HKU Law Scholars Make Submissions on the 2024 Article 23 Bill and Consultation Paper

In January 2024, the Security Bureau of the HKSAR Government released its long-awaited Public Consultation Document on Basic Law Article 23 national security law proposals (“Safeguarding National Security: Basic Law Article 23 Legislation”). On 8 March 2024, the Safeguarding National Security Bill was presented to the Legislative Council for first and second reading.  Scholars in the Faculty of Law have prepared written submissions (and articles) on the proposals contained in the consultation paper and bill. This commentary can be accessed below.

Albert Chen: Ming Pao 1, Ming Pao 2

Simon NM Young: Submission on the Bill (Chinese Translation on HK01), Submission on the Consultation Paper (Chinese Translation on HK01).  In anticipation of the passage of the Safeguarding National Security Ordinance, Professor Young shared these comments on the new law with various media outlets:

"The Safeguarding National Security Ordinance is plainly intended to deter people from taking any step that might put national security at risk. It achieves this with tough sanctions and special restrictive procedures if one gets caught up in the system. It completes the national security ecosystem which began with the 2020 National Security Law making the system now intensely robust. Once the law is passed, the Central Government will rest assured that there are comprehensive and suitable measures in place in Hong Kong to suppress any threats, whether they be external or internal, to the stability and safety of the country.

For most Hong Kong people, the new law will have little relevance and impact on their daily lives. There are four categories of persons who are likely to be impacted and will need to take more care and be familiar with the requirements and contours of the new law. They are as follows: (a) public officers; (b) government contractors; (c) those who have regular dealings with external forces; and (d) those already within the system or within the radar of the national security authorities.

For categories (a) and (b), the new provisions on state secrets and espionage will need to be closely studied. Category (c) could include a wide range of persons and companies, including academics and journalists. For the most part, the cooperation that tends to happen with external forces already will not lead to any liability under the new law. But if the cooperation tends towards advocating for policy or legal changes in Hong Kong or is simply critical of the Hong Kong or Central governments, then the new offences of espionage and external interference may well be applicable.

As for (d), there would be different sub-categories of persons depending on how far one is within the system. If one is already serving a sentence for a national security offence, unfortunately the time they need to serve will effectively be extended unless they can demonstrate no risk to national security if released with remission. For those facing charges, there will no longer be the option of a suspended sentence of imprisonment. Those who are arrested for a national security offence will also face a more restrictive set of procedures in relation to pre-charge detention, restrictions on accessing a lawyer, a greater hurdle in obtaining bail, and restrictions on movement if granted bail.

As for the legislative process, the Administration invested much effort and labour at the front-end of the exercise in preparing both the Consultation Paper and Bill. There was a dedicated team in Government, including the Secretary for Justice and Secretary for Security, who dutifully attended the long and intensive meetings held in LegCo. The Bills Committee members asked questions about all aspects of the Bill and replies were given. The questions tended towards having the Bill clarified or loopholes closed. The Government agreed with some of these comments and came up with proposed amendments. I would not say it was a rubber-stamping exercise. But fewer comments from legislators were directed to making the law less restrictive; hence we do not see any proposed amendments to this effect. In the past, LegCo Bills Committee meetings, on politically sensitive topics, would be much more fractious, with filibustering and other obstructions to the proceedings. Hence proceedings would have been much longer. Sadly some of the antics in the past would have drown out the more constructive yet critical comments that more moderate opposition legislators were making. In the past, the Bills Committee might also have called for deputations from experts in the community including from the legal profession and law schools. It is regrettable that this was not done on this occasion. I believe legislators would have benefited from such expert input given that the issues involve technical and complex questions/implications of criminal law, procedure and evidence."

Kung Hey Fat Choy 2024

HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year 2024.

Thank you to Richard Cullen for drawing and sharing his traditional annual cartoon to mark

The Year of the Dragon.

Shane Chalmers on The Rule of Law and International Development (OUP book chapter)

"The Rule of Law and International Development"
Shane Chalmers
in Ruth Buchanan (ed.), Luis Eslava (ed.), Sundhya Pahuja (ed.), The Oxford Handbook of International Law and Development (Oxford University Press 2023) Chapter 5
Published online: December 2023

Abstract: The aim of this chapter is twofold: to provide an overview of the international development project’s ‘rule of law’ agenda, and to do so in a way that shows its mythological character. In 1992 Peter Fitzpatrick published The Mythology of Modern Law, a work that exposed the constitutive relation between Europe’s racialised imperialism and its conception of modern law. In the three decades since, a renewed field of law and development has grown, this time in the name of ‘the rule of law’. This chapter shows how the mythology of modern law endures in this field of rule-of-law development. The analysis shows how the mythology of modern law, in its racialised imperial form, is integral to the work of international rule-of-law promotion. One consequence is the denial of ‘local’ law by a rule of law that obtains its authority by purporting to be responsive to legal pluralism.

Massimo Lando on Binding Advisory Opinions (CUP book chapter)

"Binding Advisory Opinions"
Massimo Lando
in Russell Buchan (ed),Daniel Franchini (ed),Nicholas Tsagourias (ed), The Changing Character of International Dispute Settlement: Challenges and Prospects, (Cambridge University Press, December 2023),pp. 106 - 134
Published online: December 2023

Summary: In this chapter, Massimo Lando focuses on the advisory jurisdiction of international courts and tribunals. This chapter explains that, traditionally, advisory opinions are not seen as a means of inter-State dispute settlement. However, it argues that recent developments justify re-assessing this traditional view. This chapter claims that the most significant development in this context is the judgment on preliminary objections delivered by the Special Chamber of the International Tribunal for the Law of the Sea in the maritime dispute between Mauritius and Maldives, which gave binding effect to the determinations made by the International Court of Justice in its 2019 advisory opinion concerning the decolonisation of Chagos. This chapter evaluates the Special Chamber’s decision by considering its impact on the Eastern Carelia doctrine and the Monetary Gold principle, as well as its implications for the legal effects of advisory opinions and for the legitimacy of exercising the advisory function.

Peter Chau and Lusina Ho on Agreement and Restitutionary Liability for Mistaken Payments (OUP book chapter)

"Agreement and Restitutionary Liability for Mistaken Payments"
Peter Chau, Lusina Ho
in Sagi Peari (ed.), Warren Swain (ed.), Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory, (Oxford University Press,December 2023),pp. 181-200
Published online: December 2023

Abstract: This chapter considers two recent attempts that claim a defendant’s actual or hypothetical agreement as grounds for restitutionary liability for mistaken payments. With respect to Alexander Georgiou’s attempt based on an actual but tacit agreement, it argues that his account: (1) confuses the motivating causes of the payment with the terms of the payment; (2) rests on a long chain of inference that raises doubt as to the general applicability of his argument to cases of mistaken payment; and (3) offers little guidance on when restitutionary liability should be imposed. With respect to Titiana Cutts’s argument, which is inspired by TM Scanlon’s idea of reasonable agreement, the chapter argues that: (1) the principles considered in her contractualist pairwise comparison are unduly limited and (2) the considerations she takes into account in deciding between principles, such as the security of a party’s plans and the impact on people with limited means, are not specific enough for her conclusion. For example, these considerations cannot explain why reasonable people must choose a principle that gives payors who paid upon a relevant mistake a general right to restitution, but not when they paid upon a misprediction.

Massimo Lando on Three Goals of States as They Seek Advisory Opinions from ITLOS (AJIL Unbound)

"Three Goals of States as They Seek Advisory Opinions from ITLOS"
Massimo Lando
AJIL Unbound (Volume 117 , 2023 , pp. 282 - 286)
Published online: December 2023

Extract: In most international tribunals, states alone can submit requests for advisory opinions.1 This is also true of requests to the International Tribunal for the Law of the Sea (ITLOS) sitting in plenary composition. The United Convention on the Law of the Sea (UNCLOS)2 does not expressly confer advisory jurisdiction on ITLOS. In practice, the Tribunal's advisory jurisdiction is governed by Article 138 of its Rules of Procedure, under which international agreements can empower entities to request advisory opinions of the Tribunal. The process leading to the making of advisory requests to ITLOS includes the drafting of legal questions and is largely political.3 In this process, sponsoring states have three goals: first, get requests before ITLOS; second, ensure that requests are not thrown out on grounds of jurisdiction or discretion; third, mobilize the constituency having stakes in the requests. This essay explores each of these goals.

New Book: Archbold Hong Kong 2024 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2024
Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2023

Preface by the General Editor

Hong Kong said goodbye to a legal giant on 24 June 2023. Sir Ti Liang Yang made enormous contributions to the law in Hong Kong before 1997, especially in criminal cases. In his 40 years of service in the Judiciary, he adjudicated criminal cases in all possible judicial roles in Hong Kong: magistrate, District Judge, Judge of the High Court, Justice of Appeal, Vice-President, and Chief Justice. Uniquely, he had a practice of visiting some of the defendants he had convicted to see how they were doing in prison.

    His vision of the law and the role of courts was articulated in a speech he gave at the Chinese University of Hong Kong in October 1984. He had no a priori concept of the place of law. Rather, he thought that society, as “the mother of law”, “determines the contents of its laws”. Believing a “particular type of society requires a particular law”, he was adamant that Hong Kong not simply copy English law but that it would take root and grow into something distinctively Hong Kong. He described the process in these terms, in his 1992 speech at the Opening of the Legal Year:

     “But the legal system that has taken root may still be regarded as an alien organism.  The final stage must be transformation – a process by which the spirit of the legal system is so intermingled with the culture and ethos of the new society that a new system emerges, still largely based on the ancestry whence it came, but evidencing a metamorphosis which has eradicated its foreignness.”

He believed this transformative process would not be insular but undergone with the benefit of talent and precedents from other common law countries, particularly “the United Kingdom, Australia, New Zealand or Canada”.  He thought that having foreign judges and lawyers serving in Hong Kong would help us “avoid being out of touch and at the same time enrich our own law”.

     As for the role of courts, it is the “judicial organ that breathes life and motion into our law”, whose aims include “to attain balance within the society”. He made the following insightful statement about the function of courts which is worth reflecting upon:

    “If the courts constantly let the people and the executive arm of government clearly understand the limits of their own rights and obligations so that all words and actions may be tested against the law, then the law will become something which is capable of life and movement, and it sets a standard of behaviour which everyone may rely on.”

     Many of his criminal law judgments have endured and demonstrated great foresight. For example, his judgments on attempts (The Queen v Chan Kwong [1987] HKLR 756 (CA)) and implied assertions in hearsay (The Queen v Ng Kin-yee [1994] 2 HKCLR 1 (CA)) are still assigned readings in our LLB/JD law curricula. His judgment on cross-examining police officers on lying in previous proceedings (The Queen v Lam Wai-keung [1994] 2 HKCLR 9 (CA)) resonates with the Court of Final Appeal (CFA)’s judgment in HKSAR v Wong Sau-ming (2003) 6 HKCFAR 135. One can trace the seeds of the Mushtaq direction to The Queen v Yu Ho-man [1995] 1 HKCLR 87, 89(ln 25) (CA). His judgment in Mohd. Daraiz v The Attorney General [1976] HKLR 386, 397 (HC), though overruled in Halim Sulman v The Queen [1977] HKLR 214 (CA), showed emergent recognition of a half-way house defence for offences of strict liability. His judgment on the co-conspirators’ rule (The Queen v Alick Au Shui Yuen [1993] 2 HKC 219 (CA)) has been highly influential and helped inform the later CFA judgments on the issue, e.g. HKSAR v Vivien Fan (2011) 14 HKCFAR 641.

     Sir Ti Liang had a strong view of judicial independence. He stated: “It is absolutely necessary that judicial work be carried out strictly in accordance with the law and be not influenced by outside factors in any way.”  Thus, despite receiving several threatening letters when he was trying the corruption case of former police superintendent, Peter Fitzroy Godber, they had no influence on him and he was not scared.  He also believed judicial independence “not only ensures impartial trials, it also has the effect of preventing abuses and excesses by the government so that the people may receive the protection of the law”.  Such view was reflected in his decision in The Queen v Li Wing-tat [1991] 1 HKLR 731 (HC), holding that the magistrate should have stayed the charges brought against protesters for using loudhailers and collecting donations without permit.  He found that it offended “the sense of fairness” for the police to suddenly change from a regular practice of giving violators a warning to prosecuting them, without prior notice of a change in practice.  Though the decision was overturned in The Queen v Soo Fat Ho [1992] 2 HKCLR 114 (CA), it demonstrates the former Chief Justice’s concern that prosecutorial power be not abused.

     I wish to thank all those who contribute to the continuing success of this publication including all the contributing editors, the Sentencing Editor, the Editor-in-Chief, my team of student editors, and the wonderful colleagues at Thomson Reuters.

Professor Simon NM Young
Ian Davies Professor in Ethics
Parkside Chambers
29 August 2023