Monday, February 27, 2017

Statement of Public Interest Principles for Copyright Protection under the Regional Comprehensive Partnership (LTC)

The University of Hong Kong's Law and Technology Centre (LTC) is spearheading a global signature campaign to express concern with the copyright protection standards proposed in the Regional Comprehensive Economic Partnership (RCEP), a major trading agreement involving Australia, China, India, Japan, New Zealand, South Korea and ASEAN states.  So far more than 60 scholars around the world have signed the Statement of Public Interest Principles for Copyright Protection under the RCEP, a statement drafted by LTC Director Dr Haochen Sun, Associate Professor in the Faculty of Law, The University of Hong Kong.  The Introduction to the Statement is excerpted below.
The Regional Comprehensive Economic Partnership (RCEP) aims to conclude a comprehensive agreement that promotes free trade and investment among Australia, China, India, Japan, New Zealand, South Korea and member states of the Association of Southeast Asian Nations (ASEAN). As a hallmark of this proposed agreement, the RCEP Intellectual Property (IP) Chapter will set out a host of minimum standards for IP protection in the sixteen participating countries. 
     We are deeply concerned about the copyright protection standards proposed for the RCEP IP Chapter. They may cause unintended effects of stifling creativity, free speech, and economic growth. We urge that the new rounds of RCEP negotiations reconsider those standards by applying the following three principles:
  1. Integrate the public interest as a core value for copyright negotiations. 
  2. Increase transparency of negotiations for the public interest. 
  3. Institute changes in copyright provisions for the public interest. 
Guided by these three principles, RCEP negotiations would produce the largest mega-regional free trade agreement to procedurally and substantially protect the public interest in copyrighted works. The RCEP copyright provisions, therefore, stand to benefit nearly 50% of the world’s population, who live in the sixteen RCEP participating countries.
To view the full Statement and the names of those who have signed it, click here.  To sign the Statement, click here.

New Scholarship from Bryane Michael (AIIFL Fellow)

1. The Optimal Design of the Qianhai Special Economic Zone
This paper discusses changes to Qianhai's and Hong Kong's regulations necessary to make Qianhai a pre-eminent financial centre. We conduct econometric analyses which show that regulatory reform could increase innovative companies' profits by a factor of 10 over the long-term.

2. Hong Kong's Corporate Governance Rules, Lessons from the Panama Papers and Hong Kong's effect on Changing China's Corporate Governance
This paper describes the changes to Hong Kong's law needed to improve profitable corporate governance reform at home and on the Mainland. We show that the adoption of these standards could increase market valuations by 7%.

3. The Problems and Prospects for an IGAD Development Bank
The IGAD region, covering most of East Africa, represents a challenging area for investment in the best of times. The paper argues for a new design for multi-lateral development financial institutions -- one which focuses on securitisation and less sovereign involvement.

4. A Theory of Compliance Regulation
This paper looks at the way financial institutions should organise their compliance functions. We create a database of legal complexity of banking regulations around the world and show that increased regulation may promote banking productivity.

5. Regulations Determine an M&A Centre's Success
Legal complexity can actually help a financial centre attract more M&A business from places like China. This paper shows the extent to which international law firms and financial advisors have benefited (or not) from their jurisdictions' legal rules.

6. SCMP's Letter of the Law
Abstract legal theory can be used in the real world. Roughly each month, I look at the deep legal principles driving law enforcement and business in Hong Kong.

7. Law and Economics Video Series
Are you too lazy to read academic papers? This YouTube Channel presents the main ideas from legal theory and practice in Hong Kong -- in a graphic and common language way.

8. The Law and Economics Podcast
Too busy to watch a video? Why not subscribe to the podcast version? As new videos about legal theory and practice appear, this podcast makes the content available to anyone with a iPod.

Sunday, February 26, 2017

Shitong Qiao and Frank Upham on China's Changing Property Law Landscape (new book chapter)

"China's changing property law landscape"
Shitong Qiao and Frank K Upham
in Michele Graziadei and Lionel Smith (eds), Comparative Property Law Global Perspectives (Edward Elgar 2017) ch 14
Abstract: This chapter provides an outline of the changing Chinese land regime, including the past, present, and future of land expropriation, small or informal property rights, and rural land reform. We argue that the evolution of Chinese land law exhibits three characteristics. First, law serves as the final confirmation of policy reforms, rather than the precondition of the reform. Second, there is no individual land ownership, and public land ownership (including both state land ownership in the urban area and collective land ownership in the rural area) still matters. Third, due to the rapidly changing nature of the Chinese economy and society, property rights in action are often a pale shadow of what their legal entitlements would indicate in theory. As a result of these three characteristics, Chinese land law poses two related challenges to conventional property theory. First is one of the rarely questioned verities of economic theory: that clear, secure, and judicially enforceable property rights are an essential – perhaps the most essential – prerequisite to economic growth. The second question grows directly out of the first. China’s growth has come through voluntary market exchange on a massive scale, and in this sense fully vindicates economic theory. The challenge is to understand how these markets – in our case, the real estate market – operate without the legal framework considered necessary for Coasian bargaining. We propose a relational property theory as one explanation of what has enabled the market, without any legal rules or judicial enforcement, to thrive on a literally global scale. Relational property emphasizes the determinative role of social relations in the construction of property. The most important normative implication is that relational property can function without the full and faithful implementation of formal property law; but property law cannot function without embedding itself in social relations.

Yahong Li on the French-Chinese Dispute over Feiyue Sneakers (SCMP)

Lucy Christie
South China Morning Post
24 February 2017
When it comes to the sincerest form of flattery – imitation – Chinese companies are often considered to be the champions. From popular luxury handbags and Rolls-Royce cars to smartphones and even KFC fast food, there is little they won’t duplicate. Additionally, Chinese transliterations for famous Western brand names are trademarked in China, putting the original innovators in a bind when they want to sell in China.
     Now, the tables may be turning, with one French business finding inspiration in a Chinese product and giving the design a sophisticated makeover. And not everyone in China is happy with the turn of events.
    Dr Li Yahong, an associate professor at the University of Hong Kong who specialises in intellectual property law, says that from a legal perspective a trademark is protected territorially, and on a first-to-file basis.
     “As long as the Chinese company has not registered its Feiyue mark in France, the French company can register it in France without getting anyone’s approval, and its registered mark is protected in France,” she says... Click here to read the full article.

Friday, February 24, 2017

HKU International Conference on "Who Owns Your Body?" (6-7 April 2017)

The Centre for Medical Ethics & Law of the University of Hong Kong

in collaboration with
The Centre for Law, Medicine & Life Sciences of The University of Cambridge

The Centre of Genomics and Policy of the McGill University
are pleased to announce

A conference on Property Rights in Human Bodies, Tissue and Data, and on Human Organ Transplantation


"Who Owns Your Body?”

Thursday & Friday, 6–7 April 2017
Large Moot Court, 2/F, Cheng Yu Tung Tower, Centennial Campus,
The University of Hong Kong
How does the law govern the ownership of your body? And of its parts, and things derived from it? What are the fundamental legal principles governing claims to ownership, possession and other rights in the human body? And what are the ethical, legal and social impact of applications of materials taken from the human body, particularly in the context of human organ transplantation and the responses arising therefrom? This 2-day conference aims to explore these fundamental questions from ethical, legal, medical, religious and social perspectives. It will also identify gaps and inconsistencies in current law and practice; discuss the current tensions between the imperatives of clinical and research use for tissue and information and that of the privacy of the individual and suggest how these tensions may be best bridged to mutual benefit.

Speakers and Roundtable Panelists:
Professor King L. Chow, The Hong Kong University of Science & Technology
Professor Leonardo de Castro, University of the Philippines
Dr Imogen Goold, University of Oxford
Professor Guang Xing, Centre of Buddhist Studies, The University of Hong Kong
Ms Alison Hall, PHG Foundation
Dr Calvin Ho, National University of Singapore
Dr Chih-hsing Ho, Academia Sinica, Taiwan
Professor Terry Kaan, The University of Hong Kong
Professor Bartha Maria Knoppers, McGill Centre of Genomics & Policy, McGill University
Mr Alex Lam, Hong Kong Patients’ Voices
Professor Tohru Masui, Center for Medical Genetics, School of Medicine, Keio University
Mr Colm McGrath, University of Cambridge
Dr Jeff Skopek, University of Cambridge
Dato Dr Zahari Noor, Consultant Forensic Pathologist, Government of Malaysia
Dr Ron Zimmern, PHG Foundation

Please click the following link : 48384

Your kind assistance in encouraging your colleague/friend participation would be highly appreciated.
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Thursday, February 23, 2017

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

Vol. 6, No. 6: 23 December 2016
Table of Contents

1.A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong
Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law
Nigel Davis, University of Hong Kong
Douglas W. Arner, University of Hong Kong - Faculty of Law

2. The Limits of Critique and the Forces of Law
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law
Scott Veitch, The University of Hong Kong - Faculty of Law

3. Plasticity, Jurisdiction and the Interruption of Sovereignty: A Response to Catherine Malabou Via José Saramago's Seeing
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

4. Narrative, Space and Atmosphere: A Nomospheric Inquiry into Hong Kong's Pro-Democracy 'Umbrella Movement'
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

5. The Nomos of Hong Kong's Umbrella Movement
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

6. A Spirit of the Common: Re-Imagining 'The Common Law' with Jean-Luc Nancy
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

Vol. 7, No. 1: 17 February 2017
Table of Contents

1. 'All for Some' or 'Some for All'? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong 
Karen Kong, The University of Hong Kong - Faculty of Law 

2. Legal Origin and Corporate Governance for Chinese Family Business: Evidence in Hong Kong, Taiwan and Mainland China 
Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences 

3. The Emergence of Transnational Environmental Law in the Anthropocene 
Jolene Lin, University of Hong Kong - Faculty of Law 

4. Towards Peer Presence in Post Disaster Governance: An Empirical Study 
Shahla F. Ali, Deputy Director, Program in Arbitration & Dispute Resolution, University of Hong Kong, Faculty of Law

Wednesday, February 22, 2017

Africa Journal of Comparative Constitutional Law and the Recovery of Corruption Proceeds in Kenya

Congratulations to Dr Tom Kabau (PhD 2013) and his two fellow co-editors on the publication of the inaugural issue of the Africa Journal of Comparative Constitutional Law published by Juta Law of South Africa.  News of this inaugural issue was published on the I-CONnect Blog.  Members of the international advisory board include Shahla Ali and Yash Ghai.  Dr Kabau contributed an article on the recovery of corruption assets in Kenya, in which he drew upon the experiences of Hong Kong and Hong Kong's anti-corruption agency the Independent Commission Against Corruption.  The details of his article are as follows:

"Constitutional dilemmas in the recovery of corruptly acquired assets in Kenya: Strengthening judicial assault on corruption"
Tom Kabau
2016, Issue 1, pp 23-57
Abstract: Despite widespread incidences of corruption in Kenya, obtaining evidence for the prosecution of offences relating to the vice is highly problematic. As a response to such challenges, the possession of unexplained assets, which is categorised as illicit enrichment in international legal instruments, creates a presumption of corrupt conduct by virtue of section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). On that basis, ACECA shifts the burden of proof to the subject person, requiring him to demonstrate that the property was obtained lawfully. Whilst section 55 of ACECA provides that such court proceedings are of a civil nature, their linkage with criminal prosecution is extremely high, a fact that Kenyan courts seem to take into account while interpreting the scope of the right to a fair trial in such cases. 
     Unexplained assets recovery proceedings are often challenged in court on allegations of violation of the constitutional right to a fair trial, especially the presumption of innocence, and the right against self-incrimination, which are categorised as absolute entitlement under the Constitution. However, widespread corruption erodes accountability, undermines the rule of law and, therefore, establishes conditions in which even the right to a fair trial cannot be realised. It is on that basis that the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Such an interpretative approach may facilitate institutionalisation of accountability in public institutions, including in the Judiciary, and therefore guarantee all Kenyans the right to a fair trial.

Tuesday, February 21, 2017

Puja Kapai to Moderate Discussion on Ethnic Minorities with CE Candidate Carrie Lam (23 Feb 17)

Puja Kapai will be moderating an armchair discussion with Mrs Carrie Lam, candidate for the Chief Executive election.  The event is titled "What is the Future for Non-Chinese And Ethnic Minorities in Hong Kong" and will be held at the Sai Ying Pun Community Complex at 7:30 pm on 23 February 2017.

Thursday, February 16, 2017

Douglas Arner on China Fintech at the Latham & Watkins Shenzhen Technology Conference (SCMP)

"Experts call for better fintech regulation in China, Hong Kong"
Zen Soo
South China Morning Post
15 February 2017
Financial technology experts are calling for better regulations in China and Hong Kong to help the industry thrive, especially since existing laws still lag behind the pace of innovation and technology.
    China, which is home to companies operating mobile payments and financial technology (fintech) services like Alibaba affiliate Ant Financial and Tencent, is widely regarded as a global leader in the fintech industry. Alibaba owns the South China Morning Post.
     Ant Financial operates third-party online payment platform Alipay, while Tencent operates WeChat Wallet, a mobile wallet feature built into its messaging app WeChat. Collectively, both companies account for more than 70 per cent of the third party online payments market in China, according to market research company iResearch, with well over a billion users between them.
     “If we look at the evolution of the payments system in China, we can see that it’s built from ... frequent e-commerce, expanded via smartphones through [mobile] payments, and more recently to finance,” said Douglas Arner, professor and co-director of Duke-HKU Asia America Institute in Transnational Law, who was speaking at the Latham & Watkins Shenzhen Technology Conference on Wednesday.
     While innovation in China’s fintech industry was seen as desirable at the beginning since it helped companies get around existing inefficiencies in the financial industry, there has been a change in regulatory approach, where Chinese regulators are more careful about the risks in fintech, Arner added.  Click here to read the full article.

Wednesday, February 15, 2017

Comparative Study of Legal Education and Pathways to Admission in Singapore, Hong Kong and Australia (J of Legal Education)

"Legal Education, Practice Skills, and Pathways to Admission: A Comparative Analysis of Singapore, Hong Kong, and Australia"
Andrew Godwin and Richard Wu
Journal of Legal Education
Winter 2017, Vol. 66, Number 2, pp. 212-236
Introduction: It appears axiomatic that as legal practice becomes more globalized, so too must legal education. One of the byproducts of the globalization of legal practice, involving both an increase in cross-border activity and also changes in the way the legal profession is structured and regulated, is that law schools are increasingly expected to prepare graduates for the challenges of global practice. An important question that arises in this respect is the role law schools should perform in preparing graduates for admission and, in particular, equipping graduates with the practice skills that lawyers need to operate effectively in a cross-border context. A substantial body of literature exists concerning the globalization of legal education and the globalization of legal practice. This paper contributes to the discourse by examining the relationship between the design of pathways to admission—namely, the processes by which graduates qualify for admission to legal practice—and legal education, particularly the incorporation of practice skills into the law school curriculum. This paper examines three jurisdictions in Asia that share a common-law heritage but adopt substantially different pathways to admission: Singapore, Hong Kong, and Australia. All three jurisdictions share a requirement for graduates to obtain practical training before they gain admission to practice.Singapore is unique among the three jurisdictions in that its pathway to admission involves a bar examination that follows a compulsory preparation course. Hong Kong and Australia, by contrast, currently do not adopt a bar examination and, instead, require completion of postgraduate professional legal training as a prerequisite to admission. However, two important points of difference exist between Hong Kong and Australia. First, enrollment in Hong Kong’s postgraduate certificate in laws (PCLL), an intensive one year full-time legal qualification program, is through competitive application. The existence of caps at each of the three providers means that not all graduates are guaranteed of winning a place in the PCLL and, therefore, gaining admission to practice. By comparison, enrollment in the practical legal training (PLT) course in Australia is not capped and all law graduates are therefore able to enroll in the course and gain admission to practice upon successful completion of the course. The second point of difference is that graduates in Australia can undertake supervised workplace training as an alternative to the PLT course and gain admission to practice on that basis without the need to complete a postgraduate professional training course. Interestingly, Hong Kong is currently moving closer to the approach of Singapore with the announcement by the Law Society of Hong Kong in January 2016 that a common entrance examination will be introduced and will come into effect by 2021. Critical questions in all jurisdictions are the role that law schools should play in preparing graduates for admission and the extent to which practice skills are expected to form part of the curriculum for the academic degree, as distinct from the professional training course that follows graduation and precedes admission. In this respect, the similarities are closer among the three jurisdictions. Unlike the American Bar Association, which requires students to complete at least six credit hours of experiential education, all three jurisdictions to date have avoided a prescriptive approach and have instead given the law schools discretion to determine how practice skills should be incorporated into the curriculum. However, some interesting points of difference exist among the three jurisdictions in terms of the extent to which the design of pathways to admission has been driven by perceived deficiencies in the teaching of practice skills within the academic degree and, therefore, the need to supplement these deficiencies as a prerequisite to practice. This paper examines the development of pathways to admission and identifies a number of interesting countervailing trends and contradictions. A central question raised by the comparative analysis is whether professional admission courses should serve as a gatekeeper in terms of assuring quality and competence or whether they should serve simply as preparatory courses for admission to the legal profession. The comparative analysis reveals a number of countervailing trends and contradictions concerning fundamental issues such as the function of a law degree and the impact of globalisation on legal education and legal practice. This paper argues that it is important for legal education to strengthen practice skills while maintaining a rigorous focus on legal doctrine and general skills such as analysis, problem-solving and research. This paper is structured as follows: Part II explores the relationship between legal education and legal practice by examining the emergence of professional training courses and the increasing expectations for law schools to incorporate practice skills into the curriculum. Parts III, IV, and V consider the pathways to admission in Singapore, Hong Kong, and Australia, respectively, and track the debates in each of those jurisdictions concerning the relative importance of practice skills in their design. Part VI sets out the findings of the comparative analysis and offers some observations by way of conclusion.  Click here to read the full article.

Tuesday, February 14, 2017

Executive Course: Stolen Goods, Forgeries and Loot (HKU, 6-7 March 2017)


Stolen Goods, Forgeries and Loot: Intersections of Art, Law and Crime 

Monday 6th – Tuesday 7th March 2017
10:00 – 17:30
Academic Conference Room, 11/F Cheng Yu Tung Tower,
Centennial Campus The University of Hong Kong 

The University of Hong Kong Faculty of Law is pleased to announce its first Executive Course on Art, Law and Crime. The Course will comprise of two days of intensive interactive workshops (for a total of 10 hours), with a focus on stolen goods, forgeries and loot. Attendees will receive a certificate upon completion of the course. 

The course will be led by the following Discussants: 
Dr. Saskia Hufnagel, Senior Lecturer in Criminal Law and Co-Director of the Criminal Justice Centre (CJC) at Queen Mary University of London. Saskia is currently a Visiting Fellow with HKU’s Centre for Comparative and Public Law. Saskia was a Research Fellow at the Australian Research Council Centre of Excellence in Policing and Security, Griffith University, Australia, and was a Leverhulme Fellow at the University of Leeds. Whilst completing her PhD, she taught at the ANU College of Law and between 2009 and 2011 she held a permanent teaching position at the University of Canberra. She is an accredited German legal professional specialising in criminal law.  
Dr. Rebecca Wong, Assistant Professor at City University of Hong Kong. Rebecca completed her PhD studies at the Department of Sociology, University of Oxford. Her primary research interests are in the fields of green criminology, environmental crime, illegal endangered wildlife trade, criminal networks and issues of trust in the underworld. She is also an associate member of the Extra Legal Governance Institute and the Elephant Research & Conservation Network, University of Oxford. 
Toby J.A. Bull has a BA (Hons) in ‘Fine Arts Valuation’ and a MSc in ‘Risk, Crisis & Disaster Management’. He is a certified art authenticator, having studied at the Centre for Cultural Material Conservation and graduated from the University of Melbourne, Australia. He is widely published in the art crime field and is a very experienced lecturer in the subject. Since 1993, he has worked for the Hong Kong Police Force. Toby is a Freeman of The Worshipful Company of Arts Scholars and holds the Freedom of the City of London.  
(1) The fee for the Executive Course is HK$4,000 per person, payable upon registration. 
(2) Students will enjoy a discounted fee of HK$1,600 per person. Proof of student status should be submitted with the cheque (Copy of Student ID). 
(3) Those wishing to attend the Executive Course should register here. Cheques should be made payable to “The University of Hong Kong” with your full name and telephone number written on the back of the cheque and sent to Ms. Joyce Fung at Room 921, 9/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong. 
(4) Registration will be completed upon the receipt of the course fee by the Centre for Comparative and Public Law and a confirmation email will be sent to you to advise you accordingly. Receipts for payment will be available for collection on the first day of the course from the registration desk in the morning. 
(5) No refund will be provided for any course fees paid once registration has been confirmed. 
(6) We are currently applying to the Law Society of Hong Kong for CPD points for the course. 
(7) Inquiries may be addressed to Ms. Joyce Fung at

Thursday, February 9, 2017

HKU Law Alumnus Geoffrey Yeung Recognised in The Loop's 30 Under 30 2016

Congratulations to Geoffrey Yeung (LLB, BBA(Law) 2014; PCLL 2015), Rhodes Scholar and human rights activist, who was recently recognised in The Loop HK's 30 Under 30 2016.  His citation reads as follows: 
When he was younger, Geoffrey Yeung wanted to work as a banker or consultant for international companies. As he grew older, he had a change of heart.
     “Around 2012, I came out as gay after a long period of personal struggle,” Yeung says. “It was then that I realized that there was indeed a community that I really wanted to do something for.”
      Having had experience working as an intern at the UN and at NGOs overseas, he got involved with major players in the LGBTQ movement in Hong Kong, like Pink Alliance. He also helped to establish Action Q, a cross-campus group that mobilizes youth support for LGBTQ rights, social justice, and democracy...
Click here to read the full citation.

Wednesday, February 8, 2017

Roda Mushkat on Counterfactual Reasoning and International Law Methodology (German LJ)

"Counterfactual Reasoning: An Effective Component of the International Law Methodological Armor? 
German Law Journal
2017, Vol. 1, No. 1, pp 59-97
Abstract: The exploration of international legal patterns is an increasingly multifaceted enterprise. As such, it inevitably entails recourse to a progressively broader array of analytical instruments designed to place the process on a firmer scientific, or quasi-scientific, foundation. This expanding set consists predominantly, albeit not exclusively, of qualitative techniques relied upon in seeking generalizations about complex realities that are shrouded in uncertainty. The cluster of tools employed or deemed potentially usable includes, although tentatively, counterfactual thinking. The latter may be regarded as a research vehicle of “last resort,” underpinned by a soft substructure, but it may facilitate the quest for better grasp of phenomena observed in the international law domain and more effective action in that realm.  Click here to download the full article.

Tuesday, February 7, 2017

Daisy Cheung on the Constitutionality of Hong Kong's Compulsory Psychiatric Regime (Int'l J Law & Psychiatry)

"The compulsory psychiatric regime in Hong Kong: Constitutional and ethical perspectives"
Daisy Cheung
International Journal of Law and Psychiatry
Jan-Feb 2017, Vol. 50, pp. 24-30
Abstract: This article examines the compulsory psychiatric regime in Hong Kong. Under section 36 of the Mental Health Ordinance, which authorises long-term detention of psychiatric patients, a District Judge is required to countersign the form filled out by the registered medical practitioners in order for the detention to be valid. Case law, however, has shown that the role of the District Judge is merely administrative. This article suggests that, as it currently stands, the compulsory psychiatric regime in Hong Kong is unconstitutional because it fails the proportionality test. In light of this conclusion, the author proposes two solutions to deal with the issue, by common law or by legislative reform. The former would see an exercise of discretion by the courts read into section 36, while the latter would involve piecemeal reform of the relevant provisions to give the courts an explicit discretion to consider substantive issues when reviewing compulsory detention applications. The author argues that these solutions would introduce effective judicial supervision into the compulsory psychiatric regime and safeguard against abuse of process.

Monday, February 6, 2017

Rick Glofcheski on the Law and Politics of Defamation in Hong Kong (new book chapter)

"The Internet and Politics in the Development of Hong Kong Defamation Law"
Rick Glofcheski
in Doreen Weisenhaus and Simon NM Young (eds), Media Law and Policy in the Internet Age (Hart 2017) 95-111
Introduction: As elsewhere, defamation law in Hong Kong is in a state of flux. This is so largely because modern information technology is changing the ways in which people, including journalists, communicate, disseminate and seek out information and opinions. Although the impact of the new technology should not be over-stated and the pre-Internet era law is adaptable and capable of application in most cases, there can be no doubt that problems created by the new technology and new habits of communication are requiring a high degree of creativity from the courts to the point where statutory intervention may be unavoidable. 
     Hong Kong defamation law is under pressure for another reason. The rules of defamation law seek to strike a balance between free speech and the protection of reputation, but these interests and the value attached to them change over time. In recent years there is evidence of increased expectations on the part of civil society for greater political freedoms, including freedom of expression. The one country, two systems model has worked well enough since the 1997 handover, but Hong Kong is facing new issues in its political evolution. In the absence of an accountable government, but in the expectation of one, a free and active press has a vital role to play in the transition to the next stage of political development. 
     In Hong Kong, defamation law is governed largely by the common law. The Defamation Ordinance, dating to the nineteenth century and modelled on English legislation, is the principal piece of defamation legislation, but does little more than provide minor modifications of some of the rougher aspects of the common law, in particular the defences, many of which are relevant to the press. There have been no significant amendments to the Defamation Ordinance for decades, the few that did take place being cosmetic in nature. It is probably fair to say that the Ordinance has a ‘passed its use-by date’ feel about it. Indeed, a good portion of the Ordinance is concerned with criminal libel and procedure, provisions that are certainly outdated, not to say controversial, and not surprisingly have not been applied by the courts for decades. Leaving aside the need for substantive reform of defamation law brought about by changes in communications technology and changing social expectations, the Ordinance is in need of an overhaul, if only to give it a modern look and to make it more relevant. 
     In the United Kingdom (UK), the jurisdiction with laws closest to Hong Kong’s, a package of defamation law reforms was enacted in 2013 to address some of the problems triggered by the new technology, as well as the problem of so-called ‘libel tourism’, a phenomenon derived from a perception that, because of its favourable jurisdictional and procedural rules and the low threshold for qualifying for substantial damages, the English courts had become the forum of choice of international litigants looking for a plaintiff-friendly venue to file their defamation claims. The 2013 reforms attempt to address that issue as well, while codifying and smoothing over some of the common law principles that were considered to be in need of tweaking.
     In Hong Kong there is as yet no talk of statutory reform, despite defamation laws broadly similar to those of the UK.  Indeed, law reform is a rare event in Hong Kong in any area of the law. This generalised legal inertia is sometimes explained by reference to the laissez-faire, non-interventionist governance philosophy that has been practiced by a succession of Hong Kong governments both pre- and post-handover. More recently, and perhaps more accurately, it can be explained by a governance paralysis brought about by a fear of backlash from a public increasingly suspicious of any change initiated by a non-representative government that has for the most part lost the public trust. In this environment, it falls to the judiciary to initiate change in areas of the law thought to be in need of reform. Thus, defamation law reform in Hong Kong is by necessity a slow, cautious and to some degree random process, dependent on cases coming to the courts, but also constrained by the common law process itself, which does not permit of wholesale breaks with existing precedents. From a review of the post-handover defamation case law it can be seen that the Hong Kong courts, in particular the Court of Final Appeal, are prepared to take the lead and introduce change where it is needed.  However, it may be asking too much of the courts to bear the full burden of law reform in the rapidly changing communications environment. Certainly, judge-made common law has advantages over legislation in that as computer software and other information technology continue to develop and become more sophisticated, the common law may prove a more adaptable process than legislation, which may have been completely overtaken by the new technology. On the other hand, it is hard to imagine how the courts can achieve reforms of the nature of some of those introduced in the UK’s Defamation Act 2013, for instance, the repeal of the statutory presumption in favour of jury trials, or of greater urgency, the abolition of the much-criticised multiple publication rule, which treats each new publication of a libelous statement as a fresh defamation, thereby re-starting the limitation period and perpetuating its actionability. This is surely a major issue in defamation law given the Internet’s capacity to multiply defamatory material over time. In this environment, statutory reform cannot be deferred for much longer. 

New Book: Media Law and Policy in the Internet Age (Hart)

Media Law and Policy in the Internet Age
Editors: Doreen Weisenhaus and Simon NM Young
Hart Publishing
2017, 280 pp.
Description: The Internet brings opportunity and peril for media freedom and freedom of expression. It enables new forms of publication and extends the reach of traditional publishers, but its power increases the potential damage of harmful speech and invites state regulation and censorship as well as manipulation by private and commercial interests.
     In jurisdictions around the world, courts, lawmakers and regulators grapple with these contradictions and challenges in different
ways with different goals in mind. The media law reforms they are adopting or considering contain crucial lessons for those forming their own responses or who seek to understand how technology is driving such rapid change in how information and opinion are distributed or restricted.
     In this book, many of the world’s leading authorities examine the emerging landscape of reform in nations with variable political and legal contexts. They analyse developments particularly through the prisms of defamation and media regulation, but also explore the impact of technology on privacy law and national security.
     Whether as jurists, lawmakers, legal practitioners or scholars, they are at the front lines of a story of epic change in how and why the Internet is changing the nature and raising the stakes of 21st century communication and expression. 

Karen Kong and Eric Cheung Cited in Story on Hong Kong's "King of Judicial Review" (HKFP)

Ellie Ng
Hong Kong Free Press
5 February 2017
Trying to hold the government to account in court almost always guarantees a David and Goliath scenario: the government has unlimited resources to fight legal battles, while civilians seeking to rectify injustices face systemic obstacles at every step of the judicial process. 
     But in Hong Kong, one man is unfazed by the challenge. Cheung Chau resident Kwok Cheuk-kin – widely known as the “king of judicial review” – has taken the government to court more than 20 times over the past decade, though he has only won once. The talkative 78-year-old may look like an unassuming elderly retiree, but he is a familiar figure to those on the judicial scene. When Kwok posed for pictures in front of the High Court during our interview, several security guards gave him a nod and a smile... Click here to read the full article.

Melissa Loja on the China-Japan Dispute over the Senkaku/Diaoyu Islands (EJIL)

Melissa H Loja (PhD Candidate)
The European Journal of International Law
2017, Vol. 27, No. 4, pp. 979-1004
Abstract: This article ascertains whether Japan’s possession of the Senkaku/Diaoyu Islands has a legal basis that is opposable to China. It departs from the traditional approach that focuses on historic titles and ancient maps. It applies an alternative approach that is based on the status quo post bellum or the relative legal position of the parties at the end of armed hostilities. This approach is warranted by the practice of China, Japan and the Allied powers of defining the status quo in the East China Sea as a frame of reference for the future disposition of the islands. Primary records of their conduct in the period 1945–1952 reveal consensus that: (i) the islands are part of Nansei Shoto rather than of Formosa; (ii) they remained under the residual sovereignty of Japan and (iii) they were being claimed by Japan but not China. The conduct of the parties proximate to 1945–1956 indicate that there was no prior existing title to the islands that would contradict the status quo. Rather, during the period 1952 up to the critical date of 1970, the positive acts of the Republic of China and the acquiescence of the People’s Republic of China confirmed the status quo.  Click here to read the entire article.