Saturday, July 23, 2016

Michael Davis Bids Hong Kong Farewell (SCMP Interview)

"Rights campaigner bids Hong Kong a reluctant farewell"
Jeffie Lam
South China Morning Post
23 July 2016
When Professor Michael Davis landed in Hong Kong from his home in Hawaii to take up a job at Chinese University teaching politics more than 30 years ago, the human rights law expert may not have realised he could not have picked a more fascinating destination for his research interests. Over his three decades in Hong Kong, Davis has witnessed – and participated in – numerous social movements. He took part in protests backing the pro-democracy drive by Beijing students in 1989, the campaign to oppose a ­controversial national security bill in 2003, and the marathon debates on the city’s constitutional reform that eventually triggered the Occupy sit-ins of 2014 among many other movements. Davis, whose ­graduated students have fanned out across the city and political spectrum to pursue careers, will retire from the University of Hong Kong’s law school and move to Washington in the United States this ­summer for a fellowship with the National ­Endowment for Democracy, a non-profit ­organisation. Ahead of his reluctant departure, he shares with the Post his views on stagnant political ­reform, unseen pressures on academia and his love of the city he has spent half his life in... Click here to read the full interview.

Thursday, July 21, 2016

Syren Johnstone Analyses the Tribunal's Decision in Moody's Red Flags Case

"A Red Flag for Hong Kong Credit Ratings"
Syren Johnstone
AIIFL Working Paper No. 18
July 2016
Abstract: In July 2011 Moody's Investors Service Hong Kong issued a report that used a system of red flags to highlight corporate governance and accounting risks in a specified population of listed companies. Although Moody’s did not consider the report a credit rating, the Securities and Futures Commission, and the Securities and Futures Appeals Tribunal in its March 2016 determination, regarded the issuance of it as part of Moody’s regulated activity as a provider of credit rating services. As such, Moody's was held subject to regulatory codes of conduct it was said to have breached, and was consequently disciplined. Moody's has since appealed that determination, which will bring the case before the Court of Appeal. 
     This paper undertakes a detailed legal analysis of the Tribunal’s determination. It suggests the Tribunal’s purposive approach to legislative interpretation is flawed, and its determination impaired by the way the Tribunal has framed the syntax of its reasoning and has conflated important distinctions between credit risk, creditworthiness, credit ratings and the methodology used to produce a rating opinion. Other legislative provisions relevant to the publication of information are reviewed and it is noted there is no lacuna in Hong Kong’s law that would necessitate the approach taken by the Tribunal to address the perceived wrongdoing. Whether the Tribunal’s interpretation of the law is necessary or consistent with the policy intent of the Legislature is queried. 
     The ramifications of a Court of law upholding the Tribunal’s determination are considered. Locally this includes blurring the perimeter around regulated and unregulated activities and the possible creation of an uneven playing field. Of particular significance for Hong Kong’s credit rating industry, it may create uncertainties as to whether Hong Kong would remain an equivalent jurisdiction for the purposes of recognition under European Union regulations. The paper concludes with a brief consideration of the regulatory approach to managing the introduction of a new regulatory regime.  Click here to download the paper.

Wednesday, July 20, 2016

HKU Law Scholars on the 'Confirmation Form' Issue in the Legislative Council Elections 2016

Karen Cheung
Hong Kong Free Press
19 July 2016
Legal scholar and Basic Law Committee member Albert Chen Hung-yee says that there are grey areas in the law regarding the consequences for a Legislative Council election candidate who signs a declaration promising to uphold the Basic Law and then violates it.
     On a Monday RTHK show, Chen discussed a declaration that candidates are required to sign, which promises to uphold the Basic Law and to pledge allegiance to the Hong Kong Special Administrative Region. Chen said that it has not been clearly stated what the legal consequences are if a person signs and then violates the declaration. “Under current laws, there are no clear requirements, so it is a grey area.”
     Chen also said the existing laws do not require every candidate to sign a declaration, so the signature is an administrative arrangement. Therefore, it does not mean that all candidates who do not sign the declaration will not be able to get an effective nomination, he added.
     “It depends on the situation – if one has been advocating for Hong Kong independence and they refuse to sign the declaration… then the electoral officer may question whether the candidate is qualified to run,” Chen said...  Click here to read the full article.

Newswrap, RTHK Radio 3
19 July 2016
An associate dean at the University of Hong Kong’s Faculty of Law, Professor Simon Young, says elections laws make no reference to a form requiring potential Legislative Council election candidates to declare that Hong Kong is part of China. He says the assertion by the chairman of the Electoral Affairs Commission, Mr Justice Barnabas Fung, that it was merely introduced for administrative convenience, tends to play down the issue. Young tells Jim Gould that the form is redundant and has no legal force. Click here to listen to the interview.

Owen Fung & Tony Cheung
South China Morning Post
17 July 2016
At least 10 pan-democrat or independent hopefuls challenged a change to election rules, despite the risk of being disqualified, as the nomination period for the Legislative Council polls in September opened on Saturday.
     The controversial change targeting independence advocates required that candidates, as well as making the standard declaration to uphold the Basic Law, must also have to sign a new form to confirm a clear understanding of the mini-constitution – mainly concerning Hong Kong’s status as a special administrative region of China. Refusal to sign could risk disqualification.
     Pan-democrats complained that the new rules amounted to political censorship and planned to meet the chief of the city’s election watchdog over the matter on Tuesday... Rao said although the Basic Law did not explicitly prohibit independence advocates from running for Legco, “since the mini-constitution affirmed Hong Kong’s legal status, how could it allow a lawmaker to advocate the city’s separation from the nation?”
     But University of Hong Kong law professor Benny Tai Yiu-ting told the Post that candidates do not need to sign the form.
     “Electoral officers do not have the power to invalidate a candidate’s nomination simply because he did not sign the new form,” Tai said... Click here to read the full article.

David Tweed
Bloomberg
15 July 2016
Candidates for Hong Kong’s Legislative Council elections will be required to sign a form saying they understand the city is an inalienable part of China, the latest bid by the government to deter candidates who advocate independence.
     Contenders for in the Sept. 4 vote must declare they uphold the Basic Law, the city’s mini-constitution. They will now need to sign a further form confirming they fully understand the Basic Law articles that detail the city’s position as an administrative region of China, the election commission said on Thursday in a statement.
     “Anyone making a false declaration in the nomination form is liable to criminal sanction,” the commission said.
     “The government is obviously targeting candidates that are running on an independence platform,” said Michael Davis, a professor of constitutional law at Hong Kong University. “Even if someone signs the confirmation acknowledging the government’s interpretation, it would still be subject to question in the courts.”... Click here to read the full article.

Tuesday, July 19, 2016

Michael Davis on Damage Control After the South China Sea Arbitration Award

"Why Beijing should seek damage control following the South China Sea decision"
Michael Davis
South China Morning Post
19 July 2016
It is time to get realistic over the South China Sea arbitral decision. Chinese officials and their supporters have made this case out to be some gross overreaching by the arbitral tribunal constituted under the United Nations Convention on the Law of the Sea.
     A better view is that the tribunal properly exposed some serious violations that China ought to correct both for its own reputation and for the sake of the natural environment. At the same time, it offered a platform for negotiating a reasonable settlement. The following 10 points are worth considering.
      First, we should appreciate that China signed on to the UN convention for good reason. Not traditionally a maritime power, the treaty offered China expanded rights in adjoining territorial seas, exclusive economic zones and the continental shelf, which would be rich in fisheries and minerals. Substantially hemmed in by its neighbours, China surely saw great advantage in embracing such treaty.
     Second, by agreeing to the treaty, China agreed to the associated arbitration that has just taken place. If China refused to appear, the tribunal was required to proceed without it and was bound to consider as best it could what it judged to be China’s arguments.
      Third, by refusing to appear, China waived its right to participate in selecting the five judges for the arbitration... Click here to read the full article.

Saturday, July 16, 2016

Melissa Loja on the Full Significance of the South China Sea Arbitration Award

It is important to bear in mind the underlying theory of the Philippines' submissions in order to appreciate the full significance of the conclusions of the Tribunal in the Final Award of In The Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Final Award, 12 July 2016. According to the Philippines the legal basis of its claims to certain features and waters in the South China Sea is the United Nations Convention on the Law of the Sea (UNCLOS, Articles 76 and 77), not territorial title. For this legal basis to exist the following conditions must obtain:
  1. The features being claimed are found within the Exclusive Economic Zone (EEZ) of the Philippines. 
  2. These features are not encompassed by the maritime zones of any other feature in the Spratly Islands.
  3. These claimed features are low tide elevations.
The Philippines asked the Tribunal to declare that all three conditions obtain and that legal basis exists for its claim to Mischief Reef, Second Thomas Shoal, McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South).
     The Tribunal declared that all the claimed features are found within the Philippine EEZ, although Gaven Reef falls outside by a few metres. It found no feature in the Spratly Islands able to generate an EEZ which would encompass the claimed features. Mischief Reef and Second Thomas Shoal are low tide elevations but McKennan Reef is a high tide elevation; Hughes Reef is a low tide elevation but it forms a single unit with McKennan Reef; Gaven Reef (North) is a high tide elevations; and Gaven Reef (South) is a low tide elevation but it forms a single unit with Gaven Reef (North). 
     The significance of the foregoing findings is that the first condition obtains for all the claimed features, but the second condition obtains for Mischief Reef and Second Thomas Shoal only and not with respect to McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). The third condition obtains for Mischief Reef and Second Thomas Shoal but not for McKennan Reef in relation to Hughes Reef and Gaven Reef (North) in relation to Gaven Reef (South), which are high tide elevations with 12 nautical mile territorial sea. Moreover their territorial sea overlaps with the Philippine EEZ. 
     In effect, the Tribunal found that the Philippines has legal basis to claim Mischief Reef and Second Thomas Shoal but it has no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). Having no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South), the Philippines is out of contention for these features and only China and Vietnam are the remaining claimants. However, in order for China and Vietnam to avail of the foregoing claims they have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award. 
      The Final Award declared that Scarborough is a rock and that fishing on Scarborough is a traditional right of both Filipinos and Chinese fishermen. The Final Award  did not declare that the Philippines owns Scarborough or that its fishermen alone can fish there.  These traditional fishing rights will be preserved no matter the outcome to the future settlement of the territorial dispute over Scarborough. The Final Award did not touch upon any other feature in the Spratly Islands, except to declare them rocks with 12 nautical mile territorial sea. It did not award any major feature to the Philippines.  It is possible that, in relation to Thitu, etc., in the future China and Vietnam will hold the Philippines to the conditions underlying its claim to features in the South China Sea. China and Vietnam might argue that the Philippines is estopped from changing its legal position (and its underlying conditions), especially as the Philippines' claims to all the features arose  from the same act - Presidential Decree 1596 - and invoked the same basis - contiguity or EEZ. However, before they could effect an estoppel against the Philippines in this way, China and Vietnam would have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award.  Written by Ms Melissa Loja, PhD candidate in the Faculty of Law, The University of Hong Kong.

Tuesday, July 5, 2016

New Book: The Integrity of Criminal Process (Hart Publishing)

The Integrity of Criminal Process: From Theory into Practice
Editors: Jill Hunter, Paul Roberts, Simon NM Young, David Dixon
Hart Publishing
July 2016, 448 pp
Description: Criminal proceedings, it is often now said, ought to be conducted with integrity. But what, exactly, does it mean for criminal process to have, or to lack, 'integrity'? Is integrity in this sense merely an aspirational normative ideal, with possibly diffuse influence on conceptions of professional responsibility? Or is it also a juridical concept with robust institutional purchase and enforceable practical consequences in criminal litigation? The 16 new essays contained in this collection, written by prominent legal scholars and criminologists from Australia, Hong Kong, the UK and the USA, engage systematically with - and seek to generate further debate about - the theoretical and practical significance of 'integrity' at all stages of the criminal process. Reflecting the flexibility and scope of a putative 'integrity principle', the essays range widely over many of the most hotly contested issues in contemporary criminal justice theory, policy and practice, including: the ethics of police investigations, charging practice and discretionary enforcement; prosecutorial independence, policy and operational decision-making; plea bargaining; the perils of witness coaching and accomplice testimony; expert evidence; doctrines of admissibility and abuse of process; lay participation in criminal adjudication; the role of remorse in criminal trials; the ethics of appellate judgment writing; innocence projects; and state compensation for miscarriages of justice.

"Introduction: Re-examining Criminal Process Through the Lens of Integrity"
Paul Roberts, Jill Hunter, Simon NM Young and David Dixon
This book explores the relationship between integrity and criminal process. By ‘criminal process’ we mean, roughly speaking, the institutions, procedures and practices constituting official responses to suspected criminal wrongdoing, encompassing criminal investigations, prosecutions, trials, appeals and extraordinary post-conviction procedures. We do not extend our analysis to ‘the penal system’ and the treatment of convicted offenders, largely on pragmatic rather than theoretical grounds. The book’s central thesis is that ‘integrity’ offers a powerful conceptual lens through which the criminal process in its entirety, or selected phases or aspects of it, can be viewed and critically re-examined. Our general approach could in principle be extended to penality at large, but we had to stop somewhere to keep the volume within reasonable bounds, and adjudication marks a natural temporal break- point, distinguishing the participation of suspects, victims, witnesses and the accused in the investigative process and at trial from the treatment of convicted offenders in the penal system...

"A Public Law Conception of Integrity in the Criminal Process"
Integrity has become a prominent theme in current discourse on the criminal process. It is referred to in cases involving police or prosecutorial misconduct. Courts increasingly make reference to integrity as a ground for ordering relief against and for the government. Integrity lies at the heart of the entrapment and abuse of process doctrines. What more can be expected of the integrity principle will depend on a proper understanding of its scope and meaning. The principle is said to be ‘an influential but also a puzzling principle of criminal justice’. What is the relationship between integrity and human rights? And what is its relationship to notions such as public confidence in the administration of justice, disrepute, accountability and legitimacy? Does it mean anything more than having minimum standards of conduct (and if so, when and in what context), and again is this anything different from a rights-based approach to criminal process? Does it refer to having coherence in the system and if so, coherent by what underlying premises?...

"Integrity, Immunity and Accomplice Witness Testimony"
The use of immunised accomplice witnesses by the prosecution has long been a feature of criminal trials in England and those jurisdictions such as Hong Kong which adopted the English criminal justice system. This practice has been disparaged as ‘unsavoury’ and ‘distasteful’, even ‘unethical’, but ‘turning Queen’s evidence’ in return for immunity from prosecution has been regarded as a ‘necessary evil’ and legally sanctioned as an essential tool in the fight against serious crime. This is particularly true of those forms of criminal activity which normally take place in secrecy, such as trafficking in dangerous drugs, terrorism, fraud and—the subject of this chapter—corruption-related offences...

"Stays of Prosecution and Remedial Integrity"
It is well established in the United Kingdom, Australia and Hong Kong that where a court finds there has been an abuse of process by the prosecution it has an inherent power to order the criminal proceedings to be stayed permanently. A stay of proceedings may be permitted on two bases. An application may be made on the basis that a fair trial is not possible (for reasons such as pre-trial publicity or delay), or on the much rarer basis that whilst a fair trial is possible the application for a stay should be granted anyway as the criminal justice system would otherwise be affronted. This chapter focuses on the latter kind of stay...

"Excluding Integrity?  Revisiting Non-Consequential Justifications for Excluding Improperly Obtained Evidence in Criminal Trials"
This chapter revisits non-consequentialist justifications for excluding a piece of reliable evidence which is improperly obtained (say, through torture or an illegal search) in criminal proceedings. By non-consequentialist justifications, I refer to principles which claim that the improperly obtained evidence should be excluded even if by doing so we do not produce any further good contingent consequences such as deterrence of misconduct by investigatory agents. The two most prominent non-consequentialist justifications offered in the literature are the protective principle and the integrity principle...

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