Kung Hey Fat Choy 2025

 HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year 2025.

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

The Year of the Snake.

HKU Law Welcomes Ms. Lea-Anne Lee

Welcome to Ms. Lea-Anne Lee, who joins the Faculty of Law as a Senior Lecturer.

Lea-Anne graduated from University College London and obtained her Postgraduate Certificate in Laws at the University of Hong Kong. She was admitted as a solicitor in England and Wales and Hong Kong.

During her extensive private practice with Hogan Lovells, Clifford Chance and Freshfields in London and Hong Kong, she specialised in advising financial institutions on mergers and acquisitions and financial laws and regulations. Her clients included the full spectrum of participants in financial services including retail and investment banks, insurers, asset managers, fund houses, brokers and intermediaries.

Since the Global Financial Crisis in 2008, Lea-Anne undertook various senior management roles in house advising on domestic and cross border legal, compliance and regulatory aspects on restructuring, business controls and risk management for various international financial services operations in Asia Pacific (covering China, Hong Kong, Singapore, Japan, Korea, India, Taiwan, Australia as well as various South East Asian countries), including ABN AMRO, Credit Suisse/UBS and Bank of China (Hong Kong) Limited. She was responsible for navigating regulatory affairs and handling critical and large scale interactions with domestic regulators and international college of supervisors.

At the University of Hong Kong, her main focus of teaching is on financial laws and regulations. She looks forward to sharing her deep experience on the financial industry’s practice and compliance issues.

Yi Tang on Charting a New Legal Order: ASEAN’s Arbitration Reform in Taming the “Unruly Horse” of Public Policy Exception (Chinese (Taiwan) Yearbook of International Law and Affairs)

"Charting a New Legal Order: ASEAN’s Arbitration Reform in Taming the “Unruly Horse” of Public Policy Exception"
Yi Tang (PhD Candidate)
Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 41, 2023, pp. 112-156
Published online: December 2024

Abstract: In light of the critical role of arbitration in resolving international commercial disputes within the rapidly developing and integrating ASEAN economies, this study investigates the interpretation and application of the public policy exception, a major factor in the enforcement of foreign arbitral awards, across ASEAN’s diverse legal jurisdictions. It critically assesses how different ASEAN countries, each at varying stages of arbitration development, approach this exception. It highlights the differences in interpretation, with more developed jurisdictions adopting a narrower approach, contrasting with broader interpretations in less developed ones, thus revealing a correlation between a jurisdiction’s level of arbitration development and its approach to the public policy exception. This study also observes a possible trend towards greater coherence and uniformity in recent arbitration reforms across the region. Despite the challenges in harmonizing the public policy exception regionally, it argues for a uniform and narrow interpretation, aligning with international standards to enhance ASEAN’s attractiveness for cross-border business and investment.

Sida Liu and Anson Au on Mobility Spaces: Geographical and Professional Distances in Career Mobility (JABS)

"Mobility Spaces: Geographical and Professional Distances in Career Mobility"
Sida Liu and Anson Au
Journal of Applied Behavioral Science
Published online: December 2024

Abstract: This article introduces the novel concept of “mobility spaces” to investigate the role of geographical and professional distances in career mobility and how they are influenced by social structural factors. Mobility spaces encompass physical, social, and legal spaces that professionals navigate while shaping their career trajectories over time. The study focuses on the movement of professionals across mobility spaces and examining the constraints and opportunities affecting their career paths. Using empirical data on the mobility of Hong Kong law firm partners from 1994 to 2021, the article demonstrates that social structural factors such as gender, race and ethnicity, firm origins, and firm prestige significantly influence the geographical and professional distances that professionals manage to traverse in their career moves. The mobility spaces theory aims to use space to contextualize the interplay between individual and macrostructural factors in shaping professional career outcomes.

HKU Awards for Research Excellence 2023-24

Congratulations to all Faculty of Law colleagues who were recognised in HKU Awards for Research Excellence 2023-24:

Outstanding Researcher Award 2023-24
Thomas Cheng

Outstanding Young Researcher Award 2023-24
Zhuang Liu

University’s Research Output Prize 2023-24 (Faculty of Law)
'The Governance of Chinese Charitable Trusts'

By Hui Jing, published by Cambridge University Press in September 2023

More details of the HKU Awards for Research Excellence can be found here. 

Adrian Kuenzler on Regulatory Diffusion Beyond Digital Empires – Searching for a Resilient Competition Law Framework (GRUR International)

"Regulatory Diffusion Beyond Digital Empires – Searching for a Resilient Competition Law Framework"
Adrian Kuenzler
GRUR International
Published online: December 2024

Extract: Regulation has had a resurgence across many jurisdictions of late, with digital platforms being distinct new objects that need to be addressed. The emergence of this new regulatory object is part of a global – and vital – tendency toward reassessing tech power and state sovereignty. However, there are considerable differences in how digital platforms are dealt with across jurisdictions. The European Union, the United States, and China have each adopted their own regulatory approaches, ranging from rights-based to market- and state-driven models. While this has led to concerns about regulatory fragmentation and increased costs for consumers, considerable uncertainty also remains regarding how to regulate, identify, and adopt the most suitable regulatory approach.

A largely underappreciated aspect of this debate is the rapid process of regulatory diffusion – the adoption of substantially similar rules – in different jurisdictions beyond the major digital empires. Examples include the member states of the Association of Southeast Asian Nations and its trading partners, where a shift from an ex post to an ex ante regulatory approach in competition law is underway, with the Digital Markets Act (DMA) emerging as a blueprint that different countries customize to fit their digital ecosystems and domestic policies.

Shahla Ali on Conciliation Beyond the Courts – Aspirations and Limits of Mandated and Voluntary Court Mediation Programmes From a Multi-Jurisdictional Perspective (CPLJ)

"Conciliation Beyond the Courts – Aspirations and Limits of Mandated and Voluntary Court Mediation Programmes From a Multi-Jurisdictional Perspective"

Shahla Ali

in Comparative Procedural Law and Justice, edited by B Hess,M Woo,L Cadiet,S Menétrey, and E Vallines García (CPLJ Part XV Chapter 2)

Published online: November 2024

Introduction:

As judicial systems advance, evolving conceptions of justice are reflected in varying emphasis on the role, place and practice of conciliation beyond civil courts. How such programmes provide opportunities for party-directed reconciliation on the one hand while ensuring access to formal legal channels on the other remains an area of continued enquiry. The question this section seeks to explore is what drives the development of a nation’s particular approach to its court mediation system, whether voluntary or mandatory. How important is party choice in the success of court-connected mediation programmes? Given that ‘public means available for financing dispute resolution are not unlimited,’ a balancing of individual process choices and social efficiency requires careful investigation. Variation among such programmes in diverse societies reflects, to a large extent, distinct approaches to individual and collective responsibility for the financial, social and temporal resources required for resolution. In some jurisdictions, the design of court mediation structures may align with a view of conciliation as the mainstream, normatively preferable, rather than an ‘alternative’ approach to the resolution of disputes. In others, individual rights, protections, and choices are prioritized, with parties given the option to decide whether to engage in conciliation processes. The first part of this paper explores the motivations behind varying court mediation programme designs, voluntary or mandated, and the relative benefits, challenges and implications of such design choices. Examples of jurisdictions in which mediation has long been considered mainstream are explored to understand continuities in court-connected mediation programmes. This is followed by a discussion of comparative survey findings examining the impact of judicial mediation structure (mandated or voluntary) on perceptions of justice, efficiency and confidence in courts in ten jurisdictions.

Please click here to read the full text.

Taorui Guan on Collaborative Protection of Intellectual Property (University of Pennsylvania Journal of International Law)

"Collaborative Protection of Intellectual Property"
Taorui Guan
University of Pennsylvania Journal of International Law, Vol. 46 (2024), Issue 2
Published online: January 2025

Abstract: What constitutes the optimal approach to intellectual property (“IP”) protection? The mainstream method, prevalent in many countries, including the United States, is a court-centric model. In contrast, in response to heightened international innovation competition, China adopted an expansive collaborative protection model. This groundbreaking approach extends beyond governmental bodies, such as courts and administrative agencies, to non-governmental entities like private actors, social organizations, and educational institutions.

This paper offers a comprehensive analysis of China’s collaborative protection model, including its policies, legislation, and practical applications. It incorporates literature from public administration and administrative law on collaborative governance to dissect the model’s essence. It suggests that this model allows collaboration among diverse entities to integrate resources and information, aiming to achieve more effective IP protection.

The paper highlights the theoretical implications of the collaborative protection model on the dual nature of the IP system. As a property system, the emergence of the collaborative model implies that relying largely on courts might not offer optimal protection for IP, given its nonrivalrous and non-excludable nature. The pluralistic nature of collaborative protection enhances accessibility, diversity, and timeliness in IP protection, despite challenges like interest divergence, insufficient incentives, and rising costs. As a system of innovation regulation, the model reveals that states can improve the granularity of their innovation incentives through diverse enforcement institutions. While this approach complicates the IP framework, its adaptability in varied innovation scenarios might offset the intricacies, presenting a viable supplement to traditional innovation incentive regulation based on the structure of IP rights.

Anaïs Mattez on Indigenous Advocacy and the Compliance Mechanisms of the World Heritage Convention: a TWAIL Reading (International Journal of Cultural Property)

"Indigenous Advocacy and the Compliance Mechanisms of the World Heritage Convention: a TWAIL Reading"
Anaïs Mattez (PhD 2025)
International Journal of Cultural Property, First View, pp. 1 - 18
Published online: December 2024

Abstract: This article examines how Indigenous Peoples who depend on World Heritage sites for their culture and livelihood can appeal to the Committee when State Parties fail to comply with their obligations. While scholars criticize the World Heritage Convention for the lack of participation of Indigenous Peoples, particularly in the inscription and management processes, the framework of the Convention also allows representation and visibility. Indeed, compliance mechanisms offer opportunities for Indigenous advocates to negotiate Land sovereignty and environmental protection. TWAIL, which places the worldview of Indigenous Peoples at the center of legal practice, is crucial to understanding the interactions between Indigenous Peoples and the 1972 UNESCO Convention. TWAILers highlight how international law historically denies sovereignty rights to Indigenous Peoples. Article 6(1) echoes this absence of sovereignty. This article examines three cases in which Indigenous advocates petition to protect Native Lands against environmental degradations and colonization: Kakadu, Wood Buffalo, and Uluru. Ultimately, the challenges of Indigenous activists in their quest to preserve nature and culture reveal that the absence of sovereignty prerogatives remains a substantial issue. While the Convention provides a venue for advocacy and international awareness, Indigenous Peoples still must negotiate Land autonomy and cultural sovereignty with the State.

Michael Ng awarded honorable mention of the ISCLH 2024 Biennial Book Prize

Congratulations to Michael Ng (吳海傑), whose book Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997) was awarded the honorable mention of the International Society for Chinese Law & History (ISCLH) 2024 Biennial Book Prize. The book was published by the Cambridge University Press in September 2022.

    Background on the prize: The International Society for Chinese Law and History (ISCLH) has established a biennial book prize for the monograph that has been published in the previous two years and made a major and unique contribution to improving understanding of Chinese law and history. Eligible monographs shall be based on original research on Chinese law in history, historical works with extensive and substantial legal analysis, or historically grounded legal studies comparing China and another society. For more information on the book prize, click here.

Trevor Wan on Contesting Collateral Challenge: HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71 (Judicial Review)

"Contesting Collateral Challenge: HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71"
Trevor Wan
Judicial Review
Published Online: December 2024

Introduction: 

1. A collateral challenge exposes to legal scrutiny a public law act or decision in proceedings the primary object of which is not to impugn the validity of that act or decision. The public law challenge, rather, is ‘collateral’, ‘indirect’, or ‘incidental’ to the main issue under determination, which may be the liability or guilt of the defendant. As a collateral challenge is asserted outside the parameters of conventional judicial review, it is neither subject to nor encumbered by the procedural peculiarities that underpin the latter, thus rendering it an ‘exception’ to the well-recognised rule of procedural exclusivity in O’Reilly v Mackman. In the criminal context, a collateral challenge typically contests a public law act, the lawfulness of which constitutes an essential ingredient of the offence with which the defendant is charged, relying on for example the familiar grounds of illegality, irrationality, and procedural impropriety. If successful, the collateral challenge will undermine the prosecution’s case and potentially lead to an acquittal.

2. The doctrine of collateral challenge was recently considered by the Hong Kong Court of Final Appeal (CFA), the apex court of the jurisdiction, in HKSAR v Chow Hang Tung. In a split decision by a narrow margin of three-to-two, a majority of the CFA reaffirmed the principles governing the availability of collateral challenge in criminal proceedings laid down in R v Wicks and Boddington v British Transport Police, which are rooted in statutory interpretation. Furthermore, the CFA explicitly recognised a discrete category of collateral challenge, where the challenge stems not from statutory non-compliance or conventional public law grounds (i.e. ordinary collateral challenge), but incompatibility with constitutional provisions in the Basic Law and Hong Kong Bill of Rights, the Special Administrative Region’s statutory charter of rights incorporating the International Covenant on Civil and Political Rights (i.e. constitutional collateral challenge).

3. While the defendant in the end fell short of escaping conviction, the judgment...

(Click here to read the full article)

New Book: Archbold Hong Kong 2025 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2025
Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2024

Preface by the General Editor

The Safeguarding National Security Ordinance (Ord. No. 6 of 2024) (“SNSO”) entered into force on 23 March 2024, only 15 days after the bill was read the first time in the Legislative Council. The SNSO adds 121 new provisions to our criminal law and amends/repeals 94 provisions across 28 Ordinances, including subsidiary legislation. Naturally, the changes brought about by the SNSO figure prominently in some of the chapters in this year’s volume, especially in Chapter 26 (National Security). Going forwards, legal updates in national security law will be captured in Chapter 26, except for those relating to sentencing (Chapter 5), proceeds of crime and production orders (Chapter 41), and other police powers (Chapter 15), which will be captured in the respective chapters indicated. I am grateful to the contributing editors of these and other chapters for their efforts in updating Archbold Hong Kong to reflect these new changes.

The SNSO fulfils the Hong Kong Special Administrative Region’s duty to enact laws on its own to prohibit seven types of national security threats, as mandated by Article 23 of the Basic Law. The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) of June 2020 covered two of those prohibitions (i.e. secession and subversion) and added new crimes to address terrorist activities and collusion with a foreign country or external element. The SNSO completes the national security ecosystem by modernising previous offences (e.g. treason, misprision of treason, unlawful drilling, incitement to mutiny or disaffection, sedition, and offences in connection with state secrets and espionage), adding new ones (e.g. insurrection, sabotage, acts in relation to computers and electronic systems, external interference, disclosing a national security investigation, harassing persons handling national security cases/work), and conferring new executive powers to prohibit organisations endangering national security.

Perhaps the most controversial aspects of the SNSO are the departures from procedural norms that apply to other offences (e.g. extended detention of arrested person, restricted access to legal representative, movement restriction orders of persons on bail, disregarding 8-day rule on remand, translation of statements and exhibits only by order of magistrate, dispensing with preliminary inquiry, no section 16 discharge, anonymity measures). Those convicted of offences endangering national security cannot have a sentence of imprisonment suspended (i.e. they are excepted offences) and face presumptions against remission and early release. Finally, there are new measures aimed at facilitating the return of specified “absconders” who are not in Hong Kong.

Unlike the NSL, the offences and measures in the SNSO may be judicially reviewed for compatibility with the Basic Law and Hong Kong Bill of Rights. The “Principles” of the SNSO states that “human rights are to be respected and protected” and the rights and freedoms “enjoyed under the Basic Law, the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to the HKSAR, are to be protected in accordance with the law” (s.2(b)). The presumption of innocence and other legal rights in the criminal process are also expressly mentioned in the statement of Principles (s.2(c)). No doubt cases in the future will raise issues as to the proportionality of the new rules and decisions executed under those rules. For now, the number of notable national security law judgments can still be listed on less than two pages (see list below).

I wish to express my deep appreciation for the hard work of contributing editors in providing updates throughout the year for the supplements and main work, for the continuous support of the Sentencing Editor and Editor-in-Chief, for the diligent research done by my student editors (Oscar Wong, Jonathan Ho, and Cover Lai), and for overall management by Thomson Reuters colleagues, especially Wing Yan Ng.

Professor Simon NM Young

Ian Davies Professor in Ethics

Parkside Chambers

18 August 2024

List of Notable National Security Law Judgments

HKSAR v Tam Tak Chi [2024] HKCFA 25 (CO 9(1), legal certainty and proportionality of previous sedition offence)

HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332, [2023] HKCFA 26 (NSL 33, sentencing bands, mitigating factors)

Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288, [2022] HKCFA 23 (NSL 3, courts' duty to safeguard national security and proper adjudication)

HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417, [2021] HKCFA 42 (NSL 42(2) applies to Crimes Ord ss.9-10)

HKSAR v Lai Chee Ying  (2021) 24 HKCFAR 33, [2021] HKCFA 3 (NSL 42(2), NSL not subject to constitutional review, grounds for granting bail)

Secretary for Justice v Persons Conducting Themselves in Acts Prohibited (Use of Protest Song) [2024] 3 HKLRD 32, [2024] HKCA 442 (NSL 21, secession, civil injunction in aid of criminal law, necessity test)

HKSAR v Tam Tak Chi [2024] 2 HKLRD 565, [2024] HKCA 231 (Crimes Ord ss.9-10 sedition, jurisdiction under NSL 41(3), elements of offence, constitutional challenge)

Lai Chee Ying v Commissioner of Police [2022] 5 HKLRD 205, [2022] HKCA 1574 (NSL Implementation Rules (“IR”) Sch.1, journalistic materials)

HKSAR v Ma Chun Man [2022] 5 HKLRD 246, [2022] HKCA 1151 (NSL 21, sentencing, "serious nature")

Tong Ying Kit v Secretary for Justice [2021] 3 HKLRD 350, [2021] HKCA 912 (NSL 46(1) SJ certificate for non-jury trial, unamenable to constitutional review)

HKSAR v Ng Gordon Ching Hang [2024] HKCFI 1468 (NSL 22(3), elements of subversion, "unlawful means")

HKSAR v Chow Hang Tung [2024] HKCFI 553 (failing to comply with IR Sch.5 notice)

HKSAR v Kwok Man-hei [2024] HKCFI 280 (sentencing of Returning Valiant, conspiracy to commit terrorist activities)

Lai Chee Ying v The Committee for Safeguarding National Security of the HKSAR [2023] HKCFI 1382 (NSL 12, 14, Committee decision not amenable to judicial review)

HKSAR v Lai Chee Ying  [2023] 3 HKLRD 534, [2023] HKCFI 1440 (NSL 44, stay of proceedings)

Lai Chee Ying v Secretary for Justice [2023] 3 HKLRD 275, [2023] HKCFI 1382 (NSL 14, 47, NPCSC Interpretation, no jurisdiction over National Security Committee, certification against overseas lawyers)

Chow Hang Tung v Secretary for Justice [2022] 4 HKLRD 183, [2022] HKCFI 2225 (Magistrates Ord s.87A(2), lifting of reporting restrictions in committal for NSL charges)

J v Commissioner of Police [2021] 5 HKLRD 708, [2021] HKCFI 3586 (IR Sch.7, judicial authorisation)

HKSAR v Leung Kam Wai [2021] HKCFI 3214 (IR Sch.5, NSL 42(2) bail grounds apply to scheduled offences)

Lai Chee Ying v Secretary for Security [2021] 4 HKLRD 695, [2021] HKCFI 2804 (IR Sch.3, dealing with "specified property" includes exercising shareholder voting rights)

HKSAR v Tong Ying Kit [2021] 5 HKC 100, [2021] HKCFI 2239 (NSL 20-21, 24, sentencing, 9 years imprisonment)

HKSAR v Tong Ying Kit [2021] 5 HKC 100, [2021] HKCFI 2200 (NSL 20–21, 24, elements of secession and terrorism, assessment on protest slogan )

A and B v Commissioner of Police [2021] 3 HKLRD 300, [2021] HKCFI 1801 (IR Sch.7, legal professional privilege)

Next Digital Ltd v Commissioner of Police [2021] 5 HKC 411, [2021] HKCFI 1677 (IR r 2, empowers all police officers)

HKSAR v Tong Ying Kit [2021] 3 HKLRD 87, [2021] HKCFI 1644 (Criminal Procedure Ord s.23(1), late addition of alternative non-NSL charge, jurisdiction of designated judge)

HKSAR v Wan Yiu Sing Edmund [2021] HKCFI 1261 (bail refused)

Next Digital Ltd v Commissioner of Police [2021] 2 HKLRD 857, [2021] HKCFI 1128 (order to enable access to digital device refused)

HKSAR v Lai Chee Ying [2021] HKCFI 448 (bail application after CFA decision)

HKSAR v Cheung King-sang Kinson [2021] HKCFI 3584 (bail granted)

Tong Ying Kit v HKSAR [2020] 4 HKLRD 382, [2020] HKCFI 2133 (NSL 42(2),  lawful authority for refusal of bail, habeas corpus refused)

HKSAR v Cheung King Sang Kinson [2023] HKDC 1463 (sentencing for advocating terrorism)

HKSAR v Wong Denis Tak Keung [2023] HKDC 168 (sentencing for incitement to subversion)

HKSAR v Lai Man-ling [2022] HKDC 1004 (sentencing in speech therapists’ sedition case)

HKSAR v Lai Man-ling [2022] HKDC 981 (verdict in speech therapists’ sedition case)

HKSAR v Wan Yiu Sing Edmund [2022] HKDC 958 (sentencing for conspiracy to do acts with seditious intention)

New Issue of Asia-Pacific Journal on Human Rights and the Law (Volume 25, Issue 3, Dec 2024)

ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editor-in-Chief: Simon NM Young

Publisher: Brill, Leiden

2024, Volume 25, Issue 3

Table of Contents

Articles:

Male Rape Victims and the Case for a Gender-Neutral Definition of Rape in Bangladesh
A Gender and Human Rights Perspective

Author:  Arifur Rahman

Pages: 215–245

Online Publication Date: 29 Nov 2024

From Semi-democracy to Autocracy
The Reform of Macau’s Electoral System

Author: Sérgio de Almeida Correia

Pages: 246–281

Online Publication Date: 02 Dec 2024

Collection of DNA and the Creation of DNA Databases in India: A Proportionality Analysis on Whether There is a Violation of Genetic Privacy

Author: Rudra Chandran

Pages: 282–308

Online Publication Date: 29 Nov 2024

Review Article:

Scholarship with a Purpose: Frontiers of Gender Equality Pushes the Boundaries for Students and Scholars Alike

Author: Carole J. Petersen and Kate Atanasio

Pages: 309–328

Online Publication Date: 29 Nov 2024

back matter:

Back matter

Pages: 329–330

Online Publication Date: 10 Dec 2024