Thursday, October 29, 2020

New Issue of Hong Kong Law Journal (Vol. 50 - Celebrating 50 Years of Legal Scholarship, Part 2 of 2020)

Vol. 50, Part 2 of 2020

Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell


Under art 29(4) of Hong Kong's National Security Law, a person or company who "receives instructions" from a foreign country to commit the act of "imposing sanctions" against the Hong Kong Special Administrative Region (HKSAR) or the People's Republic of China (PRC) commits a criminal offence. If, as required by the law of a foreign country X, a financial institution in Hong Kong, performs an act in the course of its business for the purpose of implementing a sanction imposed by country X against the HKSAR or PRC, does that financial institution violate art 29(4)? In this article, we argue the financial institution does not. The scope of art 29(4) must be interpreted contextually. It covers the performance of an act of imposing a sanction or blockade or of engaging in other hostile activities. Such an act is only capable of being performed by a state, an individual acting on behalf of a state or an international organisation. A financial institution, giving effect to sanctions against the HKSAR or the PRC, cannot be regarded as 'receiving instructions' to 'impose sanctions', which have already been imposed by a foreign state. It cannot be guilty of a criminal offence under art 29(4) merely by participating in the implementation of the sanctions concerned to comply with a foreign law applicable to it.

Focus: 2019 Hong Kong Protests: Political Origins and Legal Ramifications
Po Jen Yap ... 365
For most of 2019, Hong Kong was rocked by civil unrest. The protests originally arose in opposition to the Hong Kong Government's attempt to pass an extradition law that would allow for Hong Kong residents to be extradited to other regions and countries, including Mainland China, to face trial for alleged offences committed here. Even though the bill was eventually withdrawn, the unrest continued as protestors pressed on for other demands, including universal suffrage. In response to escalating street violence, the Hong Kong Government invoked the Emergency Regulations Ordinance (Cap 241) (ERO) to enact a regulation that bans facial covering in public. And the roiling constitutional crisis culminated with Beijing's imposition of a bespoke National Security Law on Hong Kong in June 2020.

The Unprosecuted Taiwan Homicide, the Unaccepted Extradition Law Amendment Bill and the Underestimated Common Law
PY Lo ... 373
The 2019 Hong Kong Protests arose out of the popular opposition to a Bill that the Hong Kong Special Administrative Region (HKSAR) Government introduced to amend, generally, fugitive offenders and mutual legal assistance legislation. The Government claimed that the Bill was necessary to address "loopholes" identified in the handling of a case of homicide of a Hong Kong-resident woman in Taiwan by her Hong Kong-resident boyfriend who, having committed the homicide, returned to Hong Kong and was prosecuted only for money laundering. This article addresses two sets of legal issues concerning the Bill. First, it asserts that contrary to the Government's contention, the HKSAR courts do have jurisdiction to try the suspect in the Taiwan homicide case for the common law offence of homicide here. Next, the provisions of the Bill are examined to explain not only its principal flaws but also the implications from those flaws that fuelled the opposition against the Bill. In conclusion, some suggestions are made on judicial cooperation between Hong Kong and the "One Country" in criminal matters based on Hong Kong's flexible and resilient common law legal and judicial systems.

Political Crowdfunding of Rights
Julius Yam ... 395
This article takes a first look at political crowdfunding in Hong Kong. Crowdfunding has not only changed the ways businesses raise capital but also have great implications for law and politics. This article explores how crowdfunding was used by protestors during the 2019 anti-extradition bill movement to facilitate political expressions and litigations related to the events at the time. It describes the political crowdfunding scene in Hong Kong, highlights the dependency of rights on financial conditions and the potential of this financing technology to enhance the realisation of the rights to freedom of expression and access to justice in Hong Kong. More generally, the article prompts reflection about the relationship between law, politics and money, especially in non-democratic regimes.

"Who but the Governor in Executive Council is the Judge?" — Historical Use of the Emergency Regulations Ordinance
Michael Ng, Shengyue Zhang and Max Wong ... 425
Drawing upon archival documents and previous scholarly works, this article investigates the invocation of Emergency Regulations Ordinance (Cap 241) (ERO) in colonial Hong Kong against the broader historical context connecting China, Britain and Hong Kong during the interwar and Cold War periods to make three main arguments. First, it argues that in comparison with similar statutes in other British colonies, the ERO was much easier for the Hong Kong Government to invoke to the extent that it was extremely difficult, if not impossible, for any challenge of its constitutionality to succeed. Second, China factors, be they factors related to China under Nationalist or Communist Party rule, were crucial in almost every occasion on which the ERO was used throughout Hong Kong's colonial history. Finally, partly because of the nearly unchecked freedom that the colonial government enjoyed, it used the ERO not only to deal with grave political instability or legitimacy crises but also to tackle the inconveniences of domestic governance, thereby effectively "ruling by decree". Accordingly, the number of times the ERO was invoked exceeds the figure we would expect if its use had arisen only on "occasion of emergency".

A "Guardian" Controversy over Hong Kong's Basic Law?
Ryan Mitchell ... 463
The High Court's November 2019 overturning of the mask ban turned in part on finding that the Emergency Regulations Ordinance (Cap 241) improperly arrogated "general legislative authority" to the Chief Executive. In doing so, it raised questions that might be usefully compared with those of Weimar Germany's so-called Guardian controversy involving the legal theorists Carl Schmitt, Hans Kelsen and Hermann Heller. That dispute concerned both the scope of emergency powers and the final locus of constitutional review authority. In the mask ban case, only the former issue has been directly raised. However, any future interpretation issued by the Standing Committee of the National People's Congress (NPCSC) would indeed risk broader implications for the principle of separation of powers. The NPCSC's taking action to empower a greater legislative role for the Chief Executive would likely be criticised by each of these three leading late Weimar legal scholars, though for very different reasons.

Article 18(4) of the Basic Law creates a dual emergency power: the internal emergency power of the Hong Kong Special Administrative Region (HKSAR) and the external emergency power of the Standing Committee of the National People's Congress. The external and internal emergencies represent two paradigms of emergency regime: the former is based on the state of exception, in which a state manages a crisis, largely independent of legal rules and without constitutional and legal accountability, and the latter is based on the concept of the rule of law, according to which the emergency power is subject to significant legal constraints. The internal and external emergencies in Hong Kong represent the opposite ends of the spectrum of emergency law between the liberal Hong Kong and the statist, authoritarian Chinese state. However, the minimum requirements of the International Covenant on Civil and Political Rights, as provided in the Basic Law, should be and can be observed in both internal and external emergencies. To maximise the protection of rights and freedoms while addressing security concerns, it is necessary for the HKSAR to internalise emergency measures.

Deference as Proper Judicial Attitude — with Special Reference to Anti-Mask Law Judgments 
Guobin Zhu and Xiaoshan Zhang ... 517
The anti-mask law case mainly deals with the constitutionality and legality of the Emergency Regulations Ordinance (Cap 241) (ERO) and the Prohibition on Face Covering Regulation (Cap 241K) (PFCR). The ERO allocates power, while the PFCR restricts rights. The Court of First Instance (CFI) struck down the ERO on the ground of separation of powers and the PFCR on the ground of disproportionality. The Court of Appeal (CA) set aside the CFI's declaration of unconstitutionality with respect to the ERO and parts of the PFCR. The difference between the CFI and CA judgments lies not only in the outcome but also in the degree of deference. This article provides a reflective commentary on the judgments by the CFI and the CA from the perspective of judicial deference. It starts with the proper role of the courts under the separation of powers in Hong Kong. Next, it introduces deference as a sensible judicial attitude and delineates the requirement of deference under Hong Kong's constitutional framework. Then, it applies deference in the analysis of the anti-mask law case and examines the degree of deference shown in the judgments of the CFI and CA. The main idea is that deference is required by the separation of powers doctrine and in the specific context of the case, whereas insufficient deference has led the CFI to a controversial and not amply justified conclusion, which had been later overturned by the CA.

The Necessity of Balancing: Hong Kong's Flawed Approach to Proportionality, and Why It Matters
Alec Stone Sweet...541
Virtually all of the world's most powerful high courts recognise the proportionality principle — as enforced through a distinctive sequence of subtests — to be an overarching criterion of constitutional legality. In Hysan Development Co Ltd v Town Planning Board, the Court of Final Appeal added a fourth and final "balancing phase" to what had been a truncated version of the proportionality framework. This article analyses Hysan and its effects from two perspectives. First, compared to the standard model of proportionality analysis, Hysan places deference to legislative and executive authority at its core, thereby transforming rights doctrine into a form of reasonableness review. Indeed, it creates an approach more akin to Wednesbury unreasonableness than proportionality. Second, the foreign case law invoked by the Court of Final Appeal does not actually support the Hysan framework. Unless corrected, judicial fidelity to Hysan will chronically reproduce three pathologies: analytical incompleteness; doctrinal instability; and judicial abdication.

Remedial Discretion and the Prohibition on Face Covering Regulation 
Po Jen Yap and Jiang Zixin ... 569
In this article, we make the following arguments in relation to the Court of First Instance (CFI) and Court of Appeal (CA) decisions on the constitutionality of the Emergency Regulations Ordinance (Cap 241) (ERO) and the Prohibition on Face Covering Regulation (Cap 241K) (PFCR). First, the CFI should have granted a Suspension Order vis-à-vis the ERO so as to allow the police to enforce s 3(1)(a) of the PFCR — a provision the CFI deemed proportionate — until the final resolution of the appeal. Second, the CA's reasons for upholding the constitutionality of the ERO are flawed as the CA has conflated public dangers with public emergencies, and the putative judicial safeguards identified are illusory in nature. Third, the CA in effect applied Remedial Interpretations (RI) to impugned legislation in four instances without expressly declaring the law unconstitutional: (1) RI was applied to the ERO such that the Chief Executive in Council is disempowered from amending or suspending its statutory duty to place all subsidiary legislation before the Legislative Council for vetting and repeal by resolution; (2) RI was applied to the ERO such that regulations made under the ERO cannot derogate from the Hong Kong Bill of Rights Ordinance (Cap 383) unless a public emergency is officially proclaimed, the derogation is strictly required by the exigencies of the situation and non-derogable rights are unaffected; (3) RI was applied to the Public Order Ordinance (Cap 245) such that minor non-compliance with conditions issued by the police would not per se turn a procession into an unauthorised assembly; and (4) RI was applied to s 3(1)(b) of the PFCR such that the facial covering prohibition would not apply to mere passers-by present at the scene of an unauthorised assembly.

Amnesty for Street Protesters 
In the summer of 2019, protesters took to the streets of Hong Kong. After thousands of arrests for protest-related offences, amnesty for street protesters was proposed but not adopted, primarily on the ground that amnesty would undermine the rule of law. Drawing on comparative experiences and theoretical analysis, this article sets out four value-based rationales for protest amnesty — rule of law, democratic responsiveness, virtue and political trust — and considers the relevance of each in the current context of Hong Kong. In doing so, this article focuses on the distinctive and overlooked context of street protest in the literature on amnesties.

Constitutional Controversies in the Aftermath of the Anti-Extradition Movement of 2019
The aftermath of the anti-extradition movement of 2019 saw three great constitutional controversies fuelled by conflicting interpretations of the Basic Law. Collectively, they may be regarded as constituting the greatest shock experienced by the constitutional framework of "One Country, Two Systems" since this political and legal experiment began in 1997. It is the purpose of this article to document and analyse these three constitutional controversies.

50th Anniversary Feature Article
Carole J Petersen ... 633
This article analyses the Law of the People's Republic of China on Safeguarding National Security in Hong Kong (NSL) from the perspective of foreign governments. The NSL empowers security personnel from Mainland China to operate openly in Hong Kong and provides a mechanism through which the Central Government can assert jurisdiction over particular cases. Many nations have responded by suspending their extradition agreements with Hong Kong and by applying new export controls, no longer trusting the "firewall" that previously separated the two legal systems. Foreign governments are also concerned by the broadly defined criminal offences, the extraterritorial reach of the NSL and the expansion in police powers. Although art 4 states that the International Covenant on Civil and Political Rights (ICCPR) will continue to apply, this general statement is undermined by specific clauses that conflict with ICCPR-protected rights. Given that the ultimate power of interpretation rests with the Standing Committee of the National People's Congress, one cannot assume that the Hong Kong judiciary will be able to cure these problems. Foreign governments are therefore justified in concluding that Hong Kong is no longer operating a truly separate legal system from Mainland China.

The power of the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law has been a matter of great controversy in Hong Kong. Given the asymmetrical power relationship between the sovereign and the Special Administrative Region, it is argued that the exercise of sovereign power has to be subject to self-restraint if the common law system is to be preserved. Accepting the sovereign power of the NPCSC to interpret the Basic Law, this article argues that there is no discernible principle of interpretation in the five interpretations made by the NPCSC in the past two decades. The article proposes, in an attempt to reconcile the sovereign power of interpretation and preserve the common law system, some guiding rules for the exercise of this power, so that it can be exercised in a rational and principled manner consistent with the constitutional design of One Country, Two Systems.

The Iron Curtain: Controlling Unreasonable Defamation Immunity Clauses
Neerav Srivastava ... 685
Defamation immunity clauses (DICls) are a new phenomenon. If a guest using Airbnb posts a defamatory review of the host, in theory, the host can sue both the guest and Airbnb. But the guest may have returned to another country and be out of reach. Airbnb, like other commercial platforms, contractually immunise themselves against liability by using DICls. This article argues that there needs to be statutory control of unreasonable DICls. Historically actors involved in defamation would not have been in a contractual relationship. If unchecked, DICls may pose an existentialist threat to defamation law as a protector of reputations.

Non-Invocation of UNCITRAL Model Law Article 16(3) — a Critical Approach
Li Chen and Qianqian Yu ... 719
Article 16(3) of the United Nations Commission on International Trade Model Law on International Commercial Arbitration provides that if a tribunal rules as a preliminary question that it has jurisdiction, a party may seek recourse to the supervisory court to review that ruling within 30 days. The provision, however, is silent on the consequences of failing to challenge a preliminary jurisdictional decision under art 16(3). Some have argued that the provision has a preclusive effect, such that a party failing to seek immediate recourse thereunder will be precluded from revisiting this issue after an award has been rendered; others take a more liberal view as to its effects. This article examines these different approaches towards the interpretation and application of art 16(3) and considers them against the text of art 16(3), its drafting history, doctrinal bases, and policy considerations. It argues against a preclusive view of art 16(3) and posits that a party's non-invocation of art 16(3) can only lead to preclusion based on the general doctrines of waiver and estoppel or other applicable doctrines that may exist within the relevant jurisdiction.

The Guangdong–Hong Kong–Macao Greater Bay Area: Cultural Heritage Laws as a Bridge between Past and Future
Rostam J Neuwirth and Zhijie Chen ... 743
Cultural heritage laws are often primarily understood as being aimed at protecting relics from the past against threats from the passage of time that are manifest in changing social and economic conditions, which may expose those relics to damage, decay or destruction. Recently, however, the focus has been shifting towards the constructive role that cultural heritage laws can play in future. This article aims to give a brief outline of the legal frameworks governing the protection of cultural heritage in Hong Kong, Macao and Guangdong Province of the People's Republic of China. Specifically, the article assesses the potential for cultural heritage protection in the context of the objectives for the development of the Guangdong–Hong Kong–Macao Greater Bay Area.

China Law
This article examines the lack of information transparency on the part of the Chinese government as revealed in the COVID-19 outbreak. Based on the evidence of the lack of information transparency in the initial stage of this public health emergency, the article reviews how the Chinese public health emergency information system, which had been established in response to the 2003 SARS crisis, was implemented. It further analyses the fundamental reasons for the lack of information transparency despite the reporting, disseminating and early warning mechanisms that existed in the country. It finds that powerless centres for disease control and prevention, prioritisation of the political concern of social stability and harmonisation over public health, extremely tight governance of public opinions and inadequacies of the public health emergency information system with respect to new and emerging infectious diseases are the four major factors that combined to result in the lack of information transparency in the COVID-19 outbreak in China. The article identifies big lessons to be learned to promote information transparency in public health emergencies.

Constructing Tainted Witness Immunity in Corruption Crime in China
Xinlin Peng and Heping Dang ... 809
Tainted witness immunity in corruption crime is not a right of any witness to claim independently. It can be seen as a compromise of the State and a restriction of the privilege against self-incrimination so that certain serious corruption crime cases can be prosecuted. Tainted witness immunity in corruption crime is a requirement of the United Nations Convention against Corruption. It is in line with China's policy of severely punishing corruption offences. It facilitates obtaining evidence in corruption cases and accelerates their proceedings. Tainted witness immunity system does not conflict with China's criminal law principles. It does not have a direct connection to judicial corruption. Currently, China is yet to have a tainted witness immunity system in place. This article puts forth a proposal describing it theoretically, focusing on the types, objectives, conditions, procedures, and safeguards of a tainted witness immunity system in corruption crime.

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