Professor Marco Wan Speaks on Marriage Equality and Trans Rights at HSBC and Morgan Stanley

Professor Marco Wan spoke at HSBC and Morgan Stanley to mark the International Day Against Homophobia, Transphobia, and Biphobia (IDAHOBIT) and Pride Month. At HSBC, Professor Wan analyzed the key court cases and changing landscape of marriage equality in Hong Kong. At Morgan Stanley, he discussed the major developments and future trajectories of trans rights in the city.

     Professor Wan also serves as a curator for the Hong Kong Lesbian and Gay Film Festival. His latest article, ‘Law, Film, and Trans Identity in Hong Kong’, was recently published in the International Journal of Constitutional Law (I.CON) this summer.

Emily Lee on Mutual Recognition and Assistance in Insolvency Proceedings across Mainland China and Hong Kong (Journal of Corporate Law Studies)

"The cooperation mechanism and legal harmonisation: analysing the past, present and future of mutual recognition and assistance in insolvency proceedings across Mainland China and Hong Kong, with insights from EU insolvency regulations"

Emily Lee

Journal of Corporate Law Studies

Published online: 26 May 2023

Abstract: This article examines the potential and challenges of the ‘Cooperation Mechanism’, a scheme introduced jointly by the Supreme People’s Court in China and the Government of the Hong Kong Special Administrative Region on 14 May 2021, for enhancing mutual recognition and assistance in insolvency proceedings. This article contends that the Cooperation Mechanism does not in itself constitute a formal mechanism for mutual recognition. To assess the impact of the Cooperation Mechanism, this article traces and analyses court decisions on recognition and assistance made before the implementation of the Cooperation Mechanism, and places them in contrast to those pursuant to or influenced by the Cooperation Mechanism. Additionally, it highlights a similar practice between Europe’s Brussels Convention of 1968 and two arrangements between Hong Kong and China prior to the Cooperation Mechanism, namely the 2006 Arrangement and the 2019 Arrangement, in carving out bankruptcy and insolvency proceedings, notwithstanding some technical differences.

Douglas Arner and team on Regulating Artificial Intelligence in Finance and other Regulated Industries (new book chapter)

"Regulating artificial intelligence in finance and other regulated industries"

Douglas W. Arner, Ross P. Buckley, Dirk A. Zetzsche, Brian W. Tang & Lucien J. van Romburg

in Artificial Intelligence in Finance

Edited by Nydia Remolina & Aurelio Gurrea-Martinez (Edward Elgar Publishing, 14 Apr 2023)

Chapter 12

Abstract: This chapter develops a regulatory framework for understanding and addressing the increasing role of AI in finance, and focuses on human responsibility, the ‘human-in-the-loop’, as central to tackling AI ‘black box’ issues ie the risk that AI results in processes and operations unknown to and uncontrolled by human beings, producing undesirable results for which only the AI is responsible. Part II highlights the risks created by the increased reliance on AI in finance. Part III summarises the regulatory challenges concerning financial services AI and the tools available to address them and highlights the necessity to address the ‘black box’ problem. Part IV presents our solution to the latter problem. Part V concludes suggesting that our framework offers the potential to address ‘black box’ issues in the context of AI in finance but also in any regulated industry.

Benjamin Chen et al on Detecting the Influence of the Chinese Guiding Cases (Artificial Intelligence and Law)

"Detecting the influence of the Chinese guiding cases: a text reuse approach"

Benjamin M. Chen, Zhiyu Li, David Cai & Elliott Ash

Artificial Intelligence and Law

Published: 06 May 2023

Abstract: Socialist courts are supposed to apply the law, not make it, and socialist legality denies judicial decisions any precedential status. In 2011, the Chinese Supreme People’s Court designated selected decisions as Guiding Cases to be referred to by all judges when adjudicating similar disputes. One decade on, the paucity of citations to Guiding Cases has been taken as demonstrating the incongruity of case-based adjudication and the socialist legal tradition. Citations are, however, an imperfect measure of influence. Reproduction of language uniquely traceable to Guiding Cases can also be evidence of their impact on judicial decision-making. We employ a local alignment tool to detect unattributed text reuse of Guiding Cases in local court decisions. Our findings suggest that Guiding Cases are more consequential than commonly assumed, thereby complicating prevailing narratives about the antagonism of socialist legality to case law.

Congratulations to Dr Anya Adair, the recipient of the Rosie Young 90 Medal for Outstanding Young Woman Scholar 2022!

In celebration of Professor Rosie Young’s 90th birthday on October 23, 2020, the Rosie Young 90 Medal for Outstanding Young Woman Scholar was established to honour her immense achievements and contributions to the University.  The Medal recognises talented young academics and encourage them to follow in her illustrious footsteps for many, many years to come.

Congratulations to Dr Anya Adair, the recipient of the Rosie Young 90 Medal for Outstanding Young Woman Scholar 2022.

Dr Anya Adair

Assistant Professor (cross appointed with Faculty of Arts)

"Dr Adair is a brilliant scholar who is also an outstanding collaborator and communicator – someone who is forging an international scholarly reputation in her specialisation while networking across disciplines and Faculties."

[READ MORE]

Roda Mushkat on Radical Overall of Hong Kong’s Governance Regime: Likely Implications for Prosperity and Stability (Notre Dame Journal of International & Comparative Law)

"Radical Overall of Hong Kong’s Governance Regime: Likely Implications for Prosperity and Stability"

Roda Mushkat

Notre Dame Journal of International & Comparative Law 

Volume 13, Issue 1

Published in 2023

Abstract: Constitutional evolution is normally a steady process, with the prevailing equilibrium seldom punctuated. Sharp reversals periodically occur but they are uncommon, usually confined to low-income and lower middle-income countries. The introduction of a draconian national security law and its heavy-handed enforcement in the affluent Hong Kong capitalist enclave, serving as one of the world economy’s pivotal global metropolises, thus amounts to a historically unprecedented emasculation of a sound and well-thought-out governance architecture. The abrupt unraveling of a semi-democratic infrastructure, pulverizing of key components of a time-honored rule-of-law system, and erosion of international legal personality has been breathtaking and profoundly disconcerting. Yet, the ramifications of this dramatic turn of events have so far been narrowly examined, with the impact on the twin strategic goals of prosperity and socio-political stability largely overlooked. This is an issue that deeply concerns Hong Kong’s many stakeholders, and insights derived from the law-and-economics and law-and-politics literature suggest that the agonizing revamp of the governance regime bodes ill for the territory and, by extension, those engaged with it economically and otherwise.

New Episode of Regulatory Ramblings Podcast: Dr Kuzi Charamba on Human Rights in the Metaverse

"How can corporations ensure human rights in the Metaverse"

Are we looking back to the 17th-18th century East India Company for clues in order to visualise regulations in the Metaverse?

In this episode of Regulatory Ramblings Briefs, Dr. Kuzi Charamba, a Postdoctoral Fellow at HKU’s Faculty of Law, speaks to host Ajay Shamdasani about his paper entitled “Beyond The Corporate Responsibility to Respect Human Rights In The Dawn Of A Metaverse”.

They discuss the need for regulators and policymakers to be more forward-looking rather than reactive in terms of regulation of and governance in a Metaverse; the possibility for global harmonization of rules in this new realm; how to govern multiple, disconnected Metaverses; the dichotomy between one’s physical and digital personality, and how to set up appropriate governance systems for that.

SSRN Paper link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4043254

Youtube embed: https://www.youtube.com/watch?v=87vK22fR13o&t=5s

New Book Edited by Po Jen Yap & Rehan Abeyratne : Routledge Handbook of Asian Parliaments (Routledge)

Routledge Handbook of Asian Parliaments
Edited By
Po Jen Yap & Rehan Abeyratne

Routledge

Published in March 2023

408 pp.

Book Description: This Handbook showcases the rich varieties of legislatures that exist in Asia and explains how political power is constituted in seventeen jurisdictions in East, Southeast and South Asia.

     Legislatures in Asia come in all stripes. Liberal democracies co-exist cheek by jowl with autocracies; semi-democratic and competitive authoritarian systems abound. While all legislatures exist to make law and confer legitimacy on the political leadership, how representative they are of the people they govern differs dramatically across the continent, such that it is impossible to identify a common Asian prototype. Divided into thematic and country-by-country sections, this handbook is a one-stop reference that surveys the range of political systems operating in Asia. Each jurisdiction chapter examines the structure and composition of its legislature, the powers of the legislature, the legislative process, thereby providing a clear picture of how each legislature operates both in theory and in practice. The book also thematically analyses the following political systems operating in Asia: communist regimes, liberal democracies, dominant party democracies, turbulent democracies, presidential democracies, military regimes, and protean authoritarian rule.

     This handbook is a vital and comprehensive resource for scholars of constitutional law and politics in Asia.

New Book by Richard Wu et al : The Good Chinese Lawyer: a Student Guide to Law and Ethics (Cambridge University Press)

The Good Chinese Lawyer: a Student Guide to Law and Ethics
Adapted by Adrian Evans, Richard Wu and Xu Shenjian
Cambridge University Press
Published in January 2023

312 pp.

Description: The Good Chinese Lawyer explores the ethical and professional challenges that will confront a law student, and will help them to prepare for life as a lawyer. The book offers principled and pragmatic advice about how to overcome such challenges. It urges readers to examine motives for seeking a career in law, to foster a deep understanding of what it means to be 'good' lawyer, and how to draw on virtue and judgment when difficult choices arise, rather than simply relying on rushed compliance with rules or codes. The Good Chinese Lawyer analyses four important areas of legal ethics – truth and deception, professional secrets, conflicts of interest, and professional competence – and explains the choices that are available when determining a course of moral action. It links theory to practice, and includes many diagrams and scenarios to illustrate ethical concepts and good decision-making.

• Includes a values-identification process, situated in the context of topical scenarios that apply throughout Greater China, relevant to and accessible by law students
• Provides a comparison of relevant legal professional conduct rules applicable to mainland China, Hong Kong SAR and Taiwan
• Utilises easy-to-understand tables that set out the legal ethical principles of major philosophical traditions, matched to those legal professional conduct rules

New Book: Archbold Hong Kong 2023 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2023
Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2022

Preface by the General Editor

The past year saw only seven criminal law judgments from the Court of Final Appeal, each having significance beyond the immediate case. They are worth mentioning here. We saw the Court apply the ejusdem generis rule of construction to read offences more narrowly than the position adopted by the prosecution. There was the weapon and instrument offences in section 17 of the Summary Offences Ordinance (Cap 228), which the Court described as being “rather poorly drafted” (HKSAR v Chan Chun Kit [2002] HKCFA 15, [15]).  Another case concerning the falsity element in forgery-related offences adopted the narrower view that the falsity must relate to the purported circumstances of the making or alteration of the instrument and not to extraneous facts (HKSAR v Chan Kam Ching (2022) 25 HKCFAR 48, [63]). It affirms the position that a forged document does not merely tell a lie but tells a lie about itself (at [66]).  

     The Court affirmed the principle of open justice in HKSAR v Chan Hon Wing (2021) 24 HKCFAR 448, holding the principle had been breached when jurors were provided with headsets to listen to a simultaneous English to Chinese interpretation of the summing-up that was not recorded, precluding verification of what the jurors had heard. The judgment contains the quotable sentence: “Open justice requires that justice be seen to be done, not assumed to have been done” (at [67]). 

      The issue of cross-examination as to credit was revisited in HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, which highlighted a “requirement of laying a proper foundation for casting an imputation of misconduct against a witness” (at [32]).  The elements of the offences of unlawful assembly and riot were clarified in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 together with the question of when the common law doctrine of joint enterprise liability applies to these offences.  The Court will revisit what was said in this judgment, having granted leave to appeal in HKSAR v Choy Kin Yue [2022] HKCFA 14. 

     In HKSAR v Fu Man Kit (2021) 24 HKCFAR 253, it was held the double jeopardy principle, whether under the common law or the Hong Kong Bill of Rights, was not engaged when a prisoner is prosecuted for conduct which was earlier the subject of prison disciplinary penalties.  Finally, the Court clarified that a legislator may be prosecuted for the offence of contempt if he or she creates a disturbance that interrupts a Legislative Council proceeding and the conduct does not form part of any speech or debate (see Secretary for Justice v Leung Kwok Hung (2021) 24 HKCFAR 234).

      The Court of Appeal made important statements of the practice expected of counsel in two cases. On the duty of counsel to inform the court of procedural irregularities, the court referred to [10.39] of the 2018 revised version of the Bar’s Code of Conduct and stated: “Given the strict duty imposed on counsel by the Court of Appeal and now reflected in the new Bar Code, it is clearly no longer proper for counsel to consciously sit on an error by the judge so as to make it a ground of appeal” (HKSAR v Chak Kong Fai [2022] 1 HKLRD 370, [223]).  Useful guidance and reminders on the form and content of perfected grounds of appeal can be found in HKSAR v Khaw Kim Sun [2022] HKCA 802, [126]-[137].  In summary it was said that the appeal should focus on errors that affected the result and not inconsequential minutiae or new unsupported theories about the case. It should have only a short and concise statement of the essential issue to which the grounds relate. A number of different grounds should not masquerade as a single ground of appeal. Avoid repetition and obvious overlap between the various grounds.

      As to legislative reforms in the past year, two statutes are worth noting, both introducing enhanced protections to personal privacy. The Crimes (Amendment) Ordinance 2021 introduced new offences of voyeurism, unlawful recording or observation of intimate parts, publication of images originating from these offences, and publication or threatened publication of intimate images without consent.  The Personal Data (Privacy) (Amendment) Ordinance 2021 amended and introduced offences for disclosing personal data without consent and conferred powers on the Privacy Commissioner for Personal Data to investigate and enforce offences including the power to prosecute.  Finally, Practice Directions 36 and 37, taking effect respectively on 6 June and 5 September, 2022, will hopefully remove some of the delay we have seen in the handing down of judgments.

    I am most grateful for the co-operation and contributions of the contributing editors and Sentencing Editor. I wish to thank particularly those who are stepping down this year and welcome on board the new editors who will be joining us soon. I thank the Editor-in-Chief for his constant support. Finally, I express my appreciation for the efficient and helpful assistance provided by the team at Thomson Reuters.

Professor Simon NM Young

Parkside Chambers

7 September 2022

Miguel Manero de Lemos and Simon NM Young on Regional Judicial Cooperation in Criminal Matters: Mainland China, Hong Kong and Macau (new book chapter)

"Regional Judicial Cooperation in Criminal Matters: Mainland China, Hong Kong and Macau"
Miguel Manero de Lemos and Simon NM Young
in Elgar Encyclopedia of Crime and Criminal Justice
Edward Elgar Publishing
Published online in Dec 2022 

I. Introduction

This entry outlines the law and practice of regional judicial cooperation in criminal matters within the larger People’s Republic of China (PRC). The current account is one of cooperation between three territorial parts of the PRC, namely Mainland China (Mainland) and the two special administrative regions of the PRC, the Hong Kong Special Administrative Region (HKSAR or Hong Kong) and the Macau Special Administrative Region (MSAR or Macau). But prior to 1997 and 1999, the years in which the PRC respectively resumed the exercise of sovereignty over Hong Kong and Macau, the account was one of cooperation between three sovereigns, namely the PRC, the United Kingdom ( England & Wales) and Portugal. Ironically, in the more than two decades after the resumption of Chinese sovereignty, there has been less formal cooperation between the three territories within one country than there was when cooperation was between three sovereign states. This is because the ‘one country, two systems’ model, which underpins the constitutional relationship between the Central People’s Government (CPG) and the Governments of Hong Kong and Macau, has been unable to bridge the differences in the laws and values of the criminal justice system in each of the three jurisdictions. The tensions that have arisen are described in this entry... 

Congratulations to Dr Benjamin Chen!

Congratulations to Dr Benjamin Chen on his promotion to Associate Professor!  Dr Chen is an interdisciplinary scholar whose research is situated at the intersection of law and social sciences. He is also a highly productive scholar and has published in both law reviews and peer-reviewed journals, including the Harvard International Law Journal, Harvard Journal of Law & Technology, and Columbia Journal of Asian Law. Dr Chen is a valuable member of our faculty, and this promotion is a well-deserved recognition of his contributions. To read more about Dr Chen's research and publications, click here.

"Courts Without Separation of Powers" by Benjamin Chen and Zhiyu Li (Harvard International Law Journal)

"Courts Without Separation of Powers"

Chen, Benjamin and Li, Zhiyu 

Harvard International Law Journal, 

Vol 64(1), 2023

Abstract: Like courts everywhere else, socialist courts are tasked to settle disputes. Their decisions are backed by the force of law. But unlike courts everywhere else, socialist courts are also required to support official ideology and policies. They are subject to legislative supervision and party leadership in the performance of their duties. The repudiation of the notion of separation of powers and the instrumental conception of law are conventionally taken to be defining—and defective—aspects of socialist legality. But the political accountability of socialist courts could also be empowering. Because socialist courts answer, in theory, to the people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional theory and doctrine do not prohibit socialist courts from venturing beyond the confines of adjudication to address issues not presented for resolution. We study how courts in the world’s largest socialist regime identify and tackle social problems ranging from public health to education to crime through the device of judicial suggestions. These suggestions transcend the legal questions raised by litigants and may be directed to private actors like companies and public entities including governmental agencies. Though not binding on their recipients, judicial suggestions are frequently acknowledged and sometimes adopted. Occasionally, they have even precipitated systematic reform. Our exploration of judicial suggestions in China illuminates a function that is available to socialist courts because of their political subordination to the party-state. More broadly, the approach exemplified here steps outside the rule of law and judicial independence paradigms to examine how dogma and doctrine shape the boundaries of institutions, thereby contributing to a more holistic evaluation of socialist courts and their place in the political legal order.  Click here to download the full article.