Monday, July 31, 2017

Hualing Fu on China's Striking Anticorruption Adventure (new book chapter)

Hualing Fu
in Weitseng Chen (ed), The Beijing Consensus? How China Has Changed Western Ideas of Law and Economic Development (Cambridge University Press, April 2017),  pp. 249-274
Introduction: China is a high-corruption country and the ruling Communist Party (“the Party”) has made anticorruption enforcement a top priority. China is also well known for her authoritarian decisiveness in policy making and her effectiveness in policy implementation with a centralized political control contrasting sharply with a decentralized economic policy. This chapter examines two key aspects of this formulation. First, how has the authoritarian characteristic affected China’s anticorruption enforcement; and second, how is China different from other countries, authoritarian or otherwise, in this regard? 
     There has been an ongoing debate between a “convergence theory” and a “divergence theory” on China’s political-legal development. According to the convergence story, nations different in their level of legal development largely because of the different levels of economic growth. China is significantly different from high-income countries because China, as a middle-income country, lacks resources and capacity to support an advanced system. But as China progresses economically, social and legal changes are bound to follow. Consequently, gaps in the legal system will be filled, and the distance between a mature legal system and an emerging legal system will be narrowed. Substantive convergence is the destination of all legal systems even though it may appear in different forms. There is an incremental trajectory along which nations develop their legal system, in a thin sense, and while sequencing in a certain sense may be important, all nations can achieve that trajectory once the necessary conditions are present. In the anticorruption field, the Party proves to be resolute and innovative in designing anticorruption strategies and has demonstrated both the will and ability to put corruption under effective control by resorting to measures that are not fundamentally different from international best practices. 
     While the divergence theory has a long spectrum of arguments, its central argument is that China has a unique system that renders convergence impossible. In Minxin Pei’s cynical formulation of a “trap thesis”, China’s political model suffers from fatal flaws and is not self-correcting. Following a liberal line of conceptualization, Pei argues that, without meaningful political competition, separation of powers, independent legal institutions and active participation from the civil society, China is unlikely to overcome its corruption problem that is inherent in the authoritarian system. As a result, the regime becomes increasingly fragile structurally as it sinks deeper into a trap. Any incremental reform, which may prolong regime survival, cannot lead to a fundamental political transformation. Consequently, Pei provides a provocative and dim view of political corruption in China. He concludes that corruption will continue to entrench itself and the anticorruption mechanisms that rely on the Party’s internal disciplinary framework, without the support of law and legal institutions, will not be able to stop the further spread of the trend. As a result, the regime must collapse on tis own weight before any transformation can occur. Pei’s trap thesis has been shared by many others who, in various ways, present a China-collapse thesis. 
     Others have turned Pei’s thesis on its head and argued that what appears to be fatal for Pei is precisely where China’s strength lies and contributes to China’s authoritarian resilience. Striking a positive note, many have argued that, instead of converging into a Western political model, China may have discovered a distinct development model based on its effective and decisive political leadership or communitarian social structure. China’s anticorruption efforts deliver precisely because it is led and controlled by the Party at the macro-level. This anticorruption model is legitimate and effective because it is embedded within the Chinese reality and the cultural milieu. Seen from this perspective, China’s political system, including its anti-corruption regime works effectively in these Chinese circumstances. 
     This chapter discusses China’s anticorruption enforcement within the context of the convergence/divergence debate and examines the degree to which the Chinese anticorruption model converges or diverges from the prevailing “international best practice” that is commonly observed in the high-income/low-corruption countries. Specifically this chapter will also discuss whether China could develop an anticorruption system that operates within a rule-based legal framework. The principal argument is that China’s anticorruption practice manifests certain core features that may be unique to the Chinese political context and those features show most strikingly at the height of an anticorruption campaign. But if we look beyond an exceptional “strike-hard campaign” that targets the “tigers”, shift the focus to the more routine enforcement against “files” and in particular, observe China’s anticorruption enforcement for a longer time span, it becomes clearer that China does not operate an anticorruption model sui generis. As the anticorruption storm dies down (as it will naturally occur), the enforcement will become more routine, regularized, and institutional. When that happens, the Chinese anticorruption model, if any, will appear no different from models elsewhere. 
     This chapter is divided into five parts. Following this introduction, Part II introduces, in broad strokes, the core features of the internal disciplinary inspection committee (jiwei) of the Party. Jiwei has come to political prominence in the Xi government and is becoming the most powerful force in the Party apparatus. This part explains the political meaning of Party discipline and the core institutional design that renders the mechanism effective. Yet, despite the ostensible politicization of anti-corruption, the jiwei mechanism, shares some core characteristics with the most successful anticorruption stories in other authoritarian systems that one may observe in Hong Kong or Singapore. Part III then moves beyond jiwei to study the much marginalized and neglected legal anticorruption system in China and its interaction with jiwei. While fundamental differences between the two systems remain, they have, over the years, moved closer to one another and have the potential to replicate each other’s structure and modus operandi. Part VI examines the anticorruption mechanism from a historical perspective and offers insights on the degree to which law is relevant to anticorruption enforcement. Part V concludes this chapter... Click here to download the chapter from SSRN.

Friday, July 28, 2017

Albert Chen on Constitutions, Constitutional Practice and Constitutionalism in East Asia (Routledge Handbook of Asian Law)

"Constitutions, Constitutional Practice and Constitutionalism in East Asia"
Albert Chen
in Christoph Antons (ed), Routledge Handbook of Asian Law (Routledge, Nov 2016), pp 75-93.
Abstract: The constitutions and constitutional practices of states in East and Southeast Asia (hereafter 'East Asia') provide worthwhile case studies for scholars of comparative constitutional law, constitutional theory and politics. This chapter seeks to provide a conceptual framework for such comparative studies and discuss some key components of the existing literature on the subject. It is hope that the chapter can serve as a point of departure or guide for further research into the topic. Given space limitations, the treatment in this chapter is necessarily selective and incomplete, in terms of both the countries and the literature included in the discussion. 

Wednesday, July 26, 2017

Yahong Li Comments on Hong Kong's High Speed Railway Patent Infringement Case (new book chapter)

in Kung-Chung LIU (eds), Annotated Leading Patent Cases in Major Asian Jurisdictions (City University of Hong Kong Press, 2017), pp 69-83. 
Summary: This is a recent patent infringement case in Hong Kong (SNE Engineering Co Ltd v Hsin Chong Construction Co Ltd [2014] 2 HKLRD 822 (CFI)), which involves a short term patent, Patent No. 1150416 for a construction method for extracting building piles from the ground. The plaintiff claimed that its short term patent was infringed by the defendant, while the defendant raised the defense of patent invalidly due to lack of sufficient disclosure and lack of novelty and inventive steps. The High Court invalidated the patent, and dismissed the claim of infringement. However, its reasoning leaves room for improvement, and implicates the need for future reform of Hong Kong’s short-term patent system but not the court system.

Monday, July 24, 2017

Richard Wu's Study of Ethical Values of Law Students in Beijing, Taipei and Hong Kong (J Comp Law)

"A Comparative and Empirical Study of Ethical Values of Law Students in Beijing, Taipei and Hong Kong: Implications for Legal Education and Law Schools in Mainland China"
April 2017, Volume 11, Issue 2, pp 258-282 
Abstract: This article investigates empirically the ethical values of law students in the Greater China Region in their final two years of legal education by surveying 1,027 students in Hong Kong, Beijing and Taipei. It first compares the demographics of law students in these three Chinese cities before examining their responses to different ethical dilemmas. Our data revealed a feminization of legal education in that women are dominating the law student population in Mainland China. It also appears that a new generation of lawyers emerging in Mainland China who attach more importance to the value of 'work-life balance'. On balance of the findings, this article argues that Chinese law schools should cultivate virtues like honesty, perspectives and fairness among their students to help them encounter ethical dilemmas. They should also nurture professionalism among law students in their 'ethics of duties', 'ethics of aspirations', and 'personal conscience'. Finally our data did not reveal any negative impact of law school experience on the ethical values of law students in Mainland China, which findings contradict the argument that legal education has diminished law students' values as suggested in some existing literature. 

Thursday, July 20, 2017

Richard Wu's Empirical Study of Hong Kong Law Students' Ethical Values (J of Legal Ethics)

Journal of Legal Ethics
Mar 2017, published online, pp 1-26
Abstract: This article investigates empirically the ethical values of law students in Hong Kong in their final two years of legal education. It first analyses the demographics of these law students before examining their responses to different ethical dilemmas. The findings suggest that feminisation has taken place in Hong Kong law schools. The study also found that a new generation of law students is emerging in Hong Kong that put more emphasis on the value of work-life balance. Finally, the article argues that common law education has enhanced the professionalism of law students in Hong Kong and has contributed to their development of such professional values as ‘professional integrity’, ‘obedience to the law’ and ‘civil duty’.

Wednesday, July 19, 2017

Guide to Legislative Interpretation in China (Prof Hualing Fu)

In this short guide, I examine legislative interpretation by the Standing Committee of the National People’s Congress (NPC). I make two related points: 
   (1) It may not be possible to distinguish legislative interpretation from legislative amendment. While they are conceptually distinct, it is a distinction without differences as a matter of legislative practice; and 
 (2) Because of the fuzziness between interpretation and amendment, legislative interpretation, unless otherwise stated, does not have retrospective effect. 
     According to the Decision on Legal Interpretation Work, promulgated by the NPC Standing Committee in 1981, where a law or decision that has been promulgated by the NPC needs further clarification or supplementary regulations, the NPC Standing Committee may give interpretations or make regulations through decisions.
     Although the Decision on Legal Interpretation Work refers to both clarification (明确界限) and supplementary regulation (补充规定), it is not clearly stated whether an interpretation is limited to clarification of a legal provision (and supplementation can only be done through a new enactment) or a legal interpretation can both clarify and supplement a legal provision. 
     The uncertainty in the 1981 Decision may have contributed in a commonly held view that, in the Chinese legal system, a legislative interpretation may both clarify and supplement a legal provision. The Constitution 1982 specifies the law-making powers of the NPC and that of its Standing Committee. The Constitution refers to three ways through which the Standing Committee may act in relation to a law that has been promulgated by the NPC. 
     Article 67 (3) states that the Standing Committee can “supplement and amend” laws that have been promulgated by the NPC; and Article 67 (4) states that the Standing Committee has the power interpret law.
     While Standing Committee 67 (3) may supplement and amend laws on the condition that the supplementation and amendment do not violate the basic principles of the legal provisions to be supplemented and amended, there is no such condition imposed on interpretation, implicitly because interpretation, being different from supplementation and amendment, is limited to the clarification of the meaning of law which it already has.
     The Constitution does not delineate the boundaries between supplementation and amendment on one hand and interpretation on the other, but it says clearly that interpretation, conceptually, is not supplementation. 
      It is the Legislation Law that finally sets a clear perimeter for legislative interpretation. Under the Legislation Law, legislative interpretation has two meanings: 1) further clarification of a legal provision, and 2) the application of an existing legal provision to a new situation.  But is this a real distinction between interpretation and supplementation, or a distinction with a difference, as the Court of Appeal in Chief Executive v President of the Legislative Council [2017] 1 HKLRD 460, [55] doubted?  I have looked at the matter and I regret I cannot answer the question with any confidence. 
     There are to date over 10 Legislative Interpretations by the Standing Committee on China’s Criminal Law and most of the Interpretations, in form, aim to clarify the meaning of terms or provisions. 
     The 1st interpretation, given by the Standing Committee on April 2002, related to the circumstances in which members of the Village Committee, a statutory authority exercising self-governing power within a village, are deemed to be civil servants and subject to China’s anti-corruption law. There were different legal views on the applicability of anti-corruption law on members of village villages and the 2002 Interpretation specifies the circumstances in which the law applies to Village Committee members. Under the Interpretation, village committee members are deemed to be civil servants and punishable under the anti-corruption law when they exercise a number of enumerated public functions on behalf of the government.  Most of the legislative interpretation thus “explains” the meaning of a legal term in similar ways. 
     Another 2002 Interpretation, for example, clarifies the meaning of misappropriating public funds for “personal use” by giving three examples which should be regarded as “personal use”. Under the Interpretation, “for personal use” is given a broad interpretation to include a personal decision to allow the fund of one organisation to be used by another, even though the relevant decision-maker did not personally use the fund as such. 
     Yet another 2002 Interpretation on persons with capacity to commit an offence of dereliction of duty, stating that anyone who is entrusted by the state to perform public services can be charged with the offence regardless of whether that person concerned is a properly enlisted state functionary. 
     A 2004 Interpretation tries to clarify the meaning of credit card within the meaning of criminal law. According to the Interpretation, credit card “refers to the electronic payment cards issued by the commercial banks or other financial institutions, which possesses all or some of the functions of consumption payment, receiving loans, transfer account settlement, cash deposit or withdrawal.” Effectively, credit card within the meaning of Criminal Law includes debit cards and other bank cards.
     A 2005 Interpretation clarifies the meaning of “other invoices for tax rebate or tax offset” and defines them as “any receipt, payment voucher or tax payment voucher that are not the special invoices for value-added tax but may be used for tax rebates or tax offset.” 
     Clarification of law can go into great detail that would otherwise, in the Mainland legal tradition, have been left to the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP). Those questions are returned to the Standing Committee for clarification largely because of the failure on the part of the SPC and SPP to achieve a consensus, which is often required in the Chinese criminal process. 
     The Interpretation of Article 313 of the Criminal Law is a good example. Article 313 relates to the enforcement of a court order and punishes anyone who is able to but refuses to comply with such an order. The Standing Committee provides a list of the types of decisions that will be deemed as court orders, including mediation agreement that is legally effective and arbitral award. The Interpretation further provides a long list of circumstances, which can be regarded as satisfying the test of being able to comply with a court order but refusing to do so. That seems clearly a function that should have done by the SPC, but in the Mainland case where a competent judiciary is occasionally absent, the legislature has to step in to fill the vacuum. 
      Legislative interpretation thus provides a dispute resolution function and a coordination function. The disagreement on the definition of organised crime between the SPC and the SPP is illustrative. The SPC was of the view, as expressed through its own judicial interpretation, that, as an element of the offence of organised crime, there must be the existence of the so-called “protective umbrella”, that is illegal protection of a criminal organisation by government officials, making the crime hard to prove. The police and prosecution disagreed and their disagreement escalated and finally reached the Standing Committee, as the 1981 Decision demanded. In a 2002 Interpretation, the Standing Committee clarified Article 294 of the criminal law to the effect that a “protective umbrella” is one of sufficient conditions for organised crime. But it is not a necessary condition. 
     The meaning of “new situation” in the second limb of the Legislative Law is not clear. It may be “new” in the sense that a new type of criminal activities has emerged and it is uncertain whether the existing criminal law can be extended to punish those new offences. Local practices vary, disagreement abounds and an authoritative determination is needed, often on an urgent basis. An interpretation by the Standing Committee is needed to confirm whether an existing criminal provision can be extended to the new situation. Are “fossils of ancient vertebrates and ancient humans of scientific significance” “cultural relics” within the meaning of provisions of the Criminal Law? A number of articles in the criminal law punish any person who smuggles, steals, damages, sells or illegally transfers cultural relics. Without any elaboration, the Standing Committee says relevant article protecting cultural relics cover “fossils of ancient vertebrates and ancient humans of scientific significance”. Can the criminal offence of defrauding public and private property be used against the newly emerged offence of cheating on social security schemes? The Standing Committee issued an Interpretation in 2014 and answered the question in the positive. More crimes are being committed in the name of a corporation, an organisation or otherwise a work unit. Should corporate liability, which exists as a general principle, be extended to a specific offence which does not expressly allow corporate liability? The Standing Committee said "no" in a 2014 Interpretation excluding corporate liability unless it is specifically provided for in relation to a particular offence. 
     It may be “new” in the sense that legal change elsewhere has taken place and is having an impact on criminal law and an interpretation is needed to reflect the change. Criminal offences in relation to companies are subject to legal requirements in other legislation pertinent on company registration and operation. Legal changes in the Company Law would cause corresponding changes in the Criminal law and an interpretation may be needed to reflect that “new situation.” Thus, according to a 2014 Interpretation “company” within the meaning of Articles 158 and 159 of the Criminal Law refers only to companies that are subject to a paid-in capital requirement for company registration. Before 2014, Chinese company law required a certain amount of capital to be properly deposited before a company could be properly registered and Articles 158 and 159 of the criminal law punishes, inter alia, the offence of falsifying paid-in capital. That interpretation was made in response to the change in the Company Law, which waived the paid-in capital requirement for most companies. 
     So far so good. But the difficulty is this: there is no reasoning in these interpretations to distinguish an interpretation from a supplementation. When the Standing Committee decides that credit card includes debit card, cultural relic includes fossils of ancient vertebrates, and court order includes a mediation agreement, it, in its typical manner, does not offer explanations. It tells what it is but not why it is. Without adequate reasoning, it is impossible to second-guess where an interpretation ends and where a supplementation begins, and it is difficult to say the formal distinction between interpretation and supplementation has much substance in Chinese law. 
     Chinese law does have a design to curb any potential interpretative excess and abuse, however. That is to disallow any retrospective impact of an interpretation and treat an interpretation as legislation. While the Standing Committee has never stated explicitly and clearly whether a legal interpretation has retrospective effect, the SPC, with clear endorsement from the Standing Committee, has enacted Several Provisions on the Work of Judicial Interpretation in 2007. Article 25 (2) states that a legal interpretation takes effect on the day of its promulgation, unless the legal interpretation states otherwise. Legal interpretation is an integral entity and governed by the same rules. The interpretation rules of the SPC, I submit, apply to all legal interpretation in China, and, therefore, legislative interpretation does not have retrospective effect under Chinese law unless the Standing Committee of the NPC explicitly states the contrary.  Written by Professor Hualing Fu.

HKU Law Faculty Members Comment on the Disqualification of Four Hong Kong Legislators

Cheng Chan Lan Yue Professor in Constitutional Law, Professor Albert Chen, write an article published in Ming Pao on 18 July 2017 calling for discretionary treatment on issues of legal costs and disgorgement of salaries and benefits in respect of the four legislators who were recently disqualified for failing properly to take their oath of office.

On 14 July, the Court of First Instance of the High Court of Hong Kong decided the case brought by the government questioning the qualification of four members of the Legislative Council (LegCo), for they declining or neglecting to take the LegCo Oath. The court ruled that the four members failed to meet the statutory requirements of the oath taking before assume office of the LegCo.
     It is noteworthy that, although this case and Leung and Yau’s case in last year are both about the oath taking and disqualification of membership, the legal bases the court rules upon in the two proceedings are not the same.
     In the case of Leung and Yau, the Honourable Justice Au, Judge of the Court of First Instance of the High Court, points out that even if the court does not refer to the Interpretation made by the Standing Committee of the National People's Congress in November last year (NPCSC Interpretation), the two members should still be disqualified for their denial of oath according to Hong Kong local laws (such as the Oaths and Declarations Ordinance and the relevant provisions of the Basic Law). The main issue is not whether the words and deeds of the two members constitute a denial of oath, the focus of the debate lies in whether the court has the power and should intervene in the "internal business" of the LegCo or the decision made by the President of the LegCo is amenable to judicial review.
     However, in the present judgment concerning the four LegCo members, the same Honourable Justice Au, grounds the ruling on the NPCSC Interpretation and precedents of other Hong Kong courts, as well as the Basic Law and local ordinance. From the judgment, we can see that the NPCSC Interpretation made in last November is one of the important legal bases of the decision. The ruling has also dealt with the legal issues about the retrospective effect of the NPCSC Interpretation and when should it come into force... Click here to read the article in full in Chinese.  Professor Chen was also interviewed in Cantonese on Cable TV news, click here to view.

Kimmy Chung, Ng Kang-chung, Ajay Singh
South China Morning Post
18 July 2017
Legal experts warn that more Hong Kong pan-democratic lawmakers face the same fate as their six colleagues barred over improper oath-taking in the Legislative Council. One legal scholar has even proposed allowing a judge to ­administer oath-taking to avoid similar troubles in future.  At least nine more lawmakers who shouted political slogans or tore up documents during their swearing-in last October may be in a “highly risky” position.
     These lawmakers are currently facing, or have faced judicial reviews: Raymond Chan Chi-chuen of People Power, Cheng Chung-tai of Civic Passion, non-affiliated localist Shiu Ka-chun, social activist Eddie Chu Hoi-dick, Democrats Andrew Wan Siu-kin, Lam Cheuk-ting, Helena Wong Pik-wan, and Roy Kwong Chun-yu, and the Labour Party’s Dr Fernando Cheung Chiu-hung.
     Professor Simon Young, of the faculty of law at the University of Hong Kong, said: “All of [the nine pan-democrats] are liable to be unseated because their oath-taking lacked sufficient ­sincerity or solemnity or was ­otherwise defective in form.
     “This is the consequence of the ­judgment. We must now seriously ­consider whether the system should be reformed such that High Court judges will administer oaths directly.”
     However, Albert Chen Hung-yee, a member of the Basic Law Committee, did not believe a judge was needed for such a task...  Click here to read the full article.

Chris Lau, Julia Hollingsworth, Tony Cheung
South China Morning Post
15 July 2017
The far-reaching judgment disqualifying four lawmakers from Hong Kong’s legislature strongly leaned on Beijing’s interpretation of the oath-taking rules and has “changed the rules of the game” in the Legislative Council, lawyers
     In unseating the lawmakers on Friday, Mr Justice Thomas Au Hing-cheung extended the scope of the rules governing swearing-in ceremonies to include statements made before and after legislators’ oaths, meaning their pledges could now be deemed invalid even if they read the oath itself correctly.
     Previously, the rules had only been applied to the oath itself – not statements made either side of it, University of Hong Kong principal law lecturer Eric Cheung Tat-ming said.
     “It changes the rules of the game,” he said... Click here to read the full article.

Po Jen Yap on New Democracies and Novel Remedies (Public Law)

"New Democracies and Novel Remedies"
Public Law
Abstract: Discusses the novel constitutional remedies adopted by courts in emerging democracies to ensure the Government's observance of the law. Reviews, with reference to case law, the approach of courts in South Africa, India and Hong Kong to: (1) the granting of engagement orders; (2) the making of suspension orders with "bite"; and (3) the making of judicial directives in response to political incompetence or intransigence.

Scott Veitch on Law in the Risk Society, Challenging Legal Concepts (new book chapter)

"Law in the Risk Society: Challenging Legal Concepts"
in Ubaldus de Vries and John Fanning (eds), Law in the Risk Society (Eleven International Publishing, 2017) pp 39-60.
Introduction: Ulrich Beck's seminal contribution to sociological enquiry lies in the development of his theory of "risk society". In this essay I outline several keys aspects of this, and make specific some implications for the role of law and legal institutions. I then proceed to consider three examples whereby the theory of risk society may be further enhanced, albeit with some caution. These examples refer to the implications of 'virtue risk society'; the question of competing modernities (with reference to China) and the politics of the commons today. I conclude with some reflections on the matter of legal responses to the condition Beck describes.

Friday, July 14, 2017

Michael Ng on Press Censorship and Rule of Law in Hong Kong 1850s to 1940s (Law & Literature)

Law & Literature
July 2017, published online, pp 1-32
Abstract: This article constitutes the first in-depth study of press censorship in British Hong Kong during the first century of colonial rule. By revealing how the press, the Chinese press in particular, was continuously and systematically monitored and pervasively censored through the collaborative efforts of executive actions, legislative provisions and judicial decisions, this article further posits that the common law system practiced in British Hong Kong during the period under study was complicit in the imposition of an authoritarian form of law and order, and was more interested in preserving the British Empire's overseas territorial and economic possessions and managing the power equation in the region than in safeguarding individual liberties in Hong Kong. Hong Kong is often praised for its rule-of-law colonial legacy, but this article argues that such narrative does not stand up to the scrutiny of archival study. The English law in Hong Kong history, rather than constituting a lens through which one can witness Hong Kong's quest for modernity, is more akin to a mirror reflecting an ongoing cycle of coercion and resistance through law. Drawing on unexplored archival sources, the article first discusses how the colonial government used libel lawsuits to punish the press for criticism of the government in the 19th century, before turning to describing in detail the daily mandatory vetting of Chinese newspapers by colonial censors under the office of the Secretary for Chinese Affairs and related prosecution cases in the early 20th century. The paper concludes with an exploration of the tension between the notion of a free press and the governance fears of the British Empire in the Far East revealed by this history of silencing the press in Hong Kong.  

Sunday, July 9, 2017

Peter Chau Critiques Loss-Based Retributive Justifications of Punishment (OJLS)

"Loss-Based Retributive Justifications of Punishment"
Peter Chau
Oxford Journal of Legal Studies
May 2017, Advance Article
Abstract: Retributive justifications of punishment that focus on the gain of offenders, like those offered by Herbert Morris and Jeffrie Murphy, have been subjected to sustained and persuasive criticism. Three authors (Daniel McDermott, Richard Lippke and Göran Duus-Otterström) have, in their fairly recent works, offered retributive justifications of punishment that focus instead on the loss suffered by victims. I will argue that these loss-based justifications, despite their ingenuity, suffer from serious defects.

Saturday, July 8, 2017

Hualing Fu on President Xi Jinping's Visit to Hong Kong (ChinaFile)

Hualing Fu contributed to a ChinaFile Conversation on President Xi Jinping's recent visit to Hong Kong.  The full article can be accessed here.  In Hong Kong, a proper dose of cynicism is healthy and helpful in understanding Chinese politics, but excessive cynicism dampens Hong Kong’s spirit and impedes a constructive dialogue that is much needed for Hong Kong to move out of the current impasse. Did President Xi come to Hong Kong to deliver a harsh and intimidating message? Clearly not and there is no need for him to do so.
     Did Xi wag his finger at Hong Kong? Yes he did. He scolded those who advocate Hong Kong’s independence, he reaffirmed China’s broadly defined bottom-lines in relation to the authority of Central Authorities, national security and sovereignty; and he gave warnings to those who may use Hong Kong as a basis for political and religious infiltration and who contemplate and envisage color revolution. This is the first time for a state leader to use the term of infiltration/sabotage to capture the perceived risk that Hong Kong may pose to China. It is a significant expansion of the doctrinal concern that Hong Kong serves as a potential subversive base from which to challenge the Chinese political governance system.
     Having expressed these security concerns, Xi delivered three positive messages that are significant for Hong Kong. First, Xi reminded the people in Hong Kong of the city’s glorious past and of the fact that Hong Kong has made outstanding contributions to China. Xi could have gone one step further to make a stronger statement that China’s economic miracle would not have been possible without Hong Kong’s helping hands. Xi said China acknowledges and appreciates Hong Kong’s contributions. That thank-you note from Xi resonates well in Hong Kong. Personally, witnessing all the attacks and occasional insults from the Mainland in the past few years, I have been waiting for someone to acknowledge Hong Kong’s historical contributions. And Xi has now just done this... Click here to read the full article.

Hualing Fu's Essay on the Future of Human Rights Lawyering in China (Made in China)

"What Future is there for Human Rights Lawyering in China?"
Hualing Fu
Made in China
2017, Vol 2, Issue 2, pp 12-15
Abstract: In the aftermath of the latest wave of repression, Chinese human rights lawyers have started to reflect on their past successes and failures. They also began to express anxiety, frustration, and confusion about their work. Ultimately all the soul searching boils down to one question: is there a future for human rights lawyering in China as we know it? To answer this question, this essay analyses the practices of human rights lawyering, and examines the circumstances in which socio-legal mobilisation may fail or succeed.  Click here to download the full issue.

Friday, July 7, 2017

New Issue of Asia-Pacific Journal on Human Rights and the Law, 2017, Vol 18(1)

Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden


1. Inaccessible Public Bus Services in Thailand
Naparat Kranrattanasuit
Volume 18, Issue 1, pages 1 - 27, 2017

2. Indonesia’s Human Rights Court: Need for Reform
Yustina Trihoni Nalesti Dewi, Grant R Niemann and Marsudi Triatmodjo
Volume 18, Issue 1, pages 28 - 47, 2017

3. Expanding the Role of the Philippine Commission on Human Rights for the Protection of Gender Equality in the Workplace: Practical Lessons from Canada
Emily Sanchez Salcedo
Volume 18, Issue 1, pages 48 - 77, 2017

4. Human Rights between the Local and Global: A Case Study of the Seoul Human Rights Ombudsperson
Andrew Wolman
Volume 18, Issue 1, pages 78 - 107, 2017

Review Article

5. Analysis of Right to Water Needs Further Depth
Agnes Chong (HKU PhD Candidate)
Volume 18, Issue 1, pages 109 - 116, 2017

Thursday, July 6, 2017

Puja Kapai Interviewed on Hong Kong and the Torture Convention (JUST ASIA)

Puja Kapai was recently interviewed by the Asian Human Rights Commission's JUST ASIA programme.  The caption for the interview read as follows:
This week, to mark the International Day in Support of Victims of Torture, celebrated annually on June 26, Just Asia has a special report on Hong Kong’s plan to withdraw from the UN Convention against Torture.
  The reason for such a withdrawal is a misguided attempt to address the rise in torture protection claimants in Hong Kong and block“fake” refugees, as well as solve the issue of illegal workers.
  Just Asia speaks to three prominent persons in the city to discuss their views. Puja Kapai is the Director of Hong Kong University’s Centre for Comparative and Public Law; Mark Daly is a human rights lawyer with Daly and Associates; as is Patricia Ann Ho. The three discuss how such a withdrawal will impact Hong Kong’s international standing, Hong Kong’s human rights protections, and whether it will truly make a difference to the city’s numerous torture claimants.

Two New Scholars Join HKU Faculty of Law, Further Strengthening Research in Competition Law and Constitutional Law

Welcome to Dr Angela Zhang (张湖月) and Dr Alex Schwartz who have recently joined our Faculty as Associate Professor and Assistant Professor, respectively.  In 2017-2018, Dr Zhang will be teaching Introduction to Chinese Law (LLB/LLM/JD) and Competition Law and Policy in China (LLM), and Dr Schwartz will be teaching Business Associations (LLB), Guided Research (LLB) and Dissertation (JD).
    Dr Zhang's research focuses on applying economic analysis to the study of transnational legal issues. Specifically, she seeks to explore how institutional factors drive the legal outcomes affecting global businesses. She is currently working on two empirical projects: one on the clash between antitrust and China and the other on the behaviour of EU judges. Though on leave, Dr Zhang retains her appointment as Senior Lecturer in competition law and trade at King’s College London. 
     Dr Zhang's work has been published by academic journals including Stanford Journal of International Law, University of Pennsylvania Journal of International Law, Cornell International Law Journal and Journal of Competition Law and Economics. In 2014, she received the Concurrence Antitrust Writing Award for her study on bureaucratic politics in Chinese antitrust law. In 2015, her work on EU judges was chosen to be presented at the Stanford International Junior Faculty Forum. Angela is also frequently invited to speak at antitrust conferences in the United States, Europe and Asia. Her research has attracted media inquiries from The Economist, The New York Times and Reuters, and she regularly contributes op-eds to the popular press. 
     Before joining academia, she practiced bankruptcy law at Debevoise & Plimpton in New York and antitrust law at Cleary Gottlieb Steen & Hamilton in Brussels. She also has practice experience in Beijing, Hong Kong and London. She was admitted to the New York bar in 2009. 
     Dr Zhang received her LLB from Peking University in 2004 and her JSD (2011), JD (2008) and LLM (2006) from the University of Chicago Law School. While at Chicago, she wrote her doctoral dissertation under the supervision of Judge Richard A Posner.

Dr Schwartz’s research is focused on courts and judicial behaviour, particularly in the context of deeply divided and transitional polities. He was previously Lecturer in Law at Queen’s University Belfast, where he was also an Associate Fellow of the Senator George J. Mitchell Institute for Global Peace, Security and Justice. Before that, Dr Schwartz was a Banting Fellow with the Department of Political Studies at Queen’s University (Canada), a visiting scholar at the Centre for the Study of Social Justice (Oxford) and a postdoctoral fellow with the Canada Research Chair in Quebec and Canadian Studies at L'Université du Québec à Montréal. Dr Schwartz has published articles in Law & Society Review, Oxford Journal of Legal Studies, Ratio Juris, International Journal on Minority and Group Rights, and Government and Opposition and he is co-editor of Rights in Divided Societies (Oxford: Hart Publishing, 2012). In addition to research on courts and judicial behaviour, Dr. Schwartz has a broad and eclectic interest in empirical legal studies and welcomes collaboration on quantitatively oriented projects in all areas of law.

Wednesday, July 5, 2017

Hong Kong's Involvement with International Tax Reform and BEPS (TLRP Tax Comment 6)

Adrian Sawyer
TLRP Tax Comments, No 6
Abstract: The Hong Kong Special Administrative Region (HKSAR) was initially a reluctant participant in major international tax reforms initiated by the OECD, including (automatic) exchange of information (AEOI). In more recent times, as outlined in an earlier paper by the author, the HKSAR has become an active participant working at the forefront of the Base Erosion and Profit Shifting (BEPS) initiatives, including being part of the ad hoc group that developed a multilateral instrument under BEPS Action 15. This paper provides a forward-looking overview of BEPS, outlines the HKSAR’s engagement with BEPS and international tax reform, and offer some thoughts on where BEPS may take us.
    Author: Dr Adrian Sawyer is Professor of Taxation, and Research Director for the School of Business and Economics, at the University of Canterbury, Private Bag 4800, Christchurch, NZ. This paper draws upon earlier work by the author while he was a visitor hosted by the Asian Institute of International Financial Law (AIIFL) and Taxation Law Research Programme (TLRP) at the University of Hong Kong.
     This TLRP Tax Comments (TTC) is a Working Paper and is also published as an AIIFL Working Paper No 21. The Author welcomes comments on this TTC as it is developed further for later formal publication. Adrian Sawyer’s email address is:  Please download the paper from here.

Tuesday, July 4, 2017

Amanda Whitfort Advises Legislative Panel on New Measures Needed to Address Wildlife Crimes and the Ivory Trade in Hong Kong

At a meeting of the Legislative Council (LegCo) Panel on Environmental Affairs on 6 June 2017, Associate Professor Amanda Whitfort addressed LegCo members on the Administration’s proposal to phase out the ivory trade in Hong Kong and enhance penalties for wildlife crimes. Legally, Hong Kong has an obligation to observe the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (to which China is a signatory) and the UN Convention on Biological Diversity (CBD), extended to Hong Kong in 2011. Trade in pre-CITES ivory is prohibited, but Hong Kong traders continue to sell ivory stocks they claim to have been legally imported before the CITES ban in 1990. A recent investigation by the Agriculture, Fisheries and Conservation Department of a shop selling ivory purported to be pre-CITES found that the ivory for sale was in fact illegal. 
     Whitfort argued that allowing any market for ivory in Hong Kong encourages poaching and smuggling, and permits traders to argue their stock is ethically sourced. The African elephant population is now at its lowest numbers in history and continued poaching threatens to cause their extinction. Whitfort told legislators that only when the trade is banned completely can Hong Kong claim to have played a role in ensuring a sustainable future for Africa’s elephants.
     Whitfort also addressed the Administration’s proposal to raise the maximum penalty for trade in endangered species, under the Protection of Endangered Species of Animals and Plants Ordinance Cap 586. The intention to raise the maximum penalty for trade in endangered species to 7 years’ imprisonment presents an opportunity to bring Hong Kong’s sanctions in line with overseas jurisdictions. Globally, wildlife crime is the fourth most lucrative black market, after drugs, people and arms smuggling. In Hong Kong, the average value of seizures in endangered species is currently second only to seizures under the Dangerous Drugs Ordinance, Cap 134
     However, Whitfort cautioned that raising penalties will not be enough to address the problem in Hong Kong. Studies repeatedly show Hong Kong to be a regional hub for trade in endangered species. Whitfort urged the government to officially recognize wildlife crime as organized and serious crime, permitting investigators to access the full range of powers provided under the Organised and Serious Crimes Ordinance, Cap 455. These include the use of coercive investigative powers to gather intelligence, the right to confiscate the proceeds of crime in the District Court and the Court of First Instance and the power to seek enhanced sentences in cases involving criminal gangs. Classifying illegal trade in endangered species as a form of organized and serious crime would also allow the Hong Kong government to identify, freeze and forfeit the significant assets of criminal enterprises involved in the illegal wildlife trade (as is the case with drug trafficking).  A video of Whitfort's oral deputations in LegCo can be viewed here.