of the parliament or administration under the second order reasoning. In this premise, the author proposes a comprehensive process-oriented review whereby procedural evidence leading up to the consultation documents, select committee reports and Hansard should be admissible to prove the propriety of the decision-making pro- cess. The higher quality the procedure is, the more persuasive the second-order reasoning is. Courts should thus ascribe more weight to these types of evidence to strengthen the substantive merits of the case in applying the proportionality review under the Human Rights Act. Click here to download the full article.

Friday, September 25, 2015

Raj Kumar (SJD 2011), Michael Davis Speak at Law and Liberty Conference in Delhi

Professor Raj Kumar (SJD 2011), Dean of the Jindal Global Law School, opened a two-day conference on law and liberty held at the O.P. Jindal Global University on 18-19 September 2015.  Professor Michael Davis gave the keynote speech.  The Financial Express reported (24 September 2015) on the event as follows:
Jindal Global Law School (JGLS) and Jindal School of Government and Public Policy (JSGP) at the O.P. Jindal Global University jointly hosted the International Conference on “Law and Liberty”. The convention was organized in collaboration with The Federalist Society for Law and Public Policy Studies, a group of conservatives and libertarians interested in the current state of the legal order and justice, a public interest legal advocacy initiative of the Centre for Civil Society (CCS) aiming at advancing laws promoting personal, social and economic liberties, and at the same time imposing limits on the powers exercised by the state, through strategic litigation and legal advocacy.
     The forum on ‘Law and liberty’, had multiple tracks addressing a host of legal issues around Liberty vs Equality, License-Permit Raj to Competition Era, Separation of Powers–Judicial Activism, Usurping Executive Powers, Individual Rights vs Minority Rights and Right to Property.
     Over sixteen eminent speakers, both from India and abroad presented at the two day conference.
     “It is not very often, that one gets to see the word, ‘liberty’ appear beside, ‘law’,” said, Dr. Parth J. Shah, President, Centre for Civil Society, Delhi, while deliberating on the oxymoron that existed in the name of the International conference on ‘Law and Liberty’. Delivering his opening remarks at the conference, Dr. Shah, further examined the history of the concept of liberty in the democratic system of governance, and said, “Around the world, liberty, equality, justice and fraternity are known to be the cornerstones of any constitutional framework, with liberty taking precedence each time.”
     Delivering the inaugural address at the conference Professor (Dr.) C. Raj Kumar, Vice Chancellor, O.P. Jindal Global University (JGU), spoke of the ideological challenges pertaining to law and liberty in the country, he said, “In India particularly, we are living in the 19th, 20th and the 21st century together, and in a situation where you are living three centuries together, you simultaneously experience a form of political and constitutional discourse for which ideology alone does not suffice, and hence arises a need to develop a more nuanced understanding of issues”. Stressing on the critical need for the legal system to assume a larger role in the political and social discourse of the country, he stated, “As lawyers and public policy academics, one of the big challenges for many of us today, is to look at how law can actually be relevant to the larger political and social discourse that is taking place, we need to develop a deeper understanding of issues relating to law and liberty and we must have a contemporary view of these issues, I am certain that this conference will help address some of the fundamental and underlying issues related to law and liberty.”
      Speaking on constitutionalism in emerging states and the challenges faced by emerging democracies, Prof. Michael Davis, Distinguished Visiting Professor, JGLS & Professor, Faculty of Law, The University of Hong Kong, said, “Constitutionalism is not just about development of institutions, constitutions are not just words on paper endowed with original intent, rather they are avenues for interaction and mutual consent of the core institutions of government”. Debating if the process of constitutional judicial review actually serves the purpose of constitutionalism, he said, “Scholars have long appreciated that, constitutional judicial review, not only constraints but legitimates government undertakings, while simultaneously empowering people and in many cases functioning as a guardian of core institutions.... 
Click here to read the full article.

Thursday, September 24, 2015

Honourable Mention for the 2015 Richard Macrory Prize (Jolene Lin)

Congratulations to Jolene Lin and our former colleague Kelvin Low on receiving an Honourable Mention for the 2015 Richard Macrory Prize, an annual award for the best articles in the Journal of Environmental Law, published by Oxford University Press.  The recognition was received for their article, KFK Low & J Lin, "Carbon Credits as EU Like It: Property, Immunity, TragiCO2medy?" which was reported on earlier in his blog.  The judging panel, consisting of five Journal board members (excluding the General Editor), wrote the following about their article:
"This article is an excellent example of how excellent legal scholarship can make a valuable contribution in environmental law. The authors consider, from a property law perspective, the legal nature of a carbon credit. This thoughtful and rigorous analysis would be very helpful in a relevant legal dispute. The approach of the article moves the subject on in thinking about how environmental law concepts and more conventional areas of legal doctrine interrelate, examining how environmental regulation interacts with legal systems more deeply."

Report on the Status of Ethnic Minorities in Hong Kong (Event Launch)

The study, "The Status of Ethnic Minorities in Hong Kong, 1997 to 2014", was commissioned by The Zubin Foundation's Shalini Mahtani and conducted by Puja Kapai, Director at the University of Hong Kong's Centre for Comparative and Public and Law.
     "The Status of Ethnic Minorities in Hong Kong, 1997 to 2014" is the first research on ethnic minorities across all areas of life, from crime and health to employment and education, and has been compiled, synthesized and interpreted by author Puja Kapai. What is unique too about this research is that two ethnic minority women, Shalini Mahtani and Puja Kapai, are behind it.
     The research presented in this Report is drawn from existing data and research material that is publicly available. In some circumstances, the data pertains to ethnic minority groups more broadly and includes data of groups in addition to those that have been identified as the focus for this Report. In some areas, where limited data disaggregated by ethnicity is available, the data referenced is provided to offer a general impression and should be viewed with this important caveat in mind. It may, in such instances, be unreliable to draw generalised conclusions from the limited data. However, it has been included to highlight that more specific data disaggregated by ethnicity, gender, age and other variables is desirable to facilitate policy development and focused interventions. These are data gaps identified through this report. The government and other researchers are encouraged to identify additional data gaps and supplement with research of their own.
     The Report was launched on 23 September 2015 at an event held at the Foreign Correspondents' Club.  The launch was widely reported in local media, including RTHK, South China Morning Post and DBC.  RTHK featured a video clip and reported the following:
The government is failing to fulfill its constitutional obligation to ensure that people are free from discrimination, according to the author of a new study by the University of Hong Kong which concludes that ethnic minorities here are “extremely marginalised.”
  The study, by the University’s Centre for Comparative and Public Law, showed that ethnic minority residents consistently under perform in key areas such as income and education compared to the rest of the population.
  In a comprehensive compilation of data from the government, non-governmental organisations and academic research, the Centre found that minorities are less likely to attend kindergarten or stay in school, while they’re more likely to hold low-paying, low-skilled jobs, and earn below-average wages.
  The Centre’s director, Puja Kapai, told RTHK’s Timmy Sung that the report “is supposed to be a major eye-opener to the government… If everything is equal; if there is fairness in Hong Kong’s system; if you’re serious about your diversity pledge; then why do we have this consistent under performance across all areas of life for ethnic minorities?”
  Kapai said the government is obligated under the Basic Law to guarantee equal rights for all, and urged the administration to set up a high-level committee to look into the major problems faced by minorities: education; discrimination; poverty; and health.
  She added that the marginalisation of minorities “may not necessarily be based on racial discrimination. It may be that the way in which the system is designed is not capable to allow equal access. But that is indirect discrimination anyway.”
DBC noted the following key observations from the event:
  • Hong Kong’s education system is failing ethnic minority children
  • Lack of Chinese language skills and lack of inclusion are the main barriers for ethnic minority education
  • Young ethnic minorities find it difficult to find jobs and the elderly are working too hard
  • Chinese reading and writing are critical to getting jobs in Hong Kong
  • There is racial hierarchy in Hong Kong and “brown” is at the bottom
  • Ethnic minorities (except Indians) have a much higher chance of ending up in elementary occupations
  • Ethnic minorities (except Indians) earn less than the Hong Kong average
  • Poverty is a serious problem facing ethnic minorities and so is child poverty
  • Crime is a growing problem amongst ethnic minorities
  • The term “ethnic minority” does not work
  • Domestic violence against ethnic minority women is a big problem.
The report can be read and downloaded here.  Click here for the HKU Press Release.  Ms Kapai's panel interview on RTHK radio's Backchat programme can be found here.

Tuesday, September 22, 2015

Cross-border Implications of Chinese Police Brutality

The recent trial of the men who attacked news editor, Kevin Lau, raised the issue of police brutality on the Chinese mainland in cross-border criminal cases. Without a fugitives surrender agreement, there is little law to govern the capture and return of suspects from the mainland to Hong Kong. Important legal questions remain unclear. Do suspects enjoy Basic Law rights while being questioned by mainland officers? What are the consequences in Hong Kong if those rights are violated? Common law rules of evidence require that a confession given to a person in authority must be proven to be voluntary to be admissible, meaning proof of the absence of threats, inducements and oppression when the statement was taken. A statement taken in Hong Kong may appear to be voluntary but can still be excluded if oppression from the mainland interrogation taints the Hong Kong investigation. 
     Beyond excluding confession evidence, which the prosecution may not need, are there other implications for the criminal trial? At one time common law courts paid little attention to police violence unless the conduct compromised the quality of the evidence or violated a defendant’s right to silence. Courts now show greater concern with how cases have been investigated and pursued. Judges have a duty to ensure “that the integrity of the judicial system is not compromised” and that the “administration of justice is not brought into disrepute” (HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232, [18]). Serious police illegality or misconduct may amount to “an affront to the public conscience” and require the criminal proceedings to be judicially stayed, meaning permanently suspended (HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, [149]).
     While the law here is still developing, recent Canadian cases have held that police brutality can amount to an abuse of process warranting a stay of proceedings. In R v Bellusci [2012] 2 SCR 509, the defendant prisoner was charged with intimidating a guard; the charge was stayed because the guard in revenge had grievously assaulted the prisoner, who was handcuffed and shackled. In R v Tran (2010) 103 OR (3d) 131 (CA), very serious home invasions charges were stayed where the defendant, after turning himself in, was beaten by two officers who broke Tran’s jaw and tried to conceal their misconduct. In a robbery case, R v Singh, 2013 ONCA 750, the court wrote: “society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions”. Three officers were involved in the beating and one said to the defendant, “sorry…It’s part of my job”, to which the court said, “It is not.” Cases have also accepted that police brutality can justify a reduction in sentence (R v Nasogaluak [2010] 1 SCR 206).
     Following the approach of these cases would be a strong affirmation of judicial integrity and the rule of law. But the greater hurdle in any case will be to convince the court that the abuse did in fact take place.  Written by Simon Young.  An edited version of this article was published in the South China Morning Post on 22 September 2015 with the online heading of "Upholding the rule of law: abuse of defendants no longer 'part of the job'".

Sunday, September 20, 2015

Zhao Yun Interviewed on Chinese E-Commerce and Personal Data

"Deep dive: Chinese e-commerce's rush into online finance could put countless users' data at risk"
Hudson Lockett
China Economic Review
17 September 2015
Once Jack Ma was the little guy. Now he wants to give the little guy little loans.
     Earlier this year MYbank, the online bank affiliated with e-commerce colossus Alibaba, launched with the intent to grant small loans to individuals and small businesses. Last week, rival Tencent announced a new small loan service from which users of its WeChat social network and digital payment launchpad can borrow up to RMB200,000 - without any collateral or guarantee - from its own affiliated online bank, Webank.
     On Tuesday Ant Financial, the Alibaba affiliate controlled by Jack Ma that runs MYbank, announced it had purchased a controlling stake in an insurance company with the intent to provide insurance services online to small businesses and consumers. If precedent holds, Tencent can be expected to announce a near-identical investment forthwith.
     This back and forth has become a fixture of China's private enterprise landscape: Both companies use their deep pockets and deep reserves of user data to try and gain an edge in the latest nascent Internet-enabled sector, all with an eye toward unseating China’s financial establishment. But new user authentication requirements favoring brick-and-mortar banks don’t just fail to address existing data security and privacy issues in Chinese e-commerce; they could force users to provide Alibaba, Tencent and other online businesses with biometric data such as fingerprints which, once shared or stolen, could prove a problem for life. 
...
     There is a well-documented and increasingly urgent need to shake up China's risk-averse, inefficient and mostly state-run banking sector. But concerns go well beyond those of existing banks and extend to the protection of Chinese citizens’ private data. Those have been difficult to articulate historically due to a lack of any legislation defining what personal information even means.
     “The relevant legislation is all at the ministerial level,” said Zhao Yun, director of the Centre for Chinese Law at Hong Kong University. While gains had been made in recent years with various lower-level guidelines, Zhao said, there was still no national-level legislation protecting, or even defining, personal data on the mainland. 
     “We need to have a unified law,” he said. “If we really have a personal data law at the national level we can strengthen enforcement.”...  Click here to read the full article.

Saturday, September 19, 2015

Michael Davis on the Separation of Powers Debate in Hong Kong (SCMP)

"Separation of powers is already a fact of life in Hong Kong"
Michael Davis
South China Morning Post
19 September 2015
Zhang Xiaoming , head of the central government's liaison office in Hong Kong, caused quite a stir when he proclaimed that the city's executive-led government does not have separation of powers and that the chief executive is superior to the other two branches of government. He claimed that having three branches of government - the executive, legislative and judiciary - with each checking and balancing the other, did not amount to separation of powers. He also doubted separation of powers could apply to a sub-national government.
     One can speculate on what Zhang was attempting to achieve, but when it comes to his legal analysis, he is clearly confused. Zhang's claim that the Hong Kong system has never been characterised by separation of powers is simply false. His own recital of a dozen Basic Law provisions that afford oversight of one branch of the Hong Kong government over the others in a web of checks and balances belies such a claim.
     Indeed, contrary to his statement, when you have the three branches of government and each checks and balances the other, then you have separation of powers. That is quite literally the definition of separation of power originating in the writings of Montesquieu in the classic The Spirit of the Laws...  Click here to read the full article.

Launch of the Des Voeux Chambers Oxford-HKU Visiting Fellowship

The Faculty is pleased to announce the launch of the Des Voeux Chambers Oxford-HKU Visiting Fellowship. In September 2015, Des Voeux Chambers sponsored and facilitated the setting up of a fellowship scheme between the University of Oxford and HKU. The scheme enables an academic member of the Oxford Faculty of Law to spend a month in Hong Kong as a visiting fellow in the HKU Faculty of Law, so as to enhance academic exchanges between the two institutions.  The inaugural visiting fellow is Professor Stefan Enchelmaier, who is Professor of European and Comparative Law.  Professor Enchelmaier together HKU faculty Thomas Cheng and Kelvin Kwok will deliver lectures on competition law on 23 September 2015.  Professor Enchelmaier will also deliver two additional lectures: "English and German Company Law Compared" (22 September 2015) and "The Anti-Deprivation Rule under English and German Insolvency Law" (29 September 2015).  For more information about these events, click here.  We thank Des Voeux Chambers for their generous support of the Faculty.

Friday, September 18, 2015

Zhang's Strict Version of Separation of Powers (Danny Gittings)

Hong Kong’s newspapers, and radio airwaves, have been dominated for the past week by reaction to the self-professed “controversial” comments by Zhang Xiaoming. In a 12 September 2015 speech to a seminar on the 25th anniversary of the promulgation of the Hong Kong Basic Law, the Director of the Liaison Office of the Central Peoples’ Government in Hong Kong denied the existence of any system of separation of powers under the Hong Kong Basic Law. Instead he insisted the correct description was one of executive-led government with, most controversially, the Chief Executive enjoying “a special legal status that transcends the executive, legislature and judiciary”.
     Zhang’s denial of the existence of any system of separation of powers might seems puzzling to those who have read Chapter IV of the Hong Kong Basic Law, with its separate sections on the powers of the Chief Executive (Articles 43-58), Executive Authorities (Articles 59-65), Legislature (Article 66-79) and Judiciary (Article 80-98), as well as the relevant case law on the subject, especially the Court of Final Appeal’s strong affirmation of the existence of a system of separation of powers in Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689.
     But they are readily understood by reference to another—little noticed—speech Zhang delivered four years ago, where he examined separation of powers in more detail in the context of Macau, another Special Administrative Region with a mostly similarly worded Basic Law. In that 2011 speech,[i] Zhang offered something missing from his latest speech, explaining his understanding of separation of powers, and defining it as requiring “a certain level of checks and balances and a degree of equilibrium among executive, legislative and judicial powers are attained, with complete institutional, functional and personnel separations of the three branches, each being not accountable to the other two and roles of officers of each branch not overlapping those of the others”[ii] (emphasis added).
     Assuming Zhang still adheres to such a strict definition of separation of powers, it is no surprise he concluded that the system under the Hong Kong Basic Law, which permits legislators to sit on the Executive Council (Article 55) and grants the Chief Executive sweeping powers over the introduction (Article 74) and promulgation of legislation (Article 49) (to cite just a few examples of overlaps between the three branches), fails to fulfil his definitional requirement of “complete institutional, functional and personnel separations of the three branches”. But nor would almost any other constitutional document in world history, with the possible exception of the short-lived French Constitution of 1791 and a few equally brief experiments in states such as Pennsylvania during the American War of Independence.
     Such ill-fated experiments aside, separation of powers has never entailed the complete separation of the executive, legislature and judiciary that Zhang’s definition would appear to require. Indeed the whole concept of checks and balances demands some degree of overlap between the executive, legislature and judiciary. Instead it would seem preferable to view the concept through a “separation-of-powers continuum”[iii] that embraces a wide range of constitutional models, which all embrace separation of powers to varying extents, and can be placed at different places along this continuum based on the degree to which they do so.
      As Yash Ghai once observed, “the interesting question is not whether there is a separation of powers, but the balance and relationship between the institutions”.[iv] Rather than making definitive judgments based on an overly strict definition, it might be more productive to consider more precisely where Hong Kong fits within the “separation-of-powers continuum”.
     Written by Danny Gittings, who is completing his PhD on the topic of separation of powers in Hong Kong.


[i] “Why the Political System of the Macao SAR is not One of Separation of Powers’. Speech at the Graduation Ceremony of the Advanced Seminar for Macao Basic Law Studies”, reprinted in (2013) 2 Academic Journal of “One Country, Two Systems” (English Edition) 5-13.
[ii] Ibid. at 9.
[iii] Donald S. Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006) at page 123.
[iv] Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 2nd edition, 1999) at page 263.

Research Integrity Seminar by Lisa Webley

Professor Lisa Webley from the School of Law, University of Westminster, delivered an engaging seminar to faculty and research postgraduate students on 11 September 2015.  In her talk titled "Research as Ethical Endeavour", she explained how ethical engagement and reflection can in fact improve the quality of one's research.  She began her talk by discussing the potential role confusion when it comes to research as a lawyer and research as an academic.  Unless one is doing theoretical work, she made the point that empirical research in law is the norm.  She emphasised that academic researchers not only had obligations to research participants but also to the academic community and to "research" itself.  Ethical reflection involved understanding our role in the research, acknowledging our standpoint and our influences on participants and third parties.  Practical steps should be taken to minimise ethical concerns and familiarity with HKU's policies and procedures on research integrity is essential.  
    Professor Webley is Professor of Empirical Legal Studies and Faculty Research Director at the University of Westminster.  She is also Course Director and principal teacher in the Institute of Advanced Legal Studies' two-week intensive course on legal and empirical research methods.  Her visit to the Faculty was supported by HKU's Research Integrity Funding Scheme 2014/15.

LLM (Human Rights) Student Carol Xuan Profiled in the SCMP

"'We were in constant fear: former inmate tells of childhood in Hong Kong's Vietnamese refugee camps"
Raquel Carvalho
South China Morning Post
14 September 2015
When Carol Xuan was 10 years old her father picked her up out of the blue from the family home in Hai Duong, Vietnam and bundled her on to a rickety boat. She had no idea where she was going. That was 27 years ago, and while the destination is no longer a mystery, to this day she has no idea why.
     Xuan, now 37, was embarking on a harrowing and dangerous 14-day sea voyage during which she would encounter storms, sleep deprivation and severe hunger which forced her and her fellow boat people to stop off in villages along the coast of China to beg for rice.
     As dreams of hope battled the little girl's very real fears, Hong Kong's skyline shimmered before them like a mirage: "Oh my God! When we saw the lights from afar … those little dots … we were … ah! That's it," she recalled. "Lighting meant life and hope. And it meant we had survived."
     Their joy was short-lived. They were sent to Green Island, one of Hong Kong's detention camps.  "It was a very small place … Men and women were sleeping next to each other. There were no proper bathrooms. I remember we were having showers in an open space, using a blanket or something like that to cover one another," she recalled.
     Later she was transferred to Whitehead, where she spent most of her eight years in detention. The images of riots, mass demonstrations and other refugees being transferred by truck to other camps or sent back to Vietnam still haunt her... Click here to read the full article.

Thursday, September 17, 2015

New Article on 'Legal Education Without the Law' (Int'l J of the Legal Profession)

"Legal education without the law - lay clients as teachers and assessors in communication skills"
Wilson Chow and Michael Ng
International Journal of the Legal Profession
Sept 2015, 23 pp
Abstract: This paper reports an empirical study of the use of simulated clients to assess (facilitate the learning of) interviewing skills and communicative competence of law students at the University of Hong Kong (HKU) from February 2013 to April 2014. In this period, about 400 HKU Postgraduate Certificate in Laws students participated in interviewing exercises with simulated clients, who are lay persons trained to portray clients in a realistic manner and to assess communicative competence by standardized rubrics designed in Scotland since 2006. HKU Faculty of Law is the first law school in Asia to adopt this standardized client program to assess law students’ interviewing skills. The paper will present the data analysis of assessment results of the students and their evaluation of this experiential learning program. Our analysis confirms the reliability and validity of using standardized clients as assessors of interviewing skills. It also reveals the necessity of modification of the original design of standardized client program, particularly in relation to the assessment aspect of it, according to specific cultural and commercial needs in an Asian business city like Hong Kong.  Click here to download the full article.

Monday, September 14, 2015

Sherif Elgebeily on the UN Security Council's Role in the Current Refugee Crisis (SCMP)

Sherif Elgebeily (CCPL)
South China Morning Post, 15 September 2015
Imagine the entire population of Hong Kong fleeing their homes in the space of six months. Last year, an average of 42,500 people daily were "displaced" - either as internally displaced persons or refugees - and the UN puts the total worldwide number at 58 million at the end of the year.
     Meanwhile, the UN Security Council today supports or ignores the regimes that are creating the problem. Put simply, its failure to reach a consensus on its central duty to maintain peace and security is a cause of the global refugee crisis: refugees are a product of war and political instability.
     To pass, council resolutions must win a minimum of nine affirmative votes out of a total of 15. This is to ensure that no unilateral military action can be taken by a state except in instances of self-defence.
     The trouble is, this system does not work in reality. In order to pass, a resolution must also not engender a veto by any of the five permanent members - the US, Britain, France, Russia and China. Over the years, this has translated into the importation of their national foreign policies into the council. Inaction on Syria, for example, is the result in part of China's domestic policy of non-intervention, which has led to its repeated use of the veto on resolutions relating to the crisis... Click here to read the full article.

Legal Clinic Programme Wins HKU Faculty Knowledge Exchange Award 2015

Congratulations to Eric Cheung, Edmond Lam and Edward Chan for winning this year's Faculty Knowledge Exchange Award.  They are recognised for their work in the HKU Law Faculty's Clinical Legal Education (CLE) Programme, which is the first of its kind in Hong Kong.  Since its introduction in January 2010, 
  • more than 600 clients have received free legal advice and given positive feedback to students;
  • miscarriage of justice was rectified in more than 10 successful appeals or legal aid applications upon free legal representation through the CLE programme;
  • an erroneous approach to the merits test by the Legal Aid Department was rectified upon a successful case handled by the CLE programme; and
  • wide media coverage (including in a TVB documentary series) and burgeoning demand from the public for CLE service has been received.
The programme's philosophy is to equip law students not only with competent lawyering skills and legal knowledge, but also with a heart to serve the needy with professionalism and dedication.  This programme adopts a learning by doing as well as a discipleship approach, which serves to supplement a lacuna in traditional classroom teaching in law.  It provides a unique learning opportunity to students to experience first-hand how the legal principles and system operate in reality and to provide meaningful service to the public, thereby inculcating a pro bono culture in their hearts.  The programme was featured in a China Daily article in September 2014.   Click here for more information about the CLE programme.

Thursday, September 10, 2015

Puja Kapai Featured in Photography Exhibition on Ethnic Minority Women

CCPL Director, Puja Kapai is featured in Hong Kong Unison’s photography exhibition, "She says – Photographing Ethnic Minority Women". The exhibition, featuring 17 portraits and stories of women, sets out to break stereotypes and tell the life stories of these women.  What is uncovered is picture upon picture of courage, compassion, strength and grace. “Women are very strong by nature. A woman can handle many things and achieve many things,” said one of the women. The launch ceremony took place on 6 September 2015 and featured guests speakers Ms. Naveed Arjumand (President of Pakistan Women Association HK) and Ms. Dorothy Lee (Secretary General of Hong Kong Catholic Commission for Labour Affairs). The exhibition will run until 19 September 2015 at SoCO269 and has been covered in both English and Chinese press, including the South China Morning Post, Ming Pao Daily News and Sing Tao Daily.
Exhibition Info
Dates: 06/09/2015 – 19/09/2015
Time: Monday-Friday, 16:30-20:30 pm; Saturday-Sunday, 12:00-20:30 pm
Venue: SoCO269, 1/F, 269 Yu Chau St, Sham Shui Po, (3 min. walk from MTR Sham Shui Po ExitC2)
Admission: Free
Enquiry: 27893246
     Ms Kapai was also featured in the Personality Profile for the September-October issue of VIRSA The Culture Magazine, sharing her view on her advocacy work locally and before international treaty bodies on ethnic minorities and equality in education. VIRSA The Culture is a bimonthly publication that hopes to bring most up to date news to the ethnic minority community in Hong Kong. The magazine sometimes covers aspects on anti-discrimination law as promoted via the Equal Opportunities Commission through their magazine and though predominantly written for an English speaking audience, features contributions in ethnic minority languages such as Hindi and Punjabi. The magazine can be found at http://www.sumdigitalhk.com/#!magazine/galleryPage.

Sunday, September 6, 2015

Charles Lam and Say Goo on Enforcement in Chinese Corporate Governance

"The issue of enforcement in Chinese corporate governance"
Charles Lam and Say Goo
Journal of Financial Crime
2015, Vol. 22, Issue 4, pp. 468-475
Abstract: The purpose of this article is to discuss two important aspects of enforcement of ethical standards: indirect enforcement, that is the Confucian approach, and common law enforcement. In the context of Confucianism, one should not be too attached to the liberal interpretation of the Confucian texts but must have the wisdom to apply the concepts case-by-case and in accordance with a particular context. By referring to the Confucian teaching, there are several ways to encourage the superior to follow the ethical standards, namely, education, fear of punishment by society, peer pressure, intrinsic value, continuing education and codification of Confucian value/moral standards. In addition, there are several enforcement options based on the Entity Maximization and Sustainability Model, which is highly relevant to the enforcement model of Confucianism. It is the first of its kind in strengthening the enforcement of Chinese business ethics by adopting the Confucian approach and common law approach. The two are not mutually exclusive but complementary with each other to bring the enforcement of Chinese business ethics to the next level.  Contact the authors for a copy of the article.

Saturday, September 5, 2015

James Fry Interviewed on Hong Kong Investigation of 1MDB Scandal

"Former Malaysian official asks Hong Kong police to investigate 1MDB scandal"
Ben Westcott
South China Morning Post
3 September 2015
A former Malaysian official has filed a report with Hong Kong police to investigate the 1MDB scandal, after he said he lost faith that police in his homeland would uncover the truth.
     Both local businessman Jho Low and Malaysian Prime Minister Najib Razak have been implicated in the ongoing investigation.
     But a University of Hong Kong law expert said it would be very difficult for local authorities to enforce any punishment against those accused...
     HKU associate law professor James Fry said under international law the ability to enforce legislation in a particular case or against a particular person usually depended on them being in the same jurisdiction.
     “Enforcement will be difficult until the person actually arrives in Hong Kong, even assuming there exists the ability to prescribe certain behaviour in that case,” he said.
     “This is to say nothing about any immunity issues that might exist if you are dealing with a leader from a foreign country.”... Click here to read the full story.

Friday, September 4, 2015

Charles Lam and Say Goo on Confucianism's Application to Corporate China

"Confucianism and its Theoretical Application to the Corporate World in China"
Charles Lam and Say Goo
Company and Securities Law Journal
2015, Vol. 33, pp 332-340
Introduction: There has been a long history of socio-economic interactions and trade ties between China and Australia. With China’s economic miracle, it is all the more important to develop the country’s legal system and the underlying philosophy in order to support its high-speed development. In this respect, China can borrow the experience from well-developed common law systems such as that in Australia. In Hong Kong, the Basic Law of the Hong Kong Special Administrative Region provides that judges from other common law jurisdictions may be invited to sit on the Court of Final Appeal to enrich the local court system and the development of its jurisprudence. One remarkable example is the appointment of Sir Anthony Mason, a former Chief Justice of the High Court of Australia, as one of the first non-permanent judges of the Hong Kong Court of Final Appeal. 
      On the other hand, in doing business with China, it is essential to know about the Chinese way of doing business and the deep-rooted logic and reasoning grounded in Confucianism in order to achieve a win-win commercial partnership. In addition, with an increasing number of Chinese people studying and living in Australia, there is a large pool of talented people who are interested to appreciate the importance between Confucianism and the commercial world. When it comes to ethics, instead of taking an abrupt or revolutionary approach, it is better to develop the system through an orderly and gradual progress according to the culture fit theory as analysed in this note. A stable and sustainable development in China is conducive not only to the interest of Chinese people, but to the sustainability and prosperity of the neighboring countries in this region, including Australia. 
      This note examines the historical development of Confucianism in China and discusses the insightful teachings of Confucius, Mencius, Xunzi and the Neo-Confucian scholars in the Song Dynasty. Against this historical backdrop, we then discuss the possible revival and application of Confucianism in China in light of the culture fit theory, path dependence theory and institutional theory with a view to restore the corporate world order in China based on Confucianism.  Contact the authors for a copy of the article. 

Thursday, September 3, 2015

Jianlin Chen's Critical Study of Legislation by Press Release

"The Yet-to-Be Effective But Effective Tax: Hong Kong's Buyer's Stamp Duty as a Critical Case Study of Legislation by Press Release"
2015, Vol. 10, n. 1, pp 1-64
Abstract: When a government announces that an existing law will be amended and that the amendment, when finally enacted by the legislature, will be made effective from the announcement date, it is natural and inevitable that private entities will conduct their activities on the basis of the amended law immediately upon the announcement date, notwithstanding the announcement’s lack of any formal legal effect. This practice of effecting immediate de facto legal changes is known derisively, but perhaps aptly, as “legislation by press release.” This article utilizes the recent use of legislation by press release to implement the Buyer’s Stamp Duty in Hong Kong as a case study to critically examine the legality and normative considerations of this increasingly common but under-theorized practice. Legally, this Article argues that the prospective notice provided by the initial announcement ensures the practice’s legality in all but an explicit prohibition of retrospective civil legislation. Normatively, this Article highlights the various criteria of clarity, consistency, necessity and political dynamic that affect the desirability of the practice. On a broader note, the formal retrospectivity inherent in the practice - but which does not disrupt the reliance interests of private entities - provides a useful reexamination of the conventional aversion towards retrospective laws.  Click here to access the full article.

Tuesday, September 1, 2015

New Issue of Hong Kong Law Journal (Vol. 45, Part 2)

Editor-in-Chief: Rick Glofcheski
Associate Editor: Albert Chen
Vol. 45, Part 2, August 2015
Table of Contents
Comment
Rethinking the Process of Political Reform in Hong Kong 
Simon NM Young 381

Analysis
Judicial Enforcement of the Listing Rules in Hong Kong 
Tom Ng 389
Omissions and Public Authority Liability: Should Hong Kong Follow England’s Lead? 
Hin Ting Liu 405

Lecture
55 Years in the Law 
Lord Walker of Gestingthorpe 417

Articles
The United Nations Human Rights Inquiry on North Korea: Background, Reaction and Prospects 
The Hon. Michael Kirby AC CMG 425
Leave Without Delay: The Requirement to Make Prompt Application for Leave to Apply for Judicial Review 
Stephen Thomson 449
The Failure of Corporate Internal Controls and Internal Information Sharing: A Conceptual Framework for Taiwan 
Chang-hsien Tsai 469
Using Actuarial Evidence in Singapore and Hong Kong: A Sequel to “Lai Wee Lian Revisited” 
Felix WH Chan, Wai Sum Chan and Johnny SH Li 499
Realising the Right to Health: A Comparative Study of South Africa, the United States and China 
Xiao Pan 517
The Sewol Accident and its Legal Implication 
In Hyeon Kim 547

China Law
Human Rights in China–Taiwan Relations: How Taiwan can Engage China 
Yu-jie Chen 565
Decision-Making and Scrutiny of Rural Land Expropriation in China: Conventional Wisdom and Beyond
Chun Peng 591
Changes and Challenges of the 2014 Revised Environmental Protection Law in the Context of China’s Five Fundamental Transitions 
Mingqing You 621
Measuring China’s Social Insurance Law under International Standards of International Labour Organization and Influences of Social Dimension Provisions of Free Trade Agreements and Bilateral Investment Treaties 
Ronald Brown 651

Book Reviews
International Capital Markets: Law and Institution, Cally Jordan 
Robin Hui Huang 679
Dress, Law and Naked Truth: A Cultural Study of Fashion and Form, Gary Watt 
Marco Wan 687

Simon Young on Rethinking the Process of Political Reform (HKLJ)

"Rethinking the Process of Political Reform in Hong Kong"
Simon NM Young
Hong Kong Law Journal
August 2015, Vol. 25, Part 2, pp 381-388
In a historic vote on 18 June 2015, the Hong Kong government failed to obtain the support of two-third of all 70 Legislative Council (LegCo) members for its proposal on universal suffrage of the chief executive.  Had the proposal been passed, the chief executive would have been elected by up to five million eligible voters in 2017. Ironically, all 27 pan-democrat legislators voted against the proposal, as was expected for many months. They objected to the restrictions imposed by the Standing Committee of the National People’s Congress (NPCSC) in its 31 August 2014 decision. In their view, the restrictions were incompatible with genuine universal suffrage because they effectively enabled the central government to choose two to three chief executive candidates. In an unexpected blunder, only eight pro-establishment legislators remained in the chamber to vote in favour of the proposal; the other 31 left at the last minute hoping to trigger a delay to buy time for a fellow legislator (Mr Lau Wong-fat), who was stuck in traffic, to arrive and cast his vote. Unfortunately, the plan was not communicated well to those who remained in the chamber. Four days after the reform vote, pan-democratic legislator, Mr Ronny Tong, announced his resignation from both the Civic Party and LegCo in order to start a middle of the road think tank known as “Path of Democracy”.
     A process of reform, which began in December 2013, ended in great disappointment for everyone. With the reform proposal rejected, the chief executive will continue to be nominated and selected by a 1200-person election committee, at least until 2022, and the earliest possible year for realising full universal suffrage of the legislature will be 2024, if not 2028.  Many reasons have been given for why the reform efforts failed, eg the lack of mutual trust between the pan-democrat legislators and the central government, the hard-line approach adopted by the central and Hong Kong governments allowing for no compromise or negotiations, the 79-day Occupy Central protests and perceived interference by foreign governments strengthening Beijing’s resolve to adopt a conservative approach to protect national interests, the uncompromising principled position of the pan-democrat legislators, the central government’s indifference to Hong Kong universal suffrage despite outward appearances to the contrary and so on.
     Little attention, however, has been paid to how the process of reform may have contributed to the demise of the reform enterprise itself. No public consultation on the process preceded the public consultation on substantive reform proposals in late 2013. Indeed, surprisingly few questioned the process adopted by the government. It is argued here that the nature and significance of the reform exercise deserved a more participatory process than the one adopted, ie one that involved more meaningful contributions from the public at important moments in the process. The quality of a participatory process should not be measured solely by the numbers of meetings held with or submissions received from members of the public. Receiving meaningful contributions at important moments means that the public is consulted initially not only on reform issues but also on draft reform proposals before they are finalised. It also means that the relevant reform bodies should include membership from independent individuals, whether as experts or representatives of the public. The Hong Kong government should also have consulted and secured agreement with legislators on the process of reform before commencing the reform exercise. If the stakeholders agreed at the outset that the process to be followed would be fair and transparent, it would be more likely that they would accept the outcome from that process... Click here to download the article.

Felix Chan on Using Actuarial Evidence in Tort Cases (HKLJ)

"Using Actuarial Evidence in Singapore and Hong Kong: A Sequel to 'Lai Wee Lian Revisited'"
Felix Chan, Wai Sum Chan and Johnny SH Li
Hong Kong Law Journal
August 2015, Vol. 45, Part 2, pp 499-515
Abstract: Following the English common law, successful claimants in personal injury and clinical negligence cases in Singapore and Hong Kong usually receive their compensations as a lump sum. The amount in respect of future expenses and loss of future earning is a result of discounting the future pecuniary values into a single present-day amount, considering inflation, the time value of money and the claimant’s mortality. Using actuarial tables based on projections of the mortality rate of the general population may be considered as an alternative method in converting the future loss of earnings and future expenses into a lump sum reflecting its present value. For this purpose, a set of actuarial tables are constructed in this article. Various options for determining the appropriate discount rate(s) are explored in the context of the statistical and economic data of Singapore and Hong Kong.  Contact the authors for a copy of the article.

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