Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell
TABLE OF CONTENTS
Analysis
Proprietary Estoppel Remedies in Hong Kong
Jing Hui...789
In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 deviated from the foregoing attitude to remedial constructive trusts. It recognised “unconscionability” as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad discretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietary estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise from the adoption of such an approach in Hong Kong law.
Falsehoods, Foreign Interference and Free Speech in Singapore
Kenny Chng and Jeremy Chai...799
Lecture
The Essence of Advocacy
Kemal Bokhary...811
Basic Law Anniversary Focus
Focus: 25th Anniversary of the HKSAR
Albert HY Chen...825
The Changing Constitutional Order of the HKSAR: A Retrospective Reflection
Zhu Guobin...827
Identity Politics and Constitutional Change in Hong Kong: The National Security Law and 25 Years of the Basic Law
Jie Cheng...851
Two Years On: Reviewing the Implementation of the NationalSecurity Law in the HKSAR
Michael Jackson...875
This review surveys the case law dealing with the Hong Kong National Security Law (NSL) offences in the two years since the enactment of the NSL, with a view to identifying what we have learned about the four categories of NSL offences. The article is concerned primarily with Ch III of the NSL, headed “Offences and Penalties”, but also covers to a lesser extent Ch IV, dealing with “Jurisdiction, Applicable Law and Procedure”. Part 1 introduces the NSL offences regime. Part 2 will briefly summarise the enforcement of the NSL since its enactment. Part 3 will outline several key themes or rulings emerging from the case law relating to the integration of the NSL with existing HK criminal law and procedure. Part 4 will explore what we have learned about the NSL offences themselves and their elements, and how the courts have begun to shape these offences within HK’s existing common law legal system. Part 5 will offer some brief conclusions.
Reactivated and Re-energised: The Sedition Offences in “New Era” Hong Kong
Pui-yin Lo ...913
Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) in mid-2020, been vigorously enforced as an “offence endangering national security” within the meaning of the NSL by the National Security Department of the Hong Kong Police Force and the Department of Justice. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the NSL in order to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of sedition-like offences from other common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the NSL could be curtailed or circumscribed: (1) sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights Ordinance (Cap 383), and accordingly there is nothing to be revived for enforcement; (2) remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalising speech and expressive acts merely and plainly for their ascribed “intentions” and (3) several of the seven categories of “seditious intention” have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the NSL’s system of enforcement against persons alleged to have committed acts under those categories of “seditious intention”.
Taking Rights Seriously — the Judiciary at a Challenging Time
Johannes Chan...937
While the judiciary is generally regarded as the defender of the rule of law and fundamental rights, it is not uncommon that judges could also suppress democratic values. Courts around the world have legitimised undemocratic or even repressive law and practices. Authoritarian regimes tend to capture the judiciary, not only because the judiciary would provide the legitimacy for anti-democratic measures, but the nature of the institution could also masquerade such measures as a legitimate exercise of power that makes it more difficult to detect and respond to. This article examines the relationship between the Central Government and the judiciary of the Hong Kong Special Administrative Region (HKSAR). It focuses on the judicial responses when the Central Government decided to shift the emphasis from “Two Systems” to “One Country” under the constitutional design of the HKSAR and to exercise “full jurisdiction” over Hong Kong. By focusing on the reasoning and the context of the relevant cases, it argues that the responses of the judiciary amount to a weak form of “abusive judicial review”. The constitutional model of “One Country, Two Systems” implies mutual accommodation of the two systems, and convergence means reconciliation of the two systems rather than changing one system to conform with the other system. While there are incidents suggesting a strong form of “abusive judicial review”, it is argued that it is too early to draw this conclusion. The article also cautions that when the pendulum has swung from one extreme to the other, it is even more important for the judiciary to make full use of the tapestry of common law principles to strike a better balance between fundamental rights and protection of national security.
Simon NM Young ...965
If rights are interpreted purposively, what is the purpose of the right to vote in Hong Kong? It means more than casting a ballot or being a candidate in elections. The right to vote serves to enable permanent residents to participate meaningfully in the electoral process and public affairs more generally. Meaningful participation implies that voters are informed of the relevant issues. Hong Kong underwent major reforms in its electoral systems in 2021. In the eyes of the public, the reforms had the effect of rendering the right to vote less meaningful, if not meaningless. In the future, the central and regional governments need to restore people’s confidence in the elections and bring back vibrancy to the right to vote in Hong Kong.
Articles
Enforceability of Excessive Pricing Rules under Hong Kong Competition Law
Jae Woon Lee and Yiu Yeung Tong...977
The Executive Order System of the Basic Law of the Macao Special Administrative Region
Yumei Kang and Ziyu Liu...997
Window Dressing or Meaningful Constraint? Assessing the Role of the International Covenant on Civil and Political Rights and the United Nations Human Rights Committee in Hong Kong’s Legal System Carole J Petersen...1031
The Challenges of the Singapore Convention to the Chinese Mediation System
Xiong Hao...1057
China Law
Dancing in Chains: Reassessing China’s Foreign Investment Legislation (Part II)
Li Yang, Hui Pang and Charlie Xiao-chuan Weng...1083
A Right to an Explanation of Algorithmic Decision-Making in China
Huanmin Lin and Hong Wu...1163
An Empirical Study of Pain and Suffering Awards in Chinese Personal Injury Cases
Ding Chunyan and Zhi Pei...1193
Book Review
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