Thursday, August 31, 2017

6th Asian Privacy Scholars Network International Conference @ HKU (27 Sept 2017)

"The 6th Asian Privacy Scholars Network International Conference" 
organized by The Law and Technology Centre of the Faculty of Law, HKU
Date: 27th September (Wed), 2017 
Time: 9:00 - 19:00 
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, Centennial Campus, 
The University of Hong Kong

The Law and Technology Centre of the Faculty of Law, The University of Hong Kong, has the pleasure to host the 6th APSN International Conference on the 27th September 2017.
     This conference coincides with the 39th International Conference of Data Protection and Privacy Commissioners which will take place in Hong Kong from the 25th to 29th September 2017. Government officials, legal practitioners, academics, advocates and representatives of business and non-governmental organizations across the world will gather at this international conference. It is an opportune moment for APSN members to meet up during this period to study the latest developments of privacy and data protection across the globe.
     Challenges of privacy and data protection evolves at a rapid pace on par with new technology development. This APSN International Conference aims to give an update on the latest development, trends and status in privacy and data protection. We hope to gain insights and draw on experience from our speakers on current issues, including but not limited to Big Data analytics, data-driven governance, artificial intelligence, algorithms, and cyber security.

For more details, please click: http://www.asianprivacy.org/apsn2017/ 

Monday, August 28, 2017

Syren Johnstone & Nigel Davis Analyse the CITIC Case in the Market Misconduct Tribunal (HK Lawyer)

Syren Johnstone & Nigel Davis
Hong Kong Lawyer
July 2017, published online
Introduction: The Market Misconduct Tribunal recently found that a no material adverse change (“no-MAC”) statement published by CITIC Limited in 2008 did not constitute market misconduct under s. 277 of the Securities and Futures Ordinance (“SFO”) because the statement was unlikely to influence the market price of CITIC securities, and because it was not materially false or misleading.
     This came as a surprise to many because at the time of the statement, directors of CITIC were aware of but had not disclosed to the market that it was facing significant mark-to-market losses on foreign currency derivative contracts. When disclosed to the market weeks later, CITIC’s share price plunged, wiping out around HK$20 billion, or two-thirds, of its market capitalisation.  This article identifies some of the more important issues raised by the Tribunal’s findings and the SFC’s decision not to appeal.  Click here to read the full article.

HKU Law Faculty Members Comment on the Recent Jailing of Hong Kong Protesters

Julia Hollingsworth and Chris Lau
South China Morning Post
25 August 2017
On the night of September 26, 2014, amid the glare of television cameras and floodlights, student leader Joshua Wong Chi-fung leapt onto a fence around ­government headquarters in ­Admiralty.
     As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow ­student leader Alex Chow Yong-kang, galvanised others into ­action...
     Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.
     The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s ­independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics...
     The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said. “This is natural. You see it in other societies,” he said...
     But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.
     Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role...
     His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers...

Cliff Buddle
South China Morning Post
27 August 2017
The jailing of three prominent student leaders involved in Hong Kong’s Occupy protests has sparked a crisis of confidence in the city’s legal system and rule of law...
     University of Hong Kong law professor Simon Young said there should be more transparency in situations where the secretary for justice overrules senior prosecutors. In Canada, he said, there is a legal requirement that public notice be given when the Attorney General takes over control of a prosecution from the DPP. “It tells everyone I am intervening here, I am taking over. That will naturally have possible political implications and can attract the scrutiny of parliament. At least there is transparency. We don’t have that here,” Young added...

Catherine Lai
Hong Kong Free Press
24 August 2017
Hong Kong’s justice secretary has defending the jailing of three democracy activists, slamming claims that it amounted to political persecution...
Law professor Johannes Chan said during a Commercial Radio programme in response to Yuen’s comments that he accepted his explanation for the timing of the review, but Yuen should explain in detail whether the DOJ’s decision to review the sentences were mixed with considerations outside of legal ones – in order to dispel citizen’s concerns.
     In a column on Wednesday, Chan said that the first magistrate’s decision to hand down a lenient sentence, as well as the Court of Appeal’s decision to give a deterrent sentence, were both within the judiciary’s scope of discretion.
    “Even if we don’t agree with the Court of Appeal’s final judgement, it should not influence our belief in the judiciary’s independence,” he wrote...


Thursday, August 24, 2017

Inna Amesheva on Environmental Degradation and Economic Development in China (Law & Development Review)

Inna Amesheva (PhD Candidate)
Law and Development Review
July 2017, published online ahead of print
Abstract: The author argues that the deterioration of the natural environment in China provides a persuasive reason to reorient China’s economic growth towards a more sustainable path. Reconciling the development and environment imperatives needs to become an urgent priority for the Chinese government in order to avert the cascading implications that will arise in terms of social unrest, loss of further development opportunities as well as deepening income inequality. This paper thus examines the inter-relationship between the current ecological challenge in China and the need for economic sustainability. It evaluates the extent of environmental damage in China and focuses on the environmental impact on development and social inequality. The paper then examines the recent legislative measures that have been taken by the Chinese government to address the problem of inefficient environmental monitoring. The author suggests that further reform is needed to achieve an economically and ecologically just pathway for China’s future. The paper therefore demonstrates that the environment–development challenge in China is mainly a challenge of governance. Resolving it will contribute to better environmental justice and development.

Wednesday, August 23, 2017

HKU Partners in Three Continent FinTech/RegTech Research Collaboration

International collaboration of law experts from three continents towards global FinTech and RegTech research

To support Hong Kong's aspirations of becoming a financial technology (FinTech) hub, Professor Douglas Arner from the Faculty of Law at the University of Hong Kong (HKU) has joined forces with law professors from Europe and Australia to cooperate in researching the law and regulation of FinTech.
     Professor Arner will partner with Professor Dirk Zetzsche (ADA Chair in Financial Law/Inclusive Finance) at the University of Luxembourg and Professor Ross Buckley at the University of New South Wales (UNSW) in Sydney, Australia to form an international law team based in three continents and three major global financial centres.
     The team, alongside other renowned researchers and FinTech regulators, will present their latest work at the third annual FinTech Conference organised by the University of Luxembourg's Research Unit in Law on 9 October 2017.
     Since embarking on their collaboration early this year, the three FinTech and regulatory technology (RegTech) experts, in cooperation with HKU PhD candidate Janos Barberis, founder of the SuperCharger FinTech Accelerator headquartered in Hong Kong, have produced four draft papers on the impact of big data on the financial system¹, the challenges of regulating FinTech², a theory of smart regulation that considers different regulatory tools and their role in enabling or restricting innovation³ as well as an analysis of liability risk and its impact on the use and set-up of blockchain⁴. Together, their works have been downloaded more than 27,000 times on the Social Science Research Network (SSRN) and they have published over 30 scholarly articles and book chapters in the past year.
     The financial centres of Luxembourg, Sydney and Hong Kong have been responding to rapid technological innovation and disruption recently. In Hong Kong, for example, the 2017 government's Policy Address pledged to establish the city as a hub for FinTech application and setting of standards for cutting-edge FinTech. Commenting on the cooperation, Professor Zetzsche (currently in the top 10% of the SSRN's top 3,000 law authors globally) said: "Smartly regulating financial innovation requires all stakeholders - the financial sector, start-ups, regulators and academics - to understand technology and law. Only global research is able to grasp the true speed and depth of these developments." He was supported in his assessment by Professor Arner (currently 7th of the SSRN's top 3,000 law authors globally): "Financial technology, through big data, artificial intelligence, regulatory technology, crowdfunding, smart contracts, etc. changes the fundamentals of our regulatory system. Only financial centres that adjust their regulatory environment will be able to maintain and develop further their relevance." The potential for FinTech is substantial, added Professor Buckley (9th of the SSRN's top 3,000 law authors globally): "FinTech can tackle issues of transaction, compliance and risk management costs. But these benefits can come at a price - exchanging human errors for risks stemming from information technology. A smart, analytical approach is needed and this is where academic research can make a fundamental difference."
     The team's global FinTech and RegTech research cooperation is supported by three funding bodies: Luxembourg's National Research Fund contributed to an Intermobility Programme "Smart Regulation - Towards a New Law for FinTech", the Australian Research Council funding of the project "Regulating a Revolution: A New Regulatory Model for Digital Finance" and the Hong Kong Research Grants Council Theme-based Research Scheme providing financial support for "Enhancing Hong Kong's Future as a Leading International Financial Centre". The FNR's Intermobility Programme allowed Professor Zetzsche to spend three months at UNSW Sydney, where the cooperation was formalised.

Notes
¹ See Zetzsche, Buckley, Arner, Barberis, "From FinTech to TechFin: The Regulatory Challenges of Data-Driven Finance," available online https://ssrn.com/abstract=2959925, forthcoming New York University Journal of Law & Business (2018).
² Arner, Zetzsche, Buckley, Barberis, "FinTech and RegTech: Enabling Innovation while Preserving Financial Stability", forthcoming Georgetown Journal of International Affairs (2018).
³ Zetzsche, Buckley, Arner, Barberis, "Regulating a Revolution: From Regulatory Sandboxes to Smart Regulation", available online https://ssrn.com/abstract=3018534.
⁴ Zetzsche, Buckley, Arner, "The Distributed liability of Distributed Ledgers: Legal Risks of Blockchain", available online https://ssrn.com/abstract=3018214.

Media enquiry
Ms Rhea Leung, Communications and Public Affairs Office, The University of Hong Kong (Tel: +852 2857 8555; Email: rhea.leung@hku.hk; Website: www.hku.hk )
Ms Laura Bianchi, Communications Department, University of Luxembourg (Tel +352 46 66 44 9551;
M +352 621 547 950; Email: laura.bianchi@uni.lu; Website: www.uni.lu )
Ms Clare Morgan, Media Office, UNSW SYDNEY (Tel +61 (2) 9385 8920; Email: clare.morgan@unsw.edu.au; Website: law.unsw.edu.au )
For the online press release, click here.

Tuesday, August 22, 2017

Des Voeux Chambers Oxford-HKU Visiting Fellowship Public Lecture (7 Sept 2017)

Des Voeux Chambers Oxford-HKU Visiting Fellowship
Public Lecture

Chaired by The Honourable Mr Justice Jonathan Harris,
Judge of the Court of First Instance of the High Court

Date: 7 September 2017 (Thursday)
Time: 18:30 – 20:30 (Drinks reception will be held after the lecture)
Venue: Academic Conference Room, 11/F Cheng Yu Tung Tower, 
Centennial Campus, The University of Hong Kong

Humans as a Service? The Promise and Perils of Work in the Gig Economy 
Dr Jeremias Prassl
Uber, Didi, Deliveroo, Amazon’s MTurk, UpWork, TaskRabbit &co: On-demand work in the gig economy has had a profound impact on traditional conceptions of employment relationships. The completion of ‘tasks’, ‘gigs’ or ‘rides’ in the (digital) crowd fundamentally challenges our understanding of work in modern labour markets: gone are the stable employment relationships between firms and workers, replaced by a world in which everybody can be ‘their own boss’, enjoy the rewards – and face the risks – of independent businesses. Litigation between workers, customers, and platforms is on the rise all over the world, with many fundamental questions raised by gig economy work still lacking authoritative answers. 
     Dr Prassl’s talk will explore some of the key questions raised in his new book, Humans as a Service (Oxford University Press, forthcoming 2017): Is this the future of work? What are the benefits and challenges of working in the gig economy? And is platform work really fundamentally different from existing work arrangements, as many providers claim? Most importantly, how should the law respond and regulate on-demand economy work?
     Dr Jeremias Prassl is an Associate Professor in the Faculty of Law at the University of Oxford, a Fellow of Magdalen College, and Deputy Director of the Faculty’s Institute of European and Comparative Law. He read law at Oxford and Paris II (MA, DPhil) as well as Harvard Law School (LL.M.), and has held visiting positions at institutions including Columbia Law School, the Max Planck Institute Hamburg, UCL, WU Vienna, and Yale Law School. His principal research interests are in the fields of Employment Law, Corporate Law, and European Union Law (with a particular focus on Civil Aviation). 

Justifying Damages: Corrective Justice, Civil Recourse, or Something Else
Dr Sandy Steel
It has usually been thought that the breach of a primary tortious or contractual duty causing actionable harm gives rise immediately to a secondary duty to pay damages. Recently, this view has come under challenge: it has been argued that breach of such a primary duty gives rise only to a legal liability to pay damages. The liability view, as we can call it, is thought to pose a challenge to corrective justice theories of damages which claim that the justification of damages (sometimes) rests upon a secondary moral duty. In this lecture, Dr Steel offers some new arguments for the duty view, but suggests that, even if the legal liability view turns out to be correct, the moral duty of repair may still be crucial to justifying the existence of the liability. In doing so, Dr Steel suggests that the morality of self-defence helps to illuminate aspects of the law of damages.
     Dr Sandy Steel is an Associate Professor in the Faculty of Law at the University of Oxford, and also a Fellow of Wadham College. He read law (BA, PhD) at Corpus Christi College, Cambridge. From 2010-2014 he was a Lecturer in Law at King’s College London. He is interested in the English, French, and German law of obligations and in philosophical questions about that area of law. He has written mainly about torts. He also maintains an interest in general jurisprudence. 
     Click here to register online. Should you have any enquiries, please feel free to contact Kerry Ng by email at ngkerry@hku.hk.

Sunday, August 20, 2017

HKU Law Welcomes Two New Assistant Professors Specialising in IP, Innovation & Jurisprudence

We warmly welcome Dr Ryan Whalen, who joins us from Dalhousie University, and Mr Alex Green, who joins us from University College London, to the HKU Faculty of Law.
     Ryan Whalen’s research takes a data-driven approach to understanding the law and legal systems, with a particular focus on intellectual property law and innovation policy. This approach unites traditional doctrinal analyses with empirical techniques drawn from diverse fields including machine learning, natural language processing, network analysis, and data science.
     His work has appeared in a wide variety of journals including the Northwestern University Law Review, the Yale Law Journal Forum, the Michigan State Law Review, and the Journal of the Patent and Trademark Office Society
     Ryan holds a BA(hons) from Saint Mary’s University (Canada), an MA from National Chengchi University (Taiwan), a JD from the Northwestern University Pritzker School of Law, and a PhD from Northwestern University. While at Northwestern, Ryan served as the editor-in-chief of the Northwestern University Law Review
     Ryan joined the Department of Law in July 2017 and will be teaching classes on Intellectual Property and Information Technology, Patent Law, and Administrative Law.
     Alex Green joined the Department of Law in August 2017 as an Assistant Professor. His current research, which has been funded by the Modern Law Review, concerns the moral nature of legal statehood and its role in determining the content of public international law. More broadly, he is interested in legal and political theory, moral philosophy, private law, public international law and human rights. Alex will be teaching LLB and JD Tort Law and is Deputy-Director of the Outgoing Exchange Programme.

Friday, August 18, 2017

HKU Law Faculty Members Comment on Hong Kong's High Speed Railway Joint Checkpoint Issue

Ming Pao
1 Aug 2017
The HKSAR Government announced on Tuesday (25 July 2017) the plan for the “co-location” of customs, immigration and quarantine clearance (“CIQ”) arrangements at the West Kowloon station of the Express Rail Link to Shenzhen and Guangzhou. It has aroused heated debates in the community, including many criticisms and objections from the political and legal circles. I believe that we should not over-politicize the relevant issues, but should consider and discuss the matters in a manner that is impartial, rational and practical, so that the public can comprehensively and objectively understand the nature of the co-location plan in the West Kowloon Station.
     It must be pointed out that convenience for passengers is the sole objective of the co-location plan, which is to enable passengers to go through the CIQ clearance procedures with less time and more expedience. In other words, after passing the checkpoints in the West Kowloon Station, passengers from Hong Kong can go to all destinations in the Mainland without the need to go through any clearance procedure in the mainland. Conversely, passengers from the Mainland can undergo CIQ procedures only after they arrive in Hong Kong, without any clearance procedure in any Mainland city. Thus, the co-location plan is not designed for the purpose of expanding the jurisdiction of the Mainland authorities, or to extend the reach of Mainland laws in Hong Kong... Click here to read the full article in Chinese.  

Section 39 of the Public Order Ordinance gives Mainland law enforcement officers a limited degree of powers with necessary force to arrest and detain the Mainland's wanted persons for repartition inside trains and within the “immigration area on the Mainland side”. In order to tackle the so-called security loopholes, there is no need to fully implement Mainland laws or to remove the jurisdiction of Hong Kong... Click here to read the full post in Chinese on Eric Cheung's Facebook page.
For other articles and coverage, see Ming Pao (Johannes Chan), The Standard, Hong Kong Free Press, RTHKSouth China Morning Post, Reuters, and New York Times.  Translations by Isabella Liu.

Thursday, August 17, 2017

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

Vol. 7 No. 4: 28 July 2017
Table of Contents
1. Credit Ratings: The Moody's Case
Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law

2. China's Copyright Public Domain: A Comparison with Australia
Yahong Li, The University of Hong Kong - Faculty of Law
Graham Greenleaf, University of New South Wales, Faculty of Law

3. The Transparent Self Under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System
Yongxi Chen, The University of Hong Kong - Faculty of Law
Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

4. Institutional Purposes of Chinese Courts: Examining Judicial Guiding Cases in China Through a New Analytic Framework
JIAJUN LUO, Faculty of Law, the University of Hong Kong

5. Statement of Public Interest Principles for Copyright Protection under the Regional Comprehensive Economic Partnership (RCEP)
Haochen Sun, The University of Hong Kong - Faculty of Law

Herbert Loja on the Legal Status of the Airspace over an Indeterminate Territory: The Case of the Spratly Islands (J Territorial & Maritime Studies)

"Legal Status of the Airspace Over an Indeterminate Territory: The Case of the Spratly Islands" 
Herbert Aclan Loja (PhD Candidate)
Summer/Fall 2017, Volume 4, Number 2, pp 7-31
Abstract: This paper proposes an alternative approach in addressing the legal status of the Spratly Islands and its superjacent airspace. The paper adopts the conceptual framework of territorial sovereignty indeterminacy first articulated in the case of Eritrea v. Yemen (1998) in determining the legal status of the Spratly Islands. Relevant provisions of the 1951 San Francisco Peace Treaty and pertinent United States of America (U.S.) archival records will be examined. The proposition that the Spratly Islands may have the status of an indeterminate territory possessed of an indeterminate territorial airspace finds strong support from the terms of Article 2(f) of the San Francisco Peace Treaty and from the behavior of the states parties particularly of the U.S. before, during, and after the conclusion of the treaty. The paper invites a reassessment of the foundation of the claimant states' territorial claims to the Spratly Islands based on ancient or historic title and res nullius. It advocates for a less adversarial way of pressing for the claims. This is the first instance where the concept of indeterminate territory is applied in examining the legal status of the Spratly Islands and its airspace.

Wednesday, August 16, 2017

Emily Lee on Financial Inclusion, FinTech, RegTech & AML (J Business Law)

2017, Issue 6, published, pp 473-498
Abstract: This article evaluates the claim that FinTech—a portmanteau of finance and technology, including blockchain and automated suspicious transaction monitoring technology systems—has the ability to revolutionise financial inclusion, and examines whether regulatory technology (RegTech) can be used by regulators for tracking and monitoring AML/CFT compliance activities.
     Introduction: Financial inclusion denotes banks’ provision of basic financial services at affordable costs to those that need and qualify for them. Financial inclusion has strong social and economic implications. Access to basic financial services has been recognised as a basic civil right by the European Accessibility Act. The opposite is financial exclusion, which is when banks deny financial services to customers that they consider as posing high risks for money laundering and terrorist financing, giving rise to the term “de-risking”. 
     A litany of financial exclusion reports impelled the Hong Kong Money Authority (HKMA), the territory’s banking regulator, on 8 September 2016, to issue a circular to banks warning against the practice of de-risking, excluding customers from the financial system as the territory’s banks attempt to meet the anti-money laundering/countering the financing of terrorism (AML/CFT) requirements. Financial exclusion is driven by increasingly stringent documentary requirements and/or banks’ fear of regulatory reprisals if customers cannot prove the legality of their income or source of funds to their banks’ satisfaction. In over-compensating, banks have refused to approve account opening applications from some customer groups, with small and medium-sized enterprises (SMEs) and start-up companies (start-ups) being most affected... 
     This article addresses the following key issues: (1) the importance of financial inclusion since it has strong social and economic implications; (2) the claim that FinTech enables financial inclusion; (3) the problem of financial exclusion, which is linked to AML/CFT requirements; and consequently considers (4) whether the AML/CFT requirements are suitable to be put into a regulatory sandbox, a new regulatory approach whereby innovative FinTech products or services will be provided with regulatory flexibility for them to be introduced and tested in the market, and, if not, whether there is an alternative approach to grant regulatory flexibility so as to make financial services more accessible—the essence of financial inclusion...  Download the full paper here

Tuesday, August 15, 2017

FinTech and RegTech in a Nutshell, and the Future in a Sandbox (CFA Institute)

"FinTech and RegTech in a Nutshell, and the Future in a Sandbox"
Douglas W. Arner, Jànos Barberis, and Ross P. Buckley
July 2017, Volume 3, Issue 4, pp 1-20
Abstract: The 2008 global financial crisis represented a pivotal moment that separated prior phases of the development of financial technology (FinTech) and regulatory technology (RegTech) from the current paradigm. Today, FinTech has entered a phase of rapid development marked by the proliferation of startups and other new entrants, such as IT and ecommerce firms that have fragmented the financial services market. This new era presents fresh challenges for regulators and highlights why the evolution of FinTech necessitates a parallel development of RegTech. In particular, regulators must develop a robust new framework that promotes innovation and market confidence, aided by the use of regulatory "sandboxes." Certain RegTech developments today are highlighting the path toward another paradigm shift, which will be marked by a reconceptualization of the nature of financial regulation.  Click here for the full text.

Monday, August 14, 2017

Felix Chan on Enforcing Inconsistent Foreign Judgments (J Int'l Maritime L)

"Inconsistent Foreign Judgments on Exclusivity of Jurisdiction: Comity and Judicial Deference"
Felix Chan
The Journal of International Maritime Law 
2017, published, Vol.32, Issue 2, pp 91-95
Abstract: A domestic common law court is faced with an application to enforce a judgment issued by foreign court X. However, the judgment issued by court X is apparently inconsistent with another judgment previously rendered by foreign court Y. In addition, the action of court X in issuing the judgment may involve a breach of comity towards court Y. What should the domestic enforcing court do? What factors should the enforcing court consider when deciding whether the enforcement of the judgment rendered by court X is contrary to public policy on grounds of comity? In CompaniaSud Americana De Vapores SA v Hin-Pro International Logistics Ltd [2016] HKCFA 79, Lord Phillips of Worth Matravers sitting in the Hong Kong Court of Final Appeal articulated important principles and guidelines in these areas of private international law and the doctrine of comity. He identified the key factors the enforcing court should consider when evaluating whether the enforcement of a judgment rendered by foreign court X is contrary to public policy on grounds of comity, and whether the judgment of court X is in conflict with another judgment previously issued by foreign court Y on the same issue. Several aspects of Lord Phillips’ reasoning warrant further discussion and elucidation. 

Saturday, August 12, 2017

HKU Law's New Executive Director of the LLM Compliance & Regulation Programme

Syren Johnstone has been appointed Principal Lecturer and Executive Director of the Faculty of Law's LLM Compliance & Regulation Programme. 
     He is a Member of the Fintech Advisory Group of the Securities and Futures Commission (SFC), and a Consultant and Examiner to the Hong Kong Securities and Investment Institute (HKSI) for the Licensing Examinations for securities and futures intermediaries, the industry benchmark examination recognized by the SFC. Formerly a solicitor with Linklaters (London, Tokyo, Hong Kong), he moved into investment banking where he undertook senior management and responsible officer roles where he was regulated by the SFC and The Stock Exchange of Hong Kong Limited. 
     In 2016 he co-authored Financial Markets in Hong Kong: Law and Practice (OUP). His academic works have been referenced in Hong Kong’s Legislative Council and the Court of Appeal. Syren’s areas of expertise encompasses regulation of the securities industry, financial services law, listed companies, compliance processes, Fintech, corporate finance, mergers and acquisitions, joint ventures. 
     He holds two masters degrees, in science and law, from Oxford and London universities respectively.

Say Goo's Economic Efficiency Approach to Reforming Corporate Governance (Asian J L & Soc)

Say Goo
Asian Journal of Law and Society
July 2017, published online, pp 1-18
Abstract: This paper points out the problems of the current law on directors’ duties that forces directors to ignore stakeholder interests, with the unintended consequences of misallocation of resources and the weaknesses of a traditional legal approach to law reform, and uses multiple stakeholder boards as an example to demonstrate how an economic efficiency approach to law reform, adopting economic principles, could avoid some of the unintended consequences of a legal approach to law reform and help design better rules that promote allocative efficiency for the benefit of society as a whole. It argues that international organizations should take the lead in promoting the use of stakeholder directors in the board of directors of multinational corporations that have a history of corporate abuses for corporate decisions that have an impact on all stakeholders.

Thursday, August 10, 2017

Kai Yeung Wong Comments on the HKU Injunction Case (Civil Justice Quarterly)

"A missed opportunity to align the law of interlocutory injunctions with freedom of expression: University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd."
Kai Yeung Wong, SJD candidate 
Civil Justice Quarterly
2017, Vol. 36, Issue 3, pp 302-315
Abstract: Evaluates the Hong Kong Court of First Instance judgment in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd on whether an interlocutory injunction restraining the press from publishing the leaked transcripts of private meetings of the university's Council on the appointment of its new Pro-Vice Chancellor should be lifted to protect the right to freedom of expression as the information was in the public interest.  See also Anne Cheung's commentary on the same case.

Belinda Law (JD 2016) Examines if Taxpayer Privacy is being Compromised in Hong Kong (Bulletin for International Taxation)

Belinda Law, JD 2016
June 2017, Volume 71, No 7
Summary: This article examines the protection of privacy for Hong Kong taxpayers and the extent to which taxpayer privacy is being compromised as financial institutions are forced to comply with the US Foreign Account Tax Compliance Act and, more recently, the Standard for Automatic Exchange of Financial Account Information in Tax Matters.

Friday, August 4, 2017

New Book on Civil Unrest and Governance in Hong Kong (Michael Ng and John Wong)

Michael Ng and John Wong (eds)
2017, Routledge, 220 pp
Description: This book examines important social movements in Hong Kong from the perspectives of historical and cultural studies. Conventionally regarded as one of the most politically stable cities in Asia, Hong Kong has yet witnessed many demonstrations and struggles against the colonial and post-colonial governments during the past one hundred years. Many of these movements were brought about in the name of justice and unfolded against the context of global unrest. Focusing on the local developments yet mindful of the international backdrop, this volume explores the imaginaries of law and order that these movements engendered, revealing a complex interplay among evolving notions of justice, governance, law and order and cultural creations throughout the under-explored history of instability in Hong Kong. Underscoring the apparently contrasting discourses on the relationship among the rule of law, law and order and social movements in Hong Kong, the contributors emphasise the need to re-examine the conventional juxtaposition of the law and civil unrest. Readers who have an interest in Asian studies, socio-political studies, legal studies, cultural studies and history would welcome this volume of unique interdisciplinarity.  Faculty chapter contributions by Michael Ng, Albert Chen, Benny Tai and Marco Wan.

Michael Ng on Rule of Law and Hong Kong's Student Umbrella Movement of 1919 (new book chapter)

"Rule of Law in Hong Kong History Demythologised: Student Umbrella Movement of 1919"
Michael Ng
in Michael Ng & John Wong (eds), Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives (Routledge, 2017), pp 11 - 25
Introduction: In the 2005 Common Law Lecture, a prestigious annual seminar in which distinguished jurists address senior lawyers and law academics in Hong Kong, Sir Anthony Mason, former Chief Justice of the High Court of Australia and then Non-Permanent Judge of the Hong Kong Court of Final Appeal, spoke about the role of common law in Hong Kong:
     The common law also stands for a set of concepts, interests and values which it has protected during the course of its long history. They include the rule of law, the independence of the judiciary, access to the courts, the separation of the powers of government, liberty of the individual, freedom of expression, freedom of association … These values have both generated and informed legal principles including the rules of statutory interpretation. The common law supports the rule of law. Under the rule of law, the law is supreme, so that everyone, including those who exercise power, must conform to the law, a concept memorably captured in the celebrated aphorism ‘a government of laws, and not of men’… The common law stands both as a symbol and as link between Hong Kong’s past, its present and its future.
     English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualize it as a gift to the colonized, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative, which Sir Anthony reproduces above, is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule in Hong Kong, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbor across the border, mainland China. This chapter challenges this widely accepted narrative, thereby severing Sir Anthony’s link between common law’s legal past and present in Hong Kong. It argues that the traditional narrative simply does not stand up to scrutiny of the archival research. On the contrary, that scrutiny casts serious doubt on the weight afforded such liberal notions as the separation of powers, independence of the judiciary, and assurance of individual freedom of expression and association in the common law legal system practiced in Hong Kong in the pre-Second World War twentieth century, particularly in trial hearings in the Magistrates’ Courts, the courts that heard the majority of criminal cases in colonial Hong Kong.
     Through discussion of a widely reported court case concerning students’ anti-Japan movement in 1919, the chapter further argues that the common law system practiced in early twentieth-century played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process.
     Only a very limited number of scholarly works have addressed the prevalence of anti-Chinese legislation in nineteenth-and early twentieth-century Hong Kong, and no work to date has questioned the operation of the highly famed rule of law in the trial process of the latter period. This chapter thus constitutes a first attempt to demythologize the well-rehearsed history of common law in Hong Kong told by Sir Anthony Mason and like-minded historians through a close reading of trial hearing record. Owing to space limitations, only the aforementioned 1919 trial case, which was widely reported in both Hong Kong and overseas newspaper of the day, is used to make the case for the foregoing arguments. However, it should be emphasized that it is not the sole such case in the legal history of early twentieth-century Hong Kong (or at lease up to the outbreak of the Second World War as far as my current research is concerned). Many similar judicial cases have been recorded in my ongoing research project, the output of which will be published in due course.

Albert Chen on Social Movements and the Law: The Case of Hong Kong (new book chapter)

"Social Movements and the Law: The Case of Hong Kong"
Introduction: The relationship between social movements and the law in the Western world has been well studied. With regard to social movements in America, it has been pointed out that ‘legal norms, discourses, and practices in each case were an important constitutive element of evolving movement understandings, aspirations and strategic action. In Hong Kong, particularly since the handover in 1997, social movements have flourished, and the law has become an increasingly social movements and the law in post-colonial Hong Kong? Are theories developed in the West useful in understanding social movements and the law in Hong Kong? It is the purpose of this chapter to explore these questions.
     Our inquiry will proceed in the following stages. The first section of the chapter introduces theories developed in the Western world on social movements and their relationship with the law in order to provide a general theoretical foundation for the subsequent parts. The second section reviews the development of social movements in Hong Kong since the colonial era. The third section considers the development of Hong Kong’s legal system, and discuss several dimensions of law and social movements in post-colonial Hong Kong. Finally, the fourth section provides some concluding reflections.

Benny Tai on Civil Disobedience and the Rule of Law (new book chapter)

"Civil Disobedience and the Rule of Law"
Introduction: What is the relationship between civil disobedience and the rule of law? Is civil disobedience an inroad into the rule of law? Is it a legitimate consideration for the court in determining whether an offender is guilty and what the penalty should be? Does a citizen have a right to civil disobedience? Is civil disobedience momentous to advancement of the rule of law? These questions were hotly debated during the Occupy Central movement in Hong Kong. During a 79-day period between September and December 2014, thousands of Hong Kong citizens occupied the main streets of several busy districts to demonstrate against the territory’s undemocratic election system. 
     Peaceful protesters in Hong Kong advocate the view that the Occupy action, although illegal, was based on the spirit of civil disobedience. The aim of the civil disobedience movement was to bring constitutional and political change to the governance system of Hong Kong, making it more just. The protesters assert that their action is consistent with the rule of law because the ultimate goal of the law under the rule of law should be the achievement of justice. Albeit paradoxical, the purpose of breaking the law is to make the law better. 
     In the opening ceremony of the 2015 legal year, prominent figures in the Hong Kong legal community tried to answer the above questions, and presented differing views on the ‘proper’ relationship between civil disobedience and the rule of law. 
     Hong Kong Secretary for Justice Rimsky Yuen, criticised the ‘unlawful’ Occupy movement as a blatant challenge to the rule of law. To him, the rule of law is all about obedience to the law or acting in accordance with it. Yuen believes that resorting to unlawful means for the purpose of pursuing democratic change can never be justified. Doing so can only erode the rule of law. 
     Paul Shieh, then Chairman of the Hong Kong Bar Association, in contrast, ridiculed the government’s overemphasis on the ‘obeying the law’ aspect of the rule of law, dubbing it a hallmark of a regime that is keen on using the law as a tool to constrain the governed rather than as a means of constraining the way it governs. Shieh agreed there are historical examples of civil disobedience bringing about political or social change. However, he pointed out, there are limits to civil disobedience action: those engaged in it must not cause excessive damage or inconvenience. Shieh then expressed the belief that the conduct of some protesters during the ‘occupation’ may have overstepped these legitimate limits. 
     Geoffrey Ma, Chief Justice of the Hong Kong Court of Final Appeal, averred that most people had demonstrated respect for the rule of law during the protests. Ma’s understanding of the rule of law is broader than Yuen’s, and more akin to Shieh’s. Equality before the law, fidelity to the law and its spirit, and judicial independence are fundamentals of the rule of law in his eyes. As a judge, it is natural for Ma to emphasise this particular aspect of the rule of law. He repeatedly stressed that the administration of justice by the courts must not be affected by extraneous factors, including political factors. 
     An incident that took place during the Occupy movement serves to illustrate the three men’s sharply conflicting views on the relationship between the rule of law and civil disobedience. A taxi driver association applied to the court for injunction orders prohibiting any person from continuing to obstruct sections of specified roads in the occupied areas. It asserted that the business of its members had been seriously affected by the obstruction caused by the protesters. Injunction orders were granted on the grounds that the obstruction constituted a form of public nuisance. Taxi drivers were entitled to have the specified sections of the roads cleared, and bailiffs were sent to assist the plaintiff in doing so. However, some protesters refused to leave. The police who were there to provide support to the bailiffs arrested them. The charge was criminal contempt of court for failing to comply with the orders of the court.
     Yuen would consider the protesters to be acting unlawfully and that their actions could not be justified in any circumstances. Shieh might recognise their actions as civil disobedience. However, he could not accept any non-compliance with a court order properly issued, and would see the protesters as having crossed the legitimate limits of such disobedience. Finally, Ma would view the injunction orders as having been issued and implemented in accordance with his list of requirements for the rule of law. Hence, he would expect the court orders to be accepted and respected by all members of the community.
     Yuen, Shieh and Ma are all legal professionals, and their concerns are naturally concentrated on the administration of justice in the courts. The peaceful protesters, in contrast, perceive the law as going beyond the letter of legal rules. Although the requirements for the rule of law include an orientation towards respecting the law by obeying it on the part of the people, that orientation can hardly be the main component of the rule of law. The rule of law cannot demand that citizens obey the law unconditionally and unreflectively.
    To the peaceful protesters, the rule of law is more about limiting the powers of the government and ensuring adequate protection for the fundamental rights of the people. Justice means more than legal justice that can only be reached in court. An independent judiciary is surely one of the main pillars of the rule of law, as it can impose the necessary limitations on all public powers. However, independent courts under the rule of law still encounter constraints in achieving justice. Judges cannot go beyond the legal issues tabled before them to address the systemic injustices that caused so many people to leave the safety of their homes to fight for their fundamental rights in the streets. Under special circumstances and conditions, people may be justified in resorting to unlawful means to achieve justice, and even to act against a court order issued by an independent court, if justice cannot be done through the courts. 
     The contrasting views of the peaceful protesters and those of Yuen, Shieh and Ma reflect the complexity of the relationship between civil disobedience and the rule of law. Their differences may be caused by their limited understanding of civil disobedience or divergent understandings of the rule of law. I am not asserting that civil disobedience is not unlawful. The real issue is whether that unlawfulness can be justified and, if so, justified by what. 
     The aim of this chapter is to establish a thesis: civil disobedience is justified by the rule of law. To establish this thesis, I have to illustrate that the goal that civil disobedience claims to achieve is also the goal that the rule of law pursues and to demonstrate that civil disobedience is an effective way of securing the attainment of this common goal, at least in the long run, by creating a climate within which other means can be used to achieve that goal. 
     Civil disobedience is first defined in Part I by showing that its goal is to do justice. Part II advances a level approach to the rule of law, which integrates different understandings of the concept and necessitates a more substantive goal for the rule of law, i.e. achieving justice. In Part III, I argue that civil disobedience plays a pivotal role in the development of the rule of law in attaining its substantive goal of achieving justice. Finally, in Part IV, I conclude the chapter by proposing a developmental model of the rule of law that provides justification for civil disobedience within the framework of the rule of law.

Marco Wan on the Artwork of Hong Kong's Occupy Central Movement (new book chapter)

Marco Wan
in Michael Ng and John wong (eds), Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives (Routledge, June 2017), pp. 179-195
Introduction: Hong Kong’s Occupy Central movement, or the Umbrella Revolution as it became known in the international media, was an event that changed the city’s cultural fabric. From its origins as a peaceful protest against the package of electoral reforms imposed on the city by Beijing, as well as against the city’s slow pace of democratization more generally, it turned into an event that divided Hong Kong society in an unprecedented way, exposing divisions between people of different generations, political persuasions and aspirations. As the title of this volume indicates, any form of civil unrest has implications for the maintenance of law and order, and much of the local discussion of Occupy Central has focused on its legal dimension. For instance, there have been lively debates about whether it constituted a form of civil disobedience, as its organizers claimed, or whether it was merely a form of reckless public disorder for which they should have been punished. There have also been concerns about the abuse of police powers and whether the authorities used an inordinate amount of force to contain the protesters.
     Another strand of the discussion around Occupy Central has focused on its artwork. As one online art magazine noted during the movement, ‘colors abound [on] the streets […] as protesters create public art and turn occupied areas into surreal exhibition spaces. Arguably the most iconic artwork was the ten-foot-tall wooden statue of the Umbrella Man by the artist Milk. This towering figure with an outstretched hand holding the symbolic umbrella of protest became an artistic focal point for the movement. However, the street art produced during Occupy Central extends far beyond the Umbrella Man, encompassing a plethora of hand-drawn pictures, printed images and graffiti. There was keen awareness that once the government cleared the streets, much of this artwork would be lost. The Umbrella Movement Art Preservation project, or UMAP, was established as a way of archiving and preserving these images, although at the time of writing its digital archive is still under construction.
     This chapter moves beyond discussions of Occupy Central’s legality to explore the cultural significance of some of the images that this momentous event generated. Civil unrest cannot be understood in isolation from the societal forces that produced it, and the artwork of Occupy Central provides one medium for understanding such forces. This chapter therefore focuses on the movement’s aesthetic, rather than political or legal, dimension. It argues that its street art provides a point of entry into questions of identity in Hong Kong. In other words, the images can be interpreted as reflections of the ways in which Occupy Central perceived itself, as well as the ways in which some Hong Kongers imagined their own sense of self. These images suggest that Occupy Central was an event that did not have a unitary or unambiguous notion of itself, and that this multifaceted self-conception may be tied to the complex sense of self amongst many Hong Kongers in the early part of the twenty first century. 

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