Monday, November 30, 2015

Puja Kapai Judging at the Hong Kong Human Rights Arts Prize 2015

Puja Kapai, Director of the Centre for Comparative and Public Law, Social Justice Summer Internship and Associate Professor of Law, has been invited as one of the judges for the 2015 Hong Kong Human Rights Arts Prize, organised by the Justice Centre. The Awards Ceremony for the Winning Pieces will be held in conjunction with a Charity Auction to raise funds for the Justice Centre’s integral work in Hong Kong, and will take place on 10 December at the Fringe Club from 7 to 10 pm to coincide with International Human Rights Day. We hope to see you there to mark this important occasion, as well to enjoy the shortlisted artworks on display. For further details, please see the announcement below.
     Justice Centre Hong Kong is delighted to invite you to the 

Hong Kong Human Rights Arts Prize 2015 Awards Ceremony and Charity Auction.
Thursday December 10, 7-10pm (International Human Rights Day)
The Fringe Club, 2 Lower Albert Road, Central
RSVP: artsprize@justicecentre.org.hk
Suggested donation at the door: HK$300
Established in 2013, the Hong Kong Human Rights Arts Prize aims to harness the power of the visual arts – painting, photography, graphics and video amongst them – to promote awareness, provoke dialogue, inspire action and bring about change in the area of human rights.
     The winners of the Prize will be announced and their artworks auctioned by Christie's on the evening of December 10, International Human Rights Day. Additional artworks donated by leading artists and supporters of the Hong Kong Human Rights Arts Prize - including Kacey Wong, Gyun Hur, MAP Office and David Boyce - will also be auctioned. All funds raised on the night will go to support Justice Centre’s work to protect the rights of forced migrants in Hong Kong.
     This year, for the first time, a week-long exhibition will precede the auction from Friday December 4 (from 4pm) to Thursday December 10 (10am-10pm daily, closed Sunday). You can preview the exhibition and pre-bid at www.justicecentre.org.hk/artsprize or at the venue from December 4. This event is part of Human Rights Week, a series of talks and activities organised by Justice Centre in the run up to International Hong Kong Human Rights Day. More details at www.justicecentre.org.hk/events.  Each year up to 18 law students in the Faculty participate in a human rights clinical legal education programme co-organised with Justice Centre Hong Kong.

Thursday, November 26, 2015

Integration and Interconnectedness in Global Finance (Call for Papers for International Conference)

Integration and Interconnectedness in Global Finance:
Annual Conference of the Journal of Financial Regulation

Conference Announcement and Call for Papers
24-25 June 2016, Hong Kong

The editors of the Journal of Financial Regulation invite submissions for the Journal's 2016 annual conference.

CONFERENCE OVERVIEW: One of the most striking trends within the global financial system over the past several decades has been the increasing degree of integration and interconnectedness. This trend has been driven by the promise of new markets, greater international risk sharing, lower macroeconomic volatility, and - perhaps most importantly - higher economic growth. Yet as painfully demonstrated by the global financial crisis of 2008, the subsequent European debt crisis, and the global volatility triggered most recently by developments in emerging markets and China, the theoretical promise of regional and global integration brings with it a number of potentially significant perils. These perils present important problems for policymakers, scholars, and practitioners in the field of financial regulation.

TOPICS: Against this backdrop, the editors of the Journal of Financial Regulation have selected "Integration and Interconnectedness in Global Finance" as the theme of the Journal's 2016 annual conference, with a particular emphasis on recent developments in Asia. This conference will seek to explore a broad range of topics including, but not limited to:
  • emerging risks to financial stability stemming from increasing integration and interconnectedness, particularly in Europe, Asia, and emerging markets;
  • the evolving role of international financial institutions, in particular the International Monetary Fund as international lenders of last resort;
  • the development, role, and effectiveness of regional institutions such as the European Systemic Risk Board, European Banking Union, and ASEAN in promoting financial stability;
  • the role of the Financial Stability Board, Basel Committee on Banking Supervision, and other international institutions in designing frameworks and promoting regulatory reform with the objective of promoting global financial stability;
  • the potential role, influence and political importance of the newly created Asian Infrastructure Investment Bank and New Development Bank;
  • the potential impact of the internationalization of the Renminbi;
  • how national authorities are approaching the challenges created by increasing integration and interconnectedness; and
  • the nature and structure of cooperation between national authorities responsible for financial regulation.
The conference organizers invite papers from scholars, policymakers, and practitioners on each of these topics, and on any other topic of relevance to the conference theme. The organizers encourage the submission of papers that examine these topics from an interdisciplinary, international and/or comparative perspective.

PAPER SUBMISSION PROCEDURE: Papers, which should be submitted in English, should be submitted via email to Genevieve Helleringer at assistanthelleringer@gmail.com. The subject line of the email should state "JFR Conference Submission". To facilitate blind review, names and other identifying information should be redacted from the submitted paper (but clearly identified in the message). Authors who wish to have their conference submission considered for publication in the Journal of Financial Regulation should also submit their paper via the ScholarOne link available on the journal's website: http://jfr.oxfordjournals.org
     Deadline for submission of papers for the conference is 1 March 2016. Authors will be notified regarding whether their paper has been accepted for presentation at the conference by 30 April 2016.
     The Journal of Financial Regulation is a peer-reviewed journal. Papers selected for presentation at the conference are not guaranteed to be accepted for publication in the Journal, but will be offered a fast-track peer review process. Non-acceptance of the paper for the conference does not per se exclude a potential later consideration for publication in the journal through the regular submission procedure.

ABOUT THE JOURNAL OF FINANCIAL REGULATION: The Journal of Financial Regulation is a peer-reviewed journal dedicated to examining theoretical, policy, and practice-related issues in the area of financial regulation. The Journal seeks to publish world class scholarship which examines these issues from an interdisciplinary, international, and comparative perspective. The Journal is published by Oxford University Press. Further information about the Journal - including its contents, aims and objectives, submission process, and subscription details - is available on the Journal's website: http://jfr.oxfordjournals.org. To subscribe to our emailing list, please send a message to georg.ringe@law.ox.ac.uk (subject: subscribe).
     The Journal of Financial Regulation is edited by: Dan Awrey, University of Oxford; Thierry Bonneau, University Paris II/Pantheon-Assas; Genevieve Helleringer, Essec Business School Paris-Singapore and University of Oxford; Georg Ringe, Copenhagen Business School and University of Oxford, and Marco Ventoruzzo, Bocconi University and Pennsylvania State School of Law.
     This 2016 conference is hosted by the Asian Institute of International Financial Law of the University of Hong Kong and co-organised with the Centre for Financial Regulation and Economic Development of the Chinese University of Hong Kong, the City University of Hong Kong, the Centre for Banking & Finance Law of the National University of Singapore and the Centre for Cross-Border Commercial Law in Asia of Singapore Management University.

Wednesday, November 25, 2015

New Edition: Land Law in Hong Kong, 4th edn (Say Goo and Alice Lee)

Land Law in Hong Kong, 4th edn
Say Goo and Alice Lee
Lexis Nexis
August 2015, 922 pp.
Description: Since the first edition, Land Law in Hong Kong has emerged as the leading work on the subject in Hong Kong. The text explains key concepts of property law and the conveyancing process. It covers all essential topics, including major forms of acquisition, the protection of ownership or interests in land, leases, licences, easements and mortgages. 
     This book contains extracts from numerous sources including judgments, academic writings and statutory provisions which focus on the core rationale behind the law and provide a convenient reference. The new edition takes into account recent important legislative changes and cases.  Table of Contents: Chapter 1 Tenures, Estates, Land and Property, Chapter 2 Sale of Land, Chapter 3 Proprietary Estoppel, Chapter 4 Trusts, Chapter 5 Co-Ownership, Chapter 6 Limitation Ordinance and Adverse Possession, Chapter 7 Priority, Chapter 8 Enforcement of Restrictive Covenants and Deeds of Mutual Covenant, Chapter 9 Leases, Chapter 10 Leasehold Covenants, Chapter 11 Licences, Chapter 12 Easements, Chapter 13 Mortgages, Chapter 14 Successive Interests, Chapter 15 Rule Against Perpetuities, Chapter 16 Deeds of Mutual Covenant and Multi-storey Building Management.

Singapore International Commercial Court's First Case

Professor of Legal Practice, Justice Anselmo Reyes, is hearing the first case in the Singapore International Commercial Court along with international judge Vivian Ramsey from England and Justice Quentin Loh, presiding. The Straits Times reports that in this case "BCBC Singapore, a wholly owned subsidiary of Australian company Binderless Coal Briquetting Company, is seeking damages from Indonesian company Bayan Resources TBK", arising from "alleged breaches of a joint-venture pact for the application of a patented technology to produce and sell upgraded coal from East Kalimantan in Indonesian Borneo".  Click here to read the full news report from the Straits Times.

Farzana Aslam on Domestic Helpers' Day Off (SCMP)

South China Morning Post
21 November 2015
Three letters have been published recently on the subject of where and how migrant domestic workers spend their days off.
     The tone that has been used throughout this series of letters is polarising, patronizing, and problematic. The latest has the letter writer suggesting that the Hong Kong government provide training courses in community centres or city halls. The rationale being: "This will prevent them from mixing with the wrong company, which most of Hong Kong employers are afraid of…"
     The writer goes on to argue, "nowadays it is not uncommon for maids to have to look after family members with certain health conditions, such as Alzheimer's disease … In such cases, professional training courses can be offered to the helpers, who often have no experience in looking after people with such conditions. Wouldn't this be a more meaningful way for helpers to spend their days off, rather than mingling with other helpers?"
     Really? Yes, there are many migrant domestic workers who choose to congregate in Central and other urban areas on their day off. But, then again, there are many Hong Kong residents who also choose to spend their day off in Central and other densely populated areas of the city.  Click here to read the full article.

Tuesday, November 24, 2015

Can Public Interest Litigation Protect the Natural Environment of Hong Kong? (Karen Kong)

Hong Kong Lawyer
November 2015, pp. 32-37
With the rapid increase in major development projects and cross-border infrastructure in Hong Kong, striking a proper balance between economic growth and environmental conservation has become an increasingly challenging task. There is a constant battle between different stakeholders on environmental protection issues.
     When an agreement cannot be reached through the legislative and executive channels, people have resorted to taking the issues to the court. Landmark environmental judicial review cases in recent years include: Harbour Reclamation (2004), Hong Kong-Zhuhai-Macau Bridge (2011), Municipal Wastes Incinerator at Shek Kwu Chau (2014), Artificial Beach in Lung Mei (2014), and the upcoming Airport Third Runway (2015). Such litigation initiated by environmental activists is often referred to as Environmental Public Interest Litigation (“EPIL”).
     EPIL is controversial because many believe that environmental controversies should be dealt with through the legislative and the executive branches, not in the court room. EPIL critics argue that the court should not be a forum to debate policy questions.
     However, it is submitted that, despite its limitations and constraints, EPIL still has an important and legitimate role to play in pursuing sustainable development, in view of a political system that often fails to adequately channel the views of the public to the government... Click here to read the full article.

Tuesday, November 17, 2015

New Books: International Perspectives on Disputes about Children and Child Protection (2 Volumes)

International Perspectives on Disputes about Children and Child Protection Collected Essays on Parental Responsibility and Children’s Dispute Resolution (Vol.1)
Edited by Katherine Lynch and Anne Scully-Hill
Chinese University Press
2015/11, 248 pp.
Description: The essays in Volume 1 focus on the substantive law relating to the child-parent relationship in terms of custody and access and on procedural frameworks adopted around the world to resolve disputes arising between parents in relation to their children. The first group of essays offers a comparative analysis of the paradigm shift occurring in post-divorce child law away from notions of custody, care and control to that based on “parental responsibility” in diverse jurisdictions such as England, Hong Kong, New Zealand, China and Europe. In the second section, essays focus on the procedural framework within which disputes relating to parenting and care of children post-divorce may be resolved, with particular focus on the development of specialized children’s dispute resolution procedures in various jurisdictions. The final essays highlight the progressive work of the Hong Kong Judiciary in introducing many procedural reforms in family law and children’s dispute resolution (with many involving a greater use of ADR processes), but also lament the lack of legislative reform in family justice. Volume 1 concludes by focusing on the need for greater empirical research and collection of data to allow for better evidence-based and informed policy making in family justice and child law reform in Hong Kong.

Edited by Katherine Lynch and Anne Scully-Hill
Chinese University Press
2015/11, 236 pp.
Description: The essays in Volume 2 provide insights on the serious problems of child abuse and child sex trafficking in Hong Kong and internationally and focus on the need for effective child advocacy and protection. The first group of essays discuss the incidence and prevention of child abuse and child sex trafficking and highlight the urgent need for more empirical research and quantitative data to gauge the real extent of child abuse and to help calculate the huge financial costs of child maltreatment to society. The need for a coordinated multi-disciplinary community based approach to preventing and treating child victims of abuse and sex trafficking is discussed. The consequences of emotional abuse of children in high conflict separation and parental alienation cases are also considered. The essays in the second section focus on parental responsibilities, empowering children and effective child advocacy. The inappropriateness of a “rights based” discourse for matters of parents and children is analyzed, stressing the new paradigm for parent child relationships reframed as “parental responsibilities”. Allowing children to express themselves and to directly participate in proceedings involving them is discussed. Volume 2 concludes by focusing on the need for effective child advocacy and policy formulation through the appointment of independent Children’s Commissioner in Hong Kong.
     Click here to view the table of contents from both books.  To follow the impact of the Children's Issues Forum, click here.

Terry Kaan on Embryo Freezing (China Daily Interview)

Frannie Guan
China Daily
4 November 2015
The unyielding demands on the city’s workers — the sometimes "notorious" work ethic that fuels the city’s fast pace — is a significant factor contributing to a future of economic decline and a shrinking population, say experts. 
     Yip Siu-fai, a non-official member of Hong Kong’s Steering Committee on Population Policy, points to the city’s notoriously low fertility rate (1.234, 2014), and says the city’s failure to reach the long sought-after, work-life balance is one of the leading causes. 
     The low fertility rate doesn’t mean Hong Kong women don’t want to have babies, says Yip, but they are putting it off. Some are turning to reproductive technology, delaying pregnancy until past their normal reproductive years, up to age 35. Experts caution, however, that there is a limit to how far technologies can help stretch late motherhood...
     Egg freezing is a leading example of advanced reproductive technology, used worldwide to help women preserve their eggs for future pregnancies. Chinese actress and film director Xu Jinglei made news when at 41 she traveled to the United States to have her eggs frozen. The Chinese mainland bans the practice for single women.
     The case triggered public reaction. The loudest voices were those who believe it is a woman’s natural right to have her eggs frozen. They argue that the government should not interfere with family planning at that level. Those who oppose the practice argue that despite the advancement of technology, the success rate of egg freezing is much lower than that of embryo freezing, as eggs, having high water content, are more difficult to freeze...
     "Egg freezing arrests time for the eggs, but it does not freeze time for the mother’s fertility and overall health. The mother continues to get older," said Terry Kaan Sheung-hung, co-director of the Centre for Medical Ethics and Law at the University of Hong Kong. "If we think about the right of women to have a child, we should also consider the interests of the child." He contended that it is to the greater benefit of the child to be born to a relatively young couple, than to couples in their late 40s... Click here to read the full article.

Monday, November 16, 2015

Special Needs Children Awaiting Adoption in Hong Kong (HKFP)

Human Rights in Practice
Hong Kong Free Press
11 November 2015
November 9 has been designated as World Adoption Day. The event, which is only two years old and has yet to be recognised by the UN, aims to raise awareness about adoption and to celebrate adoption worldwide.
      Adoption is more common in Hong Kong than many people may realise. According to statistics from the Social Welfare Department, at the end of June of this year the department was handling over 200 adoption applications. In 2015 alone, over 60 children were matched with families.
     However, despite the large numbers of children who are successfully adopted, there remains a sizeable number of children in Hong Kong who are still in search of permanent loving families to care for them. The majority of waiting children are those considered “hard to place,” including children with special needs, older children, or children who are part of a sibling group.
     As of June of this year, around 80 children were still waiting to be adopted, and 50 of these were children with special needs. A group of law students at the University of Hong Kong (HKU) has received a unique opportunity to work on real life legal issues affecting local children.
     These students are working closely with the local partner organization, Mother’s Choice, a non-profit organization that provides support for young girls facing crisis pregnancy and care for children in need of a permanent home. The work has given them an eye-opening experience into this often hidden side of Hong Kong. Through their ‘Human Rights in Practice’ course, the students are assisting the NGO by undertaking research into the laws and issues around adoption, foster care, and children in need of care, not only in Hong Kong, but also internationally.
     There is growing awareness around the issue of special needs children in Hong Kong, but the problem is still one that needs to be addressed. One of the HKU law students participating in the class, Rebecca Morrison, reported being surprised by this trend and the difficulties faced by children with special needs. “More awareness is needed to reduce prejudice and promote acceptance of the need to find a stable home in Hong Kong for all children, regardless of their age or disability,” Morrison said.
     This trend is also true worldwide; an older child or one with special needs may struggle the most to find willing adoptive parents. As a result, these children often grow up in institutions or foster care.
     Growing up in institutional care has serious consequences for children’s development. Studies have shown that children who grow up in institutions rather than a loving home environment are more likely to suffer from poor physical development and lifelong physical, social, and psychological problems. The harm caused by institutional care inevitably falls not only on these children, but on society as a whole. Children who grow up in institutional care are statistically more likely to enter the criminal justice system or rely on social welfare services later in life.
     Through the course, the law students have been given the opportunity to delve into these complex issues and to conduct in-depth research on the laws protecting children in Hong Kong. “There is some good law already on the books, but more can be done to strengthen the adoption system and legal protections for children. Hopefully, after the course and working with Mother’s Choice, we’ll become stronger advocates for Hong Kong’s children, use our legal knowledge to support local families, and inspire others to do the same,” the students said.
     Human Rights in Practice is an experiential learning-based course at the University of Hong Kong Faculty of Law taught by Part-time Lecturer Lindsay Ernst, with the assistance of legal fellows Jennifer Cheung and Stephanie Persson. 

Saturday, November 14, 2015

Hualing Fu Interviewed on the Latest Arrests in China's Crackdown on Corruption (INYT)

Javier C Hernandez
International New York Times
11 November 2015
BEIJING — President Xi Jinping’s sweeping crackdown on corruption has claimed senior officials in China’s two largest cities, the latest indication that Mr. Xi’s effort to consolidate power and sideline political enemies shows no signs of abating.
     The officials included Ai Baojun, 55, a vice mayor of Shanghai who oversaw a prominent economic zone, and Lu Xiwen, 60, a senior Communist Party official in Beijing...
     “The tragedy of the authoritarian regime is that you have leaders in place, but you don’t have your own team in place,” said Fu Hualing, a professor of law at the University of Hong Kong. “You need to spend your entire term to make room for your supporters so you can carry out your policies.
     Mr. Fu said Chinese leaders should focus on putting in place a permanent system to guard against corruption that is shielded from political whims... Click here to read the full article.

Sherif Elgebeily Interviewed on Magna Carta (RTHK "The Works")

To commemorate the 800th anniversary of Magna Carta, and its visit here to Hong Kong, Sherif Elgebeily (Assistant Research Officer, CCPL) was recently interviewed by the RTHK for their programme “The Works”, where he discussed the relevance of Magna Carta to the Basic Law of Hong Kong. The video is available here.
Programme Description: The 800-year old Magna Carta or “Great Charter” signed by the highly unpopular King John of England in 1215 as a solution to a political crisis under considerable pressure from a group of rebel Barons. The charter established for the first time the principle that everybody, including the king, should be subject to the law. Not many of the specific provisions of the Magna Carta are in law today, but the principles underlying it remain a cornerstone of British political life and the Common Law system, and its influence has spread around the world. From Wednesday to Saturday this week (11-14 November 2015), one of just four surviving copies of the Magna Carta is on show in Hong Kong. 

Friday, November 13, 2015

Henry Litton on Six Basic Rules to Avoid Mindless Parroting

“Psittacosis” is a viral disease of parrots. This gives rise to the condition called “psittacism”: mindless parroting.  This, alas, seems to have infected some in the magistracies and district courts.
      Pick up a Finding of some of the magistrates, or Reasons for Verdict of a District Judge, and you would find mindless parroting: “I remind myself that the burden of proof is on the prosecution, that the defendant is not required to prove anything, that the prosecution has to prove the case beyond a reasonable doubt ... ”, or “The court in R v Ghosh said … and in R v Turnbull said that …”, formulaic verbiage which does nothing to resolve the issues and what Lord Roskill once remarked to counsel (not me) in the course of a hearing in the Privy Council as “words used by trial judges who think that would make their judgment appeal-proof”.
      If magistrates and District Judges can be prevailed upon to simply cut out all the verbiage, this would immediately make their findings much shorter – and, hopefully, more focussed on the real issues.
      If there is one formula for reform in the trial courts, I would say that adherence to SIX BASIC RULES would go a long way to doing that:
RULE 1  First define the issues.  It can be as simple as “This is a charge under s. 49 of the Road Traffic Ordinance namely, unlawfully tampering with a vehicle". 
RULE 2  Look first at the facts as would a common man. Then resolve the issues as a judge. This, after all, is how the criminal process in the common law first evolved. The jury was the sole judge of facts, the trial judge the sole judge of law. The jury would not have heard of R v Turnbull or R v Ghosh
RULE 3  Junk the verbiage. No judge in a criminal case needs remind himself that the burden of proof lies on the prosecution. The question is not whether the judge remembers the basic rule, but whether he in fact applied it. This is seen in the way he resolves the issues – not in the parroting of empty formulae. 
RULE 4  Judge the issues, not the personalities. The most honest man in the world is capable of dishonesty; the most cowardly can rise to heroism. Normally, once the scene is set and the inherent probabilities laid bare, the case resolves itself. Subjective evaluation such as whether a witness is an “honest person” and whether his demeanour is “candid” or “shifty” should have no place in a court of law. Take the man sweating in the witness box: Is he under the pressure of lies, or is he striving to tell the truth? Or is he just hot? Or not well? 
RULE 5  Apply the law.  Do not “discuss” it. I do not know why, in the past decade or so, trial judges (including the High Court) thought that, in giving judgment, they somehow needed to “discuss” the law. In most cases, the law is straightforward. All that is required is to apply the law. In the course of so-called discussion, often the judge loses sight of the real issues. 
RULE 6  Be brief. So often a magistrate tells you what PW1 said, what PW9 related, but does not say what his findings are, relevant to the issues. Recitation of the testimony of witnesses is not a finding of fact.
If trial courts would simply apply these six basic rules, the rational basis of the common law would become apparent and people would not shake their heads in bewilderment, wondering what the law is all about. It is a highly dangerous state of affairs, cutting away at the foundation of the Rule of Law.  Written by Henry Litton, Honorary Professor.

John Lowry on the 'Convoluted and Confused' State of Insurance Fraud Law (LQR)

"Insurance Fraud: the 'Convoluted and Confused' State of the Law"
John Lowry and Philip Rawlings
Law Quarterly Review
2015, Vol. 131 (November)
Abstract: The piece examines from a critical standpoint the approach of insurance contract law to fraudulent claims, with particular reference to fraudulent devices. In English and HK law the remedy is forfeiture of the whole (including any legitimate aspects) of the claim, a form of 'penal non-damages'. The article contrasts the insurance law position with other civil law remedies, for example grossly exaggerated personal injury claims. It also assesses, inter alia, whether the civil courts are an appropriate vehicle for punishing such behaviour.  Will soon be available on Westlaw.  Contact the authors for a copy.

Thursday, November 12, 2015

Role of Culture in Intimate Partner Violence (Video of CCPL Event)

     This seminar, hosted by the Centre for Comparative and Public Law at the University of Hong Kong, is the sixth and final event in the Economic and Social Research Council Seminar Series, and will focus on cross-cultural strategies and approaches to understanding and addressing Intimate Partner Violence. The effectiveness of the frameworks and institutional capacities for protection against domestic violence are predominantly dependent on individual user capacities and their internal cultural response systems, which either drive or discourage certain courses of action. Findings from multiple studies now confirm that women of colour, immigrant women, and those categorised in other minority status groups such as persons with disabilities tend to be most vulnerable to becoming entrenched in situations of violence. The failure to account for and consider the internal and external conflicts in value systems which these predominant frames of characterizing and addressing violence represent for the victims concerned, creates a critical gap in the provision of effective redress against violence for particular groups of women. This seminar, therefore, brings together experts to examine approaches to cultural mapping in the context of developing effective responses to intimate partner violence to assist victims and perpetrators by locating knowledge and strategies in the lived realities of ethnically and culturally diverse victims and perpetrators of violence. Details of previous ESRC seminars can be found here.  The playlist of individual presentations arranged by speaker and open discussions can be found here.

Benny Tai Writes "An Essay that Changes Hong Kong"

A night in mid-January of 2013
Lights are out. Lying in pitch darkness, my mind is still swiveling madly like a spinning engine. Before climbing to bed, I have decided the topic of the article for Economic Journal next week is Occupy Central. After completing the framework and the introduction, I plan to write the substantive part the next day as usual. When I turn off the computer, I still have no idea what to fill in at that very moment.
      After the march on the New Year Day of 2013, a number of protesters occupied the street in Central ending in the arrest of Long Hair for unauthorized assembly. All of a sudden, a thought springs up in my mind: What happens if a lot more protesters occupy the streets of Central? C.Y. Leung, the newly selected Chief Executive is going to deliver his first policy address in the coming Wednesday. I don’t think he will dare to touch the issues of political reform as it is so controversial. He might want to first focus on some livelihood concerns with the hope of enhancing his popularity. We cannot let him go so easily.
     By putting these two considerations together, the idea of Occupy Central is born... Click here to read the full article by Benny Tai in "An Essay that Changes Hong Kong", Democracy Chronicles, 7 November 2015.

Wednesday, November 11, 2015

Renovating the Hong Kong Revenue Regime (Report on International Conference)

The Taxation Law Research Programme (TLRP) at HKU ran the Fourth TLRP International Conference recently, on Saturday, 31 October 2015. The conference title was: Renovating the Hong Kong Revenue Regime. The convenor of the conference, Richard Cullen has compiled a report on the event. One highlight of the conference was the review of significant new tax policy initiatives within Mainland China. Conference presenters from the Mainland noted how these changes present possible major new opportunities for the HKSAR as China moves towards an increasingly capital-export based economy. Other comments suggest, however, that Singapore may be well placed to benefit also – especially if the HKSAR continues to experience significant (political) difficultly with new, macro-policy implementation.
THE REPORT
RENOVATING THE HONG KONG REVENUE REGIME

INTRODUCTION
The Taxation Law Research Programme (TLRP) in the Faculty of Law held its Fourth International Conference, entitled Renovating the Hong Kong Revenue Regime on Saturday, October 31, 2015.
     The TLRP was established in 2007, within the Faculty’s Asian Institute for International Financial Law (AIIFL), to foster general and comparative Taxation Law and Policy research focused, above all, on the HKSAR and Mainland China. The TLRP is, in many respects, built upon the foundations of advanced Tax Law research first introduced in Hong Kong - at HKU - by the late Professor Peter Willoughby in the 1970s, supported, in particular, by Professor Andrew Halkyard (now an Adjunct Professor in the Faculty).
     The conference was opened by Professor Gary Meggitt, Director of AIIFL.

HISTORICAL CONTEXT
The conference title used the term Revenue Regime (RR) rather than “Tax System” because Hong Kong has, ever since 1842, relied notably on non-tax sources of revenue. The Hong Kong RR has, in many respects, proved to be remarkably successful for over 170 years resulting a in a low tax, simple system, unique within the developed world. So successful, in fact, that the HKSAR typically holds savings of up to 2 years total Government expenditure within its Fiscal Reserve Fund. 
     When British Hong Kong was established, formally, in 1842, the primary source of public revenue was meant to be derived from the retail sale of opium, above all to the rapidly growing Chinese community. Briefly, the new Hong Kong Government planned to establish such a revenue stream by selling monopoly opium retail rights to the highest bidder - which was the model successfully deployed in the slightly earlier British Singapore Colony. Hong Kong also copied the Singapore free port model (thus excluding customs duties as a revenue source).
     In fact it took around 40 years before opium income became a serious contributor to public revenues in Hong Kong. This proved not to be a crucial problem, however, as revenues from (leasehold) land sales and other land-related revenues (including lease conversion premiums) more than made up for opium-income shortfall.
     From 1842 to this day, the RR in Hong Kong has benefitted from revenues resulting from Government land sales and other major land-transaction revenues to an extent found in no other comparable jurisdiction.
     The conference title also stressed “renovation” of the HKSAR system. For the reasons just briefly outlined, there is a widely shared view that the RR is not in need of radical or wholesale reform - especially given the levels of great complexity many years of such reforms have produced in Tax Systems right across the developed world.
     As it happens, the HKSAR Basic Law also spells out, in Articles 107 and 108: that Hong Kong shall strive to adhere to the low tax policy of British Hong Kong; and that it should keep a rein on public expenditure and avoid deficit financing. Article 106 additionally stipulates that the Mainland and HKSAR revenue systems must be kept strictly separated.

CHALLENGES & RESPONSES
Past performance is no guarantee of future, long-term fiscal robustness, however. This is especially so, given the challenges facing the HKSAR. These include an ageing population - combined with prominent expectations related to education, career opportunities, health care, housing and environmental improvement (for example). 
      Associate Professor Wilson Chow (HKU) presented an analytical review of the findings from a preliminary survey of attitudes in Hong Kong towards the existing RR, perceived (revenue-sensitive) public policy concerns and possible renovation options. Professor Richard Cullen (HKU) followed up this demonstration with a short summary of certain discussion topics.
      A lively debate followed centred on the issues raised in the presentations, “bookended”, as it were, by those stressing the need for the HKSAR to take the greatest care to avoid the trap of advanced-welfarism (seen in many developed countries) – and by those stressing the need for the RR to be put to work far more seriously to address the striking community inequalities within the HKSAR.
      A further highlight of the conference was the special contribution made by a range of leading Mainland Tax Policy scholars from Xiamen University (Professor Yang, Bin; Professor Zhu, Yansheng and Dr. Doreen Qiu, Dongmei), Sun Yat Sen University (Prof. Yang, Xiaoqiang) and the Haikou College of Economics (Ms. Li, Xin). These contributions made two things clear: (a) how very rapidly Tax Policy development (and implementation) is advancing in the Mainland; and (b) how these moves towards a more developed (and internationalized) system present some special, interaction opportunities for the HKSAR. These developments are unfolding within China’s relatively new, “One Belt, One Road” outward-focussed, economic development model.
     The overall themes and the robust tone of the conference were established by the, keynote speakers, Professor Adrian Sawyer (University of Canterbury, New Zealand) and Professor Nolan Sharkey (University of Western Australia) – two of the leading Tax Law & Policy academics in Australasia. They each provided a series of first rate comparative insights. 
      Nolan Sharkey’s presentation (which combined an informing review of relevant Tax Policy developments in Singapore and China) raised an important point which resonated with observations made by the Mainland scholars. The EU and the USA have found it beneficial to retain internal, separate low-tax / low regulation jurisdictions (Luxembourg (EU) and Maryland (USA) for example). Beijing’s overall positive view of the HKSAR as a low tax / low compliance cost regime of significant use to China as its economy modernizes towards a capital-export model fits well with this established approach. 
     As Professor Sharkey noted, this Mainland policy stance could indirectly also benefit Singapore. Singapore has a strong tradition of high integrity, responsive institutions. It is fundamentally connected at all levels to the globalized economy and it is, overall, well trusted by Beijing. Singapore’s competitive Tax Regime thus may increasingly operate within a “de facto” or “alternative Hong Kong” zone. 
     Unfortunately, the great difficulty experienced with implementing major new policies in the HKSAR over the last several years could stand in the way of Hong Kong taking best advantage of these Mainland Tax Policy changes. Thus, the potential opportunities highlighted by the Mainland scholars at the conference could yet be taken up more effectively by Singapore. 
     A central “take-away” from Adrian Sawyer presentation related to how New Zealand’s responded to its near-bankruptcy experience of the 1970s: by undertaking a highly successful, major re-setting of its Tax System. This level of wholesale reform remains unmatched, within the last several decades, anywhere else in the developed world.
      Hong Kong, fortunately, has never flirted with bankruptcy – on the contrary. Yet there are many sound lessons to be drawn from the New Zealand experience in terms of forging a constructive renovation consensus.
      Taxation Systems, for many years, have largely been regarded in an instrumental way. That is, they are seen as a primary, multi-faceted tool of government policy implementation, above all. Most modern Tax Policy research explicitly or implicitly adopts this perspective. But Taxation Systems can also properly be viewed as part of the crucial political foundations of any given jurisdiction (the work of Prof. Xu, Yan (The Chinese University of Hong Kong – formerly at HKU) has demonstrated this most clearly with respect to Mainland China, for example). This conference made it plain that the RR in the HKSAR is both: a key instrument of policy implementation; and a pivotal part of Hong Kong’s unique political-economy identity.

POSTSCRIPT
Apart from the presenters noted above, the conference attracted academic participants from a range of other Hong Kong and offshore institutions, including: The Chinese University of Hong Kong, Lingnan University, Hong Kong Shue Yan University, The University of Otago in New Zealand and The University of New South Wales and Monash University in Australia.
      It was particularly pleasing to see a strong delegation of students (studying Tax Law) from Sun Yat Sen University (in Guangzhou) at the conference. Students from HKU and other universities also attended. 
      One of the many active participants was Mr Yeung, Wai Hong, a publisher with Next Media, who is an economist by training. He noted after the event that: “The conference you organized should be a required assignment for every practitioner in my business”.
      The conference concluded with an informal dinner on the Saturday evening for speakers and others involved in the conduct of the conference - followed by yum cha on the following day at the Jumbo Floating Restaurant (JFR) in Aberdeen. In both cases, conference topics dominated the conversation – though in more relaxed circumstances. The accompanying photo shows members of the conference group waiting for the water-taxi back to Aberdeen, outside the JFR.  Power Point Slides from the conference can be found on the TLRP Website.

Susan Finder Writes on the People's Liberation Army under the Law

"Ruling the PLA According to Law: An Oxymoron?"
Susan Finder
China Brief
Vol. 15, Issue 21, 2 November 2015
One of the least transparent and least understood parts of Xi Jinping’s program to “rule the country according to law,” announced in October, 2014, is the creation of a body of military law with Chinese characteristics. Is it any more than the slogan of “Ruling the Military According to Law and Ruling the Military Strictly” (依法治军从严治军)? This article will answer that question and describe what is known about the reforms thus far.
     For over ten years, within the confines of academic discourse, Chinese military legal officials—serving and retired—have pointed out weaknesses in Chinese military law. As they describe the current military legal framework, military law and military legal institutions are isolated from their civilian counterparts, legislation underpinning basic military legal institutions is missing, commanders think their word is law, and military courts and prosecutors lack professional autonomy and security. [1] These concerns remained the subject of academic discussion until late 2013. [2]
     The high level policy decision to modernize military law was first flagged by the Central Committee of the Communist Party during the Third Plenum in 2013, in the Decision On Several Major Issues Of Deepening Reform (中共中央关于全面深化改革若干重大改革的决定). The Central Committee set out more details concerning its policies for military law reforms during the Fourth Plenum in October, 2014 in the Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law (中共中央关于全面推进依法治国若干重大问题的决定) (Beijing Morning Post, October 29, 2014; Xinhua, October 28, 2014). In the Fourth Plenum Decision, the Party highlighted the importance of creating a complete body of military law with Chinese characteristics and stressing the Communist Party’s absolute leadership over the Army as a core and fundamental requirement for ruling the military according to the law. The Decision additionally called for the overhaul of all aspects of military law, as well as educating officers and soldiers that following the law is part of the new normal in the PLA (Xinhua, November 15, 2013)... Click here to read the full article.  Susan Finder is Adjunct Professor in the Faculty of Law and Editor of the Supreme People's Court Monitor blog.

Saturday, November 7, 2015

Dean Hor Interviewed by Innocence Project Singapore

Prior to his current appointment as Dean, Professor Hor was a Professor of Law at the National University of Singapore’s Faculty of Law where he taught, researched, and published extensively in the areas of Criminal Law, Criminal Procedure, Constitutional Law and Evidence Law.
     Professor Hor served as the Chief Editor of the Singapore Journal of Legal Studies and is a member of the editorial boards of the Singapore Academy of Law Journal and the Asian Journal of Comparative Law. He was also a consultant to the Ministry of Law and the Criminal Practice Committee of the Law Society of Singapore. Internationally, Professor Hor has also been appointed Distinguished Visitor at the University of Toronto’s Law Faculty and Visitor at Oxford Centre for Criminology.
     During this exclusive interview, Professor Hor candidly shared his views on the Innocence Projects in different jurisdictions, specific law reforms, and his experience serving as the Dean of the HKU’s Faculty of Law.

THE INNOCENCE PROJECT (SINGAPORE)
Q: What were your thoughts when the idea of setting up IP(SG) was mooted to you back then? What made you believe in this project?
A: This project was first conceived when a student, Audrey, who went to the United States for her undergraduate exchange programme came to know of the work of Innocence Projects (IPS) in the US. When she returned, she emailed a few Criminal Law Professors at NUS, including myself, to set up an Innocence Project in Singapore, known today as Innocence Project (SG). I was prepared to help but at the same time, I was also prepared to see the Project fail. There were concerns that setting up IP(SG) could potentially be construed as an insult to Singapore’s criminal justice system which prides herself to be reliable and trustworthy.
     However, the merits of this project could not be denied. In fact, which jurisdiction can say that there would be no merits to it? It can only be a good thing. The question, however, was whether this project is practically achievable within this political climate where we have a good and competent Government but any mistakes in convictions could be seen as an insult to that.
     As such, we tried to engage the Minister for Law and the Attorney-General Chambers from the outset. It took a few years and a few changes of IP(SG) heads as it was a potentially sensitive matter. It was a long process, but to-date it has since been set-up. Now, it is a question of pushing IP(SG) forward...

Q: Do you have plans to similarly bring the Innocence Project network into University of Hong Kong (“HKU”)?
A: First of all, it was the students who brought the Innocence Project to Singapore and I believe this is a very good initiative because students have more faith and idealism than practitioners and academics. I will personally support such a project if a student brings it up in HKU.

THE CRIMINAL JUSTICE SYSTEM IN SINGAPORE & HONG KONG
Q: In Veeramani Manikam v Public Prosecutor [2015] SGHC 201 (“Veeramani”), Chan Seng Onn J identified several lapses that happened at trial and the investigation process that led to the accused being wrongly convicted. These lapses include the Investigating Officers’ omission to investigate and verify the accused’s statements. The risk of wrongful convictions in Singapore is real. What are your views on Veeramani?
A: I remembered reading about this case in the Straits Times. Over the years, some judges do come up with judgments which are explicitly or implicitly critical of the way that law enforcement offices have behaved. For instance, in Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32, V K Rajah JA (as he then was) was critical towards the investigations process as the police officer failed to comply with the rules. Such irregularities have been happening in Singapore, and it is necessary for judges, once in a while, to distance themselves away from law enforcement and demonstrate their neutral and independent stance in their judgments... Click here to read the full interview.

Friday, November 6, 2015

Alexa Lam on the Internalisation of the RMB (J of Reg & Risk, N Asia)

"Looking ahead as the Renminbi internationalises"
Alexa Lam
Journal of Regulation & Risk, North Asia
Vol. VI, Issue 4, Winter 2015, pp 79-85
The internationalisation of a currency refers to the process where its use has expanded beyond the borders of the jurisdiction where it is issued, and markets around the world have come to accept the currency as a unit of account, a medium of exchange and a store of value.
     This paper will examine important prerequisites for the Renminbi (RMB) to succeed as an international currency, a likely roadmap from here on and the role of offshore RMB centres. The last section of this paper offers some suggestions on how Hong Kong could compete in the new paradigm of multiple offshore RMB centres around the globe.
     After more than 30 years of rapid growth, China is now the world’s second largest economy. A persistent and enormous trade surplus and foreign capital inflows have led to a sharp increase in China’s foreign reserves, causing uncomfortable pressure due to a substantial international payment imbalance.
     The risk of “hot money”has become a difficult subject, one invariably linked to the need for a market mechanism to set RMB exchange and interest rates, and expand two-way flows of capital. In 2009, China started to promote the cross-border use of RMB in a calculated manner, starting with foreign trade. 
     This is very much a broad-fronted initiative designed to improve the terms of trade and the balance of international payments, to lower exchange rate risk in international trades and official reserves, and to maintain control over macroeconomic measures and monetary policy... Click here to read the full article.

Tuesday, November 3, 2015

New Book: General Principles of Hong Kong Law, 3rd Edition (in Chinese)

GENERAL PRINCIPLES OF HONG KONG LAW (3RD EDITION)
(IN CHINESE)
Since the publication of its first edition in 1999, The General Principles of Hong Kong Law (in Chinese) has been well received by readers. The 2nd edition of the book was published in 2009. The 3rd edition has now been published. It is co-edited by Professors Albert Chen, Johannes Chan and Alice Lee of the Faculty of Law, HKU, and solicitor Mr Jonathan Cheung.
     A book launch for this book will be held at 4.30 pm this Wednesday, 4 November 2015, at the University Bookstore, Centennial Campus, HKU.
     At the book launch, the editors of the book will introduce the objectives and content of the book, and share their views on relevant developments in the legal system and Rule of Law in Hong Kong. The event will be conducted in Cantonese.
     All are welcome.  Joint Publishing (Hong Kong) Company Limited.  

Monday, November 2, 2015

Eric Cheung and HKU Legal Clinic Profiled in South China Morning Post (2 Nov 2015)

"A Lawyer with an Eye on Injustice"
Stuart Lau
South China Morning Post
2 November 2015
As soon as University of Hong Kong principal law lecturer Eric Cheung Tat-ming got the files of Law Yat-ting earlier this year, he could sense something was wrong: how could Law be jailed for a month and a half simply for closing the door of a stranger's car?
     "When we talk about tampering with a vehicle [of which Law was convicted] it usually refers to malicious acts like using a screwdriver to try to open a door or damaging the tyres," Cheung said.
      Initiating a case in the Court of Final Appeal is not easy - let alone winning it. After being found guilty by both a magistrate and the High Court, Law sought help from a lawyer who eventually transferred the case to Cheung, the director of clinical legal education at HKU's faculty of law.
Source: SCMP
      The top court eventually acquitted Law on the basis that his act did not amount to tampering, but Cheung questioned whether it would have been interested in Law's case at all if the Department of Justice had not been willing to accept the mistake in the first place.
     Cheung lamented that the top court had set the bar too high for accepting criminal cases, and it all too easily turned down applications without even a hearing.
     "For applicants who have a legal representative, the court should give them a final chance to deliberate before the judges to try to convince them that it's worth an appeal," Cheung said. "Lawyers after all uphold professional standards and do not allow themselves to engage in a case if it is not arguable."
     Cheung is currently teaching full time at HKU's law school, his alma mater where he graduated in 1986 among a batch comprising students who would later become big names such as Secretary for Justice Rimsky Yuen Kwok-keung, Director of Public Prosecutions Keith Yeung Kar-hung, Occupy Central co-founder and HKU legal scholar Benny Tai Yiu-ting and former Ming Pao chief editor Kevin Lau Chun-to... Click here to read the full article.

Sunday, November 1, 2015

New Scholarship by Professor Roda Mushkat

"Reconfiguring China’s Environmental Governance Regime: A Highly Complicated and Decidedly Uneven Journey"
Vol. 2, 2015, pp 29-59 
Abstract: In terms of its size, the Chinese economy has climbed to the top layer of the global pyramid and is currently positioned just behind its American counterpart, which it is commonly expected to overtake by the end of the present decade. This achievement is the product of a relentless drive forward spanning over three decades. It has not been a smooth ride in all respects because, inter alia, the “economic miracle” has been enormously costly from an ecological perspective. Wide-ranging 2014 adjustments to the Environmental Protection Law seek to remedy this situation. They constitute a necessary but — as matters stand, their unmistakable significance notwithstanding — not a sufficient condition for fully realising the goal of ecological modernisation, which requires broader and deeper institutional reconstruction.

Vol. 6, 2014, pp 229-287
Abstract: Comparative legal analysis, which was once deemed to be an esoteric and peripheral academic and professional activity, has significantly grown in scope and sophistication. However, its progress has not manifested itself equally across the board. Comparative law still lacks a solid methodological foundation and does not systematically address this gap by borrowing appropriate tools from other disciplines. There is no dearth of predominantly qualitative social science techniques that are suitable for the task. Some are more robust than others but, as the dissection of the Southern China governance regime for combating transboundary pollution illustrates, recourse to even the most rudimentary ones may yield valuable insights.

"The Intricacies of Implementing International Law: A Juxtaposition of Theories with the Actualities of the Sino-British Joint Declaration Regarding the Future of Hong Kong" 
Vol. 31 (2014), 2015, pp 1-65
Abstract: International legal scholarship has developed into a multidimensional enterprise, possessing firm analytical underpinnings, as well as descriptive and evaluative ones. The conceptual element has loomed increasingly large on the research agenda in the past five decades or so. Several new theoretical constructs have emerged and have been brought to bear on a wide-range of relevant behavioral phenomena. Be that as it may, this has been an unbalanced process. The paradigms that have crystallized and have gained currency have not been combined in a genuinely synergistic and flexible fashion. The implementation of the Sino-British Joint Declaration, in a complex and rapidly evolving setting, arguably suggests that this is a notable chink in the analytical chain and that a more broad-based, inclusive, and eclectic approach is called for.

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