Wednesday, May 17, 2017

Interview with Raymond Wacks on Writing, Scholarship and Justice, His Latest Book

Professor Raymond Wacks was a teacher in the Faculty of Law from 1984 to 2001 and Head of the Department of Law from 1986 to 1993.  He is currently Emeritus Professor of The University of Hong Kong.  On the occasion of the publication of his latest scholarly book, he kindly agreed to this e-interview for the HKU Legal Scholarship Blog.

With a little trepidation, I submit below my answers to your searching questions.  I should point out that, since leaving Hong Kong (HK) almost 16 years ago, I have neglected to maintain an interest in the legal and political vicissitudes of the Special Administrative Region, save for reading the occasional general article in the media over the years. During my 16 years in Italy I must confess that my preoccupations tended to be bucolic rather than Basic Law!
     Nevertheless, as you adroitly noted, I was able to produce (in addition to olives, vegetables, fruit, honey etc) several publications. None, however, was directly related to HK. 
     I say all this by way of caveat. During my 17 years at HKU I freely pontificated and prognosticated about numerous aspects of HK law (regardless of my lack of expertise). I was frequently quoted by the press. And I even presented a weekly TV and radio show on HK politics. This baton (poisoned chalice?) has now been grasped by others, so my responses to your questions should be read in the light of my protracted geographical and academic distance from the subject.

1. You have been extremely prolific since you “retired” from the Faculty in 2001. I count 8 books of which 4 have multiple editions. Your latest work published earlier this year is titled Justice: A Beginner’s Guide. Why did you write this book and what audience did you have in mind?
​It all began soon after my retirement from HKU. In early 2002 I received an invitation from Oxford University Press (issued with some dexterous arm-twisting) ​to convert an earlier student text on jurisprudence which was then in its fifth edition into a more substantial introduction to legal theory. I very reluctantly accepted. (I had only just cast off the yoke of academia, and, moreover, had disposed of a significant number of my books, journals etc).
     The first edition of Understanding Jurisprudence was published soon afterward. The fifth edition will appear at the end of this year. (I hope it is still being used by law students at HKU). The book has just been translated into Turkish. More than 500 pages! What an undertaking!
     I was then tempted to write a brief introduction to legal philosophy for OUP's hugely successful Very Short Introduction (VSI) series. I enjoyed the challenge of elucidating the central issues of jurisprudence in a chatty, reader-friendly style. That book is now in its second edition, along with two more titles I wrote for the series, Law, and Privacy.
     My long interest in the legal protection of privacy resulted in OUP publishing my Privacy and Media Freedom in 2013 in which I adopt a rather iconoclastic position in relation to the current state of Anglo-American law on this contentious subject.
     The winters in Umbria and Tuscany are fairly harsh. Producing these manuscripts was an effective (and quite rewarding) way of remaining indoors when the days were short and there was little to do outdoors save for feeding our hens, goose, and other feathered creatures, and chatting to our Shetland pony, and vainly seeking to intimidate the hunters who encroached (legally) ​on to​ our land.
     My book is intended for both students and general readers. I have no idea if it succeeds in either category.

2. What contribution does the new book make?
​I hope it provides a lively introduction to this topical subject. Drawing on my experience in apartheid South Africa, I attempt to sketch the various theories of justice from Aristotle to contemporary writers like Rawls, Nozick, Sen​,​ and several others.​

3. Unlike your previous books, this one was published with Oneworld Publications. Why the change?
​My original proposal was to produce a fourth VSI for OUP, but, since I had already exceeded their limit of two titles (the only author, I believe, to have done so), I was unable to persuade them to allow me to do another. I therefore took my idea to the excellent independent Oneworld Publications. I had discovered them a few years ago. They have won several awards, and the last two novels that won the Man Booker Prize were published by them. 
     I particularly liked their brilliant Beginner's Guide series. And, as I had been thinking about the question of social justice for several years (as I pruned the olives), they were the obvious choice. Have a look at their site and you'll immediately understand.

4. What would you regard as your most important work since 2001 and why?
I suppose Privacy and Media Freedom​ is the most original and the most daring. I take serious issue with the judicial approach, especially in England, toward the formulation of the concept of privacy under the sway of the European Court of Human Rights' interpretation of Article 8 of the ECHR. Needless to say, the courts generally ​pay little heed to my views, though I was rather chuffed when the Supreme Court recently cited my earlier book, Privacy and Press Freedom, in their important judgment last year in PJS v News Group Newspapers Ltd [2016] UKSC 26, [41].

5.  One of your books is a work of fiction situated in South Africa. What is the book about and why did you write it?
Like so many people, I believed that I could write a novel. I have been an avid consumer of literature all my life, and growing up in apartheid South Africa provided ample material for creative writing. ​I had a surfeit of memories to draw on, both good and bad, happy and sad. White Lies views the injustice of apartheid through the eyes of a white, idealistic boy as he progresses toward manhood. It attempts both humour and historical exactitude. 
     These two links will help to explain:  Broadway World (2 pages) and Amazon.

6. In the introduction of your 1999 edited book, The New Legal Order in Hong Kong (HKU Press), you wrote that the “common law is a hardy plant, difficult to uproot” and the “culture and traditions of our system, whatever its imperfections, seem destined to endure”. What made you think then that the Hong Kong common law system would endure? As we approach 20 years after the handover, do you continue to hold this view?
I did (and do) believe that the common law cannot easily be eradicated where it has ​taken root. It is true that it is under threat from extremists and fundamentalists who would extinguish many of our most cherished ideals. But I cannot see how they can succeed. Nor is it clear to me how the mainland's so-called socialist legal culture can displace Hong Kong's - especially since, as far as I can tell, China is gradually adopting, or at least not rejecting, many common law principles and practices.

7. In your 2000 Hong Kong Law Journal commentary on the flag burning case (HKSAR v Ng Kung Siu), you wrote that “our courts have long cleaved to the common law’s tradition of protecting rights” and that in “these uncertain times, however, judges need to construct a more resilient fortress to resist the desecration of our rights, above which the flag of freedom might long be hoisted”. In your view, how well have our courts constructed that ‘resilient fortress’ upholding the ‘flag of freedom’?
​Given my failure (alluded to above) to keep abreast with judicial attitudes in HK, I am afraid that I am unqualified ​to answer this question with any degree of reliability. 

8. One of our old Faculty Newsletters recorded that you had retired to a sunny and quiet villa in Italy. But you have now moved back to the United Kingdom. What led to the move and how have you enjoyed the transition? 
​Yes. We are now living in the beautiful Georgian town of Stamford in Lincolnshire. It still feels strange being back in England after 35 years 'exile' abroad. It seemed the right time to return and, so far, I am enjoying being here, despite the awful weather.​

Monday, May 15, 2017

PJ Yap and Eric Chan on Legislative Oaths and Judicial Intervention in Hong Kong (HKLJ)

"Legislative Oaths and Judicial Intervention in Hong Kong"
Po Jen Yap and Eric Chan
Hong Kong Law Journal
2017, Vol. 47, Part 1, pp 1-16
Abstract: In this comment, we disagree with the Court of Appeal’s decision to disqualify two newly elected members of the Legislative Council from office. While we accept that the judiciary is empowered under Art 104 of the Basic Law to determine whether an oath taken is valid, it is our view that after the oath is judicially deemed invalid, it should be left to the President of LegCo to determine whether the lawmaker is to be denied a second chance of retaking the oath and be disqualified. First, the CA held that para 2(3) of the relevant Interpretation by the Standing Committee of the National People’s Congress “automatically disqualified [the pair of lawmakers] from assuming their offices”, but the term “automatic” or “automatically” is found nowhere in the Interpretation. The Interpretation only uses the term “forthwith”, which means “without delay”, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously. Second, reading ss 19 and 21 of the Oaths and Declarations Ordinance (Cap 11) together, we argue that a lawmaker can only be disqualified for declining to take the requisite oath if he had not taken a valid oath after a reasonable time had elapsed. Therefore, the lawmaker is not disqualified “automatically” on the first occasion where he declined to take the requisite oath. Third, the principle of non-intervention in the internal process of LegCo applies herein. Whilst the courts have jurisdiction to determine whether the President has the general power to grant or deny a newly elected LegCo member the opportunity of retaking the requisite oath after the original attempt was judicially deemed invalid, the courts will not exercise jurisdiction to determine the specific occasion or manner of exercise of this power by the President. Finally, if the Interpretation is treated as a piece of legislation instead of a judicial decision, and if Hong Kong courts were to approach this legislation using common law principles of statutory interpretation, the presumption against retrospectivity of legislation applies; and on the facts of this case, this Interpretation would not operate retrospectively to events that predated its announcement.

Alice Lee's Comparative Study of Well-known Trade Marks and Dissimilar Goods (HKLJ)

"Well-known Trade Marks and Dissimilar Goods: HK, UK and EU Law"
Alice Lee
Hong Kong Law Journal
2017, Vol. 47, Issue 1, pp 89-114
Abstract: The escalating complaints of international brands about unauthorised use of their trade marks or resembling marks on non-competing goods or services have provoked rethinking of trade mark law. In Hong Kong, as in most other jurisdictions, there are specific statutory provisions for the protection of well-known trade marks. Comparing Hong Kong, UK and European authorities, this article examines the scope of ss 18(4) and 12(4) of the Trade Marks Ordinance (Cap 559), explains why they should be construed as limited to dissimilar goods and services and concludes that the Trade Marks Registry Work Manual is in desperate need of revision.

Jingyi Wang on the Need for Research and Development Tax Incentives in Hong Kong (HKLJ)

"Losing Out in Powering Innovation: The Necessity of Introducing Research and Development Tax Incentives in Hong Kong"
Jingyi Wang
Hong Kong Law Journal
2017, Vol 47, Issue 1, pp 143-170
Abstract: The Global Competitiveness Index reveals that Hong Kong’s relative underperformance compared to Singapore is because it has lagged behind in boosting local innovation and performed less satisfactorily in technological advancement. This can be regarded as a result of inadequate government support. The Hong Kong government’s stubborn belief in its tax system prevents it from making a timely response to the changing environment. A global trend of providing generous tax incentives has made the tax system in Hong Kong less competitive in boosting and attracting investment into innovation. What can Hong Kong learn from experience elsewhere? This article explores the necessity of adopting research and development (R&D) tax incentives to spur innovation and achieve the technological advancement the Hong Kong government desires. The introduction of the R&D tax incentives in Hong Kong proposed in this article may present an opportunity for Hong Kong to keep up with the global trend of prioritising innovation.

Syren Johnstone on Crediting Ratings and the Moody's Case in Hong Kong (HKLJ)

"Credit Ratings: The Moody's Case"
Syren Johnstone
Hong Kong Law Journal
2017, Vol 47, Issue 1, pp 193-220
Abstract: In Moody’s Investors Service Hong Kong Ltd v Securities and Futures Commission, the Securities and Futures Appeals Tribunal was required to determine whether a report issued by Moody’s fell within the scope of Hong Kong’s statutorily defined credit rating regime. The Tribunal determined that the report was either itself a credit rating or part and parcel of Moody’s credit rating services. This article analyses the Tribunal’s determination and concludes that it is flawed primarily as a result of concerns over its application of the purposive construction of statutory provisions and a failure to closely analyse the statutorily defined term “credit rating”. It is suggested that the determination gives rise to problematic consequences including blurring the regulatory perimeter of what constitutes a credit rating and providing credit rating services.

Sunday, May 14, 2017

Roderick Hills and Shitong Qiao on Whether Foot-Voting Can be Made Safe for the Chinese Communist Party (Columbia HRLR)

"Voice and Exit as Accountability Mechanisms: Can Foot-Voting Be Made Safe for the Chinese Communist Party?"
Roderick M Hills Jr and Shitong Qiao
Columbia Human Rights Law Review
Spring 2017, Vol 48, Issue 3, pp 158-210
Abstract: According to Albert O. Hirschman's famous dichotomy, citizens can express their preferences with their "voice" (by voting with ballots to elect better representatives) or by "exit" (by voting with their feet to choose better places to live). Suppose, however, that ballot-voting is ineffective: Can exit not merely aid but also replace voice? Using the People's Republic of China, a party state without elective democracy as a case study, we argue that exit is not a substitute for, but rather a complement to, voice. China's bureaucratic promotion system plays the same role that local elections do in the United States, promoting or replacing local officials based on their performance in office. In either regime, however, it is costly for local voters (in the United States) or the Chinese Communist Party (in China) to monitor and assess local officials. Attention to foot-voting in the legal design of local government can help reduce these costs. By evaluating cadres who run the lower levels of China's local governments on the basis of how successfully they attract mobile households, the central CCP authorities could reduce the costs of monitoring these local officials and thereby reproduce, by bureaucratic means, some of the benefits of electoral democracy. The Party can most cheaply measure success in attracting foot-voters by evaluating cadres primarily on the basis of local land values which, because they are a product of foot-voters' decisions about where to live, function like ballots insofar as they reflect the popularity of local cadres' policy decisions with mobile Chinese households. For foot-voting to improve governmental accountability, however, the Chinese system of local government law requires some basic but politically feasible reforms--in particular, the introduction of a local property tax system, the creation of a federated city system that grants power and autonomy to sub-city units, and the liberalization of China's household registration system to make the population fully mobile across different jurisdictions.  Click here to download the paper.

Saturday, May 13, 2017

From FinTech to TechFin: The Regulatory Challenges of Data-Driven Finance (European Banking Institute)

"From FinTech to TechFin: The Regulatory Challenges of Data-Driven Finance"
Dirk Zetzsche, Ross Buckley, Douglas Arner, Janos Barberis (PhD candidate)
European Banking Institute Working Paper Series 2017, No 6
May 2017
Abstract: Financial technology (‘FinTech’) is transforming finance and challenging its regulation at an unprecedented rate. Two major trends stand out in the current period of FinTech development. The first is the speed of change driven by the commoditization of technology, Big Data analytics, machine learning and artificial intelligence. The second is the increasing number and variety of new entrants into the financial sector, including pre-existing technology and e-commerce companies. This paper considers the impact of these new entrants with their typically large pre-existing non-financial services customer bases. These firms (loosely termed ‘TechFins’) may be characterised by their capacity to leverage the data gathered in their primary business into financial services. In other words, TechFins represent an Uber moment in finance. This shift from financial intermediary (FinTech) to data intermediary (TechFin) raises implications for incumbent financial services firms, FinTech startups and regulators. This seachange calls for analysis to underpin regulatory approaches with a view to balancing the competing interests of innovation, development, financial stability and consumer protection. Click here to download the full paper.

Friday, May 12, 2017

New Issue of Hong Kong Law Journal (Part 1 of 2017)

Hong Kong Law Journal

Vol. 47, Part 1 of 2017
Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen

Table of Contents
Advanced Introduction to the Law of International Organizations, Jan Klabbers Amy Barrow
Title and Title Conflicts in respect of Intermediated Securities under English Law, Dr Wenwen Liang Guangjian Tu

Yahong Li Interviewed on Taiwanese Case of "Secondary Creation" and "Fair Use" (Ming Pao)

A Taiwanese man, Gu Amo (谷阿莫), has become a celebrity for making 5-6 minutes short films from movie footages and putting them on YouTube. He was recently sued by several movie studios for copyright infringement because, in addition to using the footages without authorisation, he also added his own sarcastic narratives to the short films, which has allegedly harmed the original movies’ reputation and market. Mr Gu argued that his films are secondary creations, thus are exempted from copyright liability under “fair use” doctrine. 
     What is a “secondary creation” and how should “fair use” doctrine be applied to interpret this case? Recently, Ming Pao interviewed Yahong Li on these issues (see Ming Pao, 5 May 2017). Dr Li noted that “secondary creation” is not a legal concept and is not clearly defined. It shall not be confused with derivative work which is an adaptation from an original work into a new form (e.g., a novel to a movie) and needs permission from copyright owner. “Secondary creation” is similar to so-called “user generated contents” (UGC) which may be exempted from copyright liability under the doctrine of “fair use” (or as “fair dealing” under Canadian Copyright Act) based on the assessment of four factors: whether the use is commercial and transformative; whether the original work is creative and well-known; how much (quantitatively and qualitatively) of the original works are used; and whether the new work substituted the original work in the market. These factors are not all favourable to Mr Gu in this case because he had directly taken many key footages from creative films, which had resulted in some indirect profits for him and allegedly market harm to movie studios. 
     Dr Li remarked that, on one hand, the ultimate aim of copyright is to promote public access to creative works, and protecting copyright is only a means to achieve this aim. Encouraging users to create based on existing works is particularly important in a world where the traditional users have become prosumers (producer + consumer). In this regard, Hong Kong’s failure to adopt the Copyright (Amendment) Bill may have a detrimental impact on users’ creation. On the other hand, law reform also needs to consider how to encourage true creation that are beneficial to culture and society. As the quality of Gu’s works is generally low and does not represent a true spirit of creation, the defeat of Mr. Gu in this case, if he eventually loses the case, will not have a chilling effect on other “secondary creations”.  Click here to read the full article in Chinese.

Thursday, May 4, 2017

Marco Wan Comments on the Hong Kong Civil Servants Same Sex Benefits Case (HKFP & SCMP)

"Gay rights only attainable in court, as Hong Kong remains passive to ensuring equality, says LGBT advocate"
Ellie Ng
Hong Kong Free Press
2 May 2017
LGBT rights advocate Jimmy Sham Tsz-kit says Hong Kong’s gay community can only hope for social change through the judicial system because the government is passive in tackling sexual orientation discrimination.
     “Gay rights can only be fought in the courts. The government rarely takes the initiative to review its policies and ensure equal rights for gay people,” Sham, of civil group Rainbow Action said on an RTHK programme on Tuesday.
     Sham’s remarks came after a landmark decision at the High Court last Friday, which ruled that gay civil servants are entitled to welfare benefits for their spouses. The ruling will take effect on September 1.
     “The gay community is happy about the ruling,” Sham said. “At least it is better than having no change at all.”
     But he said there is still a long way to go for attaining real equality for gay people. For example, he said, many LGBTQ people face “serious discrimination” at their workplaces...
     Marco Wan Man-ho, an associate professor of law at the University of Hong Kong, said the difference is owing to the fact that Hong Kong’s tax law states clearly that marriage is only between a man and a woman, while the Civil Service Regulations stipulate that “spouses” may enjoy welfare benefits without defining the term.
     The court held that it would be impossible for gay couples to enjoy welfare benefits if the term refers only to heterosexual partners, thereby constituting discrimination on the grounds of sexual orientation, Wan said... Click here to read the full article.

Nikki Sun
South China Morning Post
2 May 2017
The leader of a Hong Kong religious pressure group has accused a judge of exceeding his authority by wrongly interpreting the meaning of marriage in the city, following a landmark ruling that allows a gay civil servant to claim the same benefits for his spouse as his heterosexual colleagues.
     Others, however, feel that the government should offer even more legal protections to the gay community. During a heated debate on an RTHK radio programme on Tuesday, Rainbow Action spokesman Jimmy Sham Tsz-kit called for the implementation of an anti-discrimination law...
     Marco Wan, associate professor at the University of Hong Kong’s law school, said the case did not challenge the definition of marriage. Instead the judicial review focused only on whether the act of not granting benefits to civil servants’ gay spouses was lawful... Click here to read the full article.

Marco Wan also appeared as a panelist on RTHK Radio 3's morning programme, Backchat, on 5 May 2017.  The discussion was titled "Recognition of Same-Sex Marriage in Hong Kong" with the following introduction:
"Has Hong Kong moved a step closer to recognizing same sex marriage after a landmark court judgment upheld the right of a gay civil servant to claim the same benefits for his spouse as his heterosexual colleagues. The judge in the case did emphasize that he was not ruling on whether same sex marriages should be allowed in Hong Kong, describing that controversial question as a matter which should be decided by Legco not the courts. But some Christian groups are not convinced and have angrily denounced the judgment, in some cases using extremely strong language. So what do you think? Is Hong Kong ready to recognize same sex marriages?"
  Click here to listen to the programme.