Thomas Yeon (PCLL 2020) and Trevor Wan (BSS(GL)&LLB 5)
Published: 1 April 2021
Abstract: This commentary analyses the decision of the Hong Kong Court of First Instance (the court) in Kwok Wing Hang v Chief Executive in Council and critically analyses and evaluates the court’s approach to the limitation of executive powers and the protection of fundamental rights with respect to its approach in citing foreign jurisprudence from the UK, Australia and under the European Convention on Human Rights. The authors argued that while the court’s treatment of constitutional and administrative cases from common law jurisdictions is generally coherent (albeit with room for improvement in dissecting technical details), the court’s approach to Strasbourg jurisprudence is incoherent and fails to appreciate analytical nuances both as a matter of law and fact. A two-step approach will be proposed for Hong Kong courts’ future consideration in adopting constitutional and/or administrative jurisprudence from foreign jurisdictions. Note that the Court of Final Appeal's decision in this case can be found here.