Eric Cheung Interviewed on Obstacles to Lawyers Providing Pro Bono Advice in Hong Kong (SCMP)

"Hong Kong urged to catch up with regional neighbours and remove obstacles to lawyers providing free legal advice"

South China Morning Post
Alvin Lum
5 January 2019

Hong Kong authorities have been urged to catch up with regional competitors in encouraging free legal advice by investing public money and setting up service platforms, according to local and Australian legal experts.

     They said Australia and Singapore have launched reforms to give NGOs, and ordinary citizens, greater access to legal services needed for their daily lives, such as settling disputes with landlords and employers, or even with the police.

     To provide legal advice in Hong Kong, voluntary or not, qualified lawyers must first get their law firms to buy professional indemnity insurance for them, in case their clients sue them for making a wrong call in the legal process.

     In Hong Kong, lawyers can only be insured collectively as part of a law firm. This means that lawyers cannot provide legal advice to NGOs or underprivileged people, unless they get permission and financial support from their employers.

...

     Principal law lecturer at the University of Hong Kong, Eric Cheung Tat-ming, who runs one of the city’s few clinics providing free legal advice, has his volunteer lawyers insured by the publicly funded Duty Lawyers Service scheme.

   Cheung believes the Hong Kong government should either consider revising local laws on professional indemnity, or bulk purchase of insurance for pro bono lawyers.

     “For each year, it may involve a few hundred thousand dollars, but it could help many lawyers provide free legal services. The government could absolutely afford it.”

     Cheung, who also served on the governing council of the Law Society, said that without revising the law, the existing legal framework was not conducive to pro bono work. He said many lawyers offering free legal advice – including those under the government’s duty lawyer scheme to give legal advice at district offices – run the risk of violating the professional code, which requires lawyers to be covered by professional indemnity.

     “This is a genuine ticking time bomb, because it’s a compulsory requirement,” he said. Click here to read the full text.

Reviving Article 23: Two-Part Story on Hong Kong's National Security Debate (Hong Kong Free Press)

"Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 national security bill"

Elson Tong (JD candidate)
17 Feb 2018

Hong Kong Free Press

“As long as we work on the basis of ‘loving the country and loving Hong Kong’, there will always be hope,” said the city’s outgoing Secretary for Security at a dinner in Wanchai’s Grand Hyatt, organised by various pro-Beijing trade unions. “But sometimes I see an unhealthy wind blowing across society. People mix up what is right and what is wrong, what is black and what is white. I even sense a Cultural Revolution-era mentality and language in some of the media.” The speech was not delivered in 2017 - but in the pivotal year of 2003...

     With these existing laws in mind, scholars such as Hong Kong University professor Johannes Chan are sceptical as to whether – by asking Hong Kong to “enact laws” – Article 23 really means that the government has to table a fresh bill.

     “We shouldn’t say that Hong Kong has failed to fulfil its constitutional duty under Article 23. We should ask whether existing laws already do so,” Chan told a conference last March...

     At the time, Regina Ip and Elsie Leung respectively led the Security Bureau and the Department of Justice. But Hong Kong University professor and prosecutor Simon Young told HKFP that colonial-era British officials, like solicitor-general Robert Allcock, were more involved as hands-on drafters for the bill. ... Click here to view the full article.

"Reviving Article 23 (Part II): Old wine in new bottles for Hong Kong’s national security debate"

Elson Tong (JD candidate)
18 Feb 2018
Hong Kong Free Press

In December 2017, Hong Kong’s pro-democracy lawmakers – who were six members short after some were ousted by the courts – fought a lost cause to prevent their pro-Beijing colleagues from changing the legislature’s house rules. Henceforth it would become much harder to filibuster controversial bills. ...

     Hong Kong University law professor Eric Cheung speculated that the motive for this document was to strip Hong Kong courts of their oversight of the arrangement. He added that Beijing may do the same thing to stop future Article 23 national security laws from being judged unconstitutional for any violations of protected rights and freedoms...

     Mainland constitutional law professor Fu Hualing told attendees that in pushing for a national security law, Beijing’s aim is now to suppress Hong Kong’s pro-independence movement.

     “The Falun Gong, for example, disappeared entirely from the field of debate,” he told HKFP. “I think Hong Kong will continue to be a foundation for activities within mainland China… like civil society development, working with NGOs.”...

     A national security bill only requires the support of a simple majority in the legislature to be voted into law. The pro-Beijing camp has always obtained over half of the seats. Therefore, few legislative obstacles exist to the passing of a law that would criminalise mere speech.

     However, Hong Kong University criminal law professor Simon Young told HKFP that the courts can refuse to enforce vague or otherwise unconstitutional laws.

    “The courts could say that the provision is so vague that it violates the principle of legal certainty… because it gives no indication to anyone what the law is, and you can’t regulate your conduct accordingly… But that rarely happens.”

    “The second thing that they can do is [to say] that there are provisions or aspects of the law that violate specific constitutional rights, whether it’s the freedom of expression or the presumption of innocence.” A judge would then either strike down the provision, or employ more lenient legal tests favouring the accused...

     His colleague Albert Chen told attendees at the December conference that under Article 17 of the Basic Law, the National People’s Congress Standing Committee (NPCSC) might invalidate a Hong Kong security law and ask for new legislation if it deems the provisions unsatisfactory...

     Click here to view the full article. 

New Book by Wilkinson, Cheung & Meggitt: Civil Procedure in Hong Kong (6th edition) (LexisNexis)

Civil Procedure in Hong Kong (6th edition)
Michael Wilkinson, Eric TM Cheung & Gary Meggitt
LexisNexis
December 2017,

Description: Civil Procedure in Hong Kong Sixth Edition provides practitioners with a clear and up to date exposition of the rules and judicial decisions governing the conduct of civil litigation in Hong Kong. The Civil Justice Reform has now been effective for more than 8 years and there are many judicial decisions reflecting judicial approaches and attitudes to the implementation of the new rules. The authors have chronicled these developments by reference to the considerable amount of case law on the new rules and practice directions.

     This sixth edition includes the most significant new cases affecting both the new rules and rules unaffected by the Reforms, including:

• The use of translated documents in proceedings vide case development on High Court Civil Procedure (Use of Language) Rules r 5(5)(a)

• Rules on service and forum in lieu with Hong Kong’s role in a developing global economy

• Updates to procedural rules since previous edition eg vide L.N. 175 of 2015, L.N. 3 of 2016

Court Commends HKU Clinical Legal Education Centre in False Representation Case

The HKU Clinical Legal Education (CLE) Centre recently helped a client win his magistracy appeal (HCMA 259/2016) in the High Court on a charge of making a false statement. HKU's Communication and Public Affairs Office summarised the news reports as follows:

A man who had been convicted of making a false statement knowingly in an application for public housing was acquitted with the help of the Free Legal Advice Scheme on HKU Campus. HKU Law Principal Lecturer Mr Eric Cheung represented the man in court and argued that the man’s $1,440 income for two days’ part-time work should not be counted as part of his “current monthly salary”. The government’s Legal Aid Department had rejected the man’s legal aid application which was only granted after the scheme’s intervention. The judge commended the scheme, saying it had helped to clarify the rights and wrongs of the case for justice to be done. (Apple Daily, Ming Pao)​

HKU Legal Scholarship Blog interviewed Eric Cheung, director of the centre, about the case, which he argued in court.

1. What was the main issue in the case? 

Client was charged with having "knowingly made false statement on 2 Feb 2010 in respect of an application for a lease under the Housing Ordinance (or, in layman's terms, in his application for public housing) by declaring that his average monthly income was $12,830". The prosecution case was that apart from his fixed salary earned for that amount, he had also earned $1,440 while working as a part-time employee for RTHK on 21 and 26 Nov 2009 at a rate of $80 per hour, with payment made to him by bank transfer from RTHK into his bank account on 5 Jan 2010, but he did not declare the same. D's case at trial was that he did not know that the payment from RTHK was received on 5 Jan 2010 because he had not checked his passbook, and he did not realise at that time that he had to declare such payment as his current monthly income. The Magistrate disbelieved him and found that he had knowledge of such payment but knowingly concealed the same when declaring his monthly income as $12,830. The grounds of appeal were that: 1. What he made was not a false statement because this one-off income from RTHK in the past was not his current monthly income, as the evidence at trial showed that he no longer expected to do any further part-time work for RTHK since 26 Nov, and in particular after he had found a full-time job on 5 Dec 2009. 2. The Magistrate erred in finding that he knew that he had to declare the RTHK income and/or knew that he did receive the same on 5 Jan 2010.

2. How did the centre assist the client and court on the legal point? 

D's application for legal aid was initially refused for not passing the merits test. He sought legal advice from us under our FLAS scheme. With assistance from our students on research etc, we took the view that there was merits in the appeal, and we wrote to Department of Legal Aid (DLA) accordingly. Eventually, legal aid was granted and I was assigned by DLA to represent him. 

3.  Who was the judge and what did he say?

It is before Deputy Judge Anthony Kwok. He allowed the appeal on my first ground, and decided that he did not need to deal with the second ground. He commended the scheme (see the above press summary). One interesting point is that the Acting Senior Public Prosecutor (Ivan Cheung) representing the Respondent is our past CLE student. He also said in open court that he found the CLE course very meaningful.

4. How do you feel about the centre's involvement in this case? 

Very pleased to help rectify another miscarriage of justice. Very moved when I saw D's wife crying with relief and joy after the appeal was allowed. She said they had been under great emotional stress over the year (N.B. If the appeal failed, they were likely be evicted from the public housing). See also a comment I received from a first-year law student who attended the hearing:

"Thanks for your real-life teaching today and I really enjoyed it. I have witnessed how the judge changed his mind after hearing what you have got and looking at the evidence in detail. I realize how important to get well-prepared beforehand because you always have to be alert in court and point out inaccuracies in information that the judge and the prosecuting counsel have in mind. And most importantly, it's really a kind of special fulfillment that you can hardly find in doing commercial work when it comes to helping with the clients to fight against injustice. The clients were very emotional after the judgment and it touched me. That's what I have learnt from you and I like working as a barrister like you (though you are technically a solicitor).​"

HKU Law Faculty Members Comment on the Recent Jailing of Hong Kong Protesters

"Judiciary in the dock: jailing of student activists opens door to debate"

Julia Hollingsworth and Chris Lau
South China Morning Post
25 August 2017

On the night of September 26, 2014, amid the glare of television cameras and floodlights, student leader Joshua Wong Chi-fung leapt onto a fence around ­government headquarters in ­Admiralty.

     As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow ­student leader Alex Chow Yong-kang, galvanised others into ­action...

     Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.

     The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s ­independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics...

     The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said. “This is natural. You see it in other societies,” he said...

     But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.

     Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role...

     His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers...

"Is Hong Kong's Rule of Law Really Under Threat?"

Cliff Buddle

South China Morning Post

27 August 2017

The jailing of three prominent student leaders involved in Hong Kong’s Occupy protests has sparked a crisis of confidence in the city’s legal system and rule of law...

     University of Hong Kong law professor Simon Young said there should be more transparency in situations where the secretary for justice overrules senior prosecutors. In Canada, he said, there is a legal requirement that public notice be given when the Attorney General takes over control of a prosecution from the DPP. “It tells everyone I am intervening here, I am taking over. That will naturally have possible political implications and can attract the scrutiny of parliament. At least there is transparency. We don’t have that here,” Young added...

"Hong Kong justice chief defends jailing of democracy activists; slams claims of political persecution"

Catherine Lai

Hong Kong Free Press

24 August 2017

Hong Kong’s justice secretary has defending the jailing of three democracy activists, slamming claims that it amounted to political persecution...

Law professor Johannes Chan said during a Commercial Radio programme in response to Yuen’s comments that he accepted his explanation for the timing of the review, but Yuen should explain in detail whether the DOJ’s decision to review the sentences were mixed with considerations outside of legal ones – in order to dispel citizen’s concerns.

     In a column on Wednesday, Chan said that the first magistrate’s decision to hand down a lenient sentence, as well as the Court of Appeal’s decision to give a deterrent sentence, were both within the judiciary’s scope of discretion.

    “Even if we don’t agree with the Court of Appeal’s final judgement, it should not influence our belief in the judiciary’s independence,” he wrote...

See also KC Ng, "Law scholar urges Hong Kong justice minister to come clean on process that led to jail time for pro-democracy activists", SCMP, 24 Aug 2017; Michael Davis, "With Hong Kong's young faces of democracy in jail, is civil society being put in chains?", SCMP, 23 Aug 2017;  "Legal scholars hit out at Hong Kong's jailing of three democracy activists", Radio Free Asia, 18 Aug 2017; J Siu & T Cheung, "Lawyers confident three jailed Hong Kong student protesters will receive leave to appeal against prison terms", SCMP, 19 Aug 2017.

HKU Law Faculty Members Comment on Hong Kong's High Speed Railway Joint Checkpoint Issue

"Looking at the legal issues in the checkpoint 'co-location' plan impartially, rationally and practically"

Albert Chen

Ming Pao

1 Aug 2017

The HKSAR Government announced on Tuesday (25 July 2017) the plan for the “co-location” of customs, immigration and quarantine clearance (“CIQ”) arrangements at the West Kowloon station of the Express Rail Link to Shenzhen and Guangzhou. It has aroused heated debates in the community, including many criticisms and objections from the political and legal circles. I believe that we should not over-politicize the relevant issues, but should consider and discuss the matters in a manner that is impartial, rational and practical, so that the public can comprehensively and objectively understand the nature of the co-location plan in the West Kowloon Station.

     It must be pointed out that convenience for passengers is the sole objective of the co-location plan, which is to enable passengers to go through the CIQ clearance procedures with less time and more expedience. In other words, after passing the checkpoints in the West Kowloon Station, passengers from Hong Kong can go to all destinations in the Mainland without the need to go through any clearance procedure in the mainland. Conversely, passengers from the Mainland can undergo CIQ procedures only after they arrive in Hong Kong, without any clearance procedure in any Mainland city. Thus, the co-location plan is not designed for the purpose of expanding the jurisdiction of the Mainland authorities, or to extend the reach of Mainland laws in Hong Kong... Click here to read the full article in Chinese.  

Section 39 of the Public Order Ordinance gives Mainland law enforcement officers a limited degree of powers with necessary force to arrest and detain the Mainland's wanted persons for repartition inside trains and within the “immigration area on the Mainland side”. In order to tackle the so-called security loopholes, there is no need to fully implement Mainland laws or to remove the jurisdiction of Hong Kong... Click here to read the full post in Chinese on Eric Cheung's Facebook page.

For other articles and coverage, see Ming Pao (Johannes Chan), The Standard, Hong Kong Free Press, RTHK, South China Morning Post, Reuters, and New York Times.  Translations by Isabella Liu.

HKU Law Faculty Members Comment on the Disqualification of Four Hong Kong Legislators

Cheng Chan Lan Yue Professor in Constitutional Law, Professor Albert Chen, write an article published in Ming Pao on 18 July 2017 calling for discretionary treatment on issues of legal costs and disgorgement of salaries and benefits in respect of the four legislators who were recently disqualified for failing properly to take their oath of office.

On 14 July, the Court of First Instance of the High Court of Hong Kong decided the case brought by the government questioning the qualification of four members of the Legislative Council (LegCo), for they declining or neglecting to take the LegCo Oath. The court ruled that the four members failed to meet the statutory requirements of the oath taking before assume office of the LegCo.

     It is noteworthy that, although this case and Leung and Yau’s case in last year are both about the oath taking and disqualification of membership, the legal bases the court rules upon in the two proceedings are not the same.

     In the case of Leung and Yau, the Honourable Justice Au, Judge of the Court of First Instance of the High Court, points out that even if the court does not refer to the Interpretation made by the Standing Committee of the National People's Congress in November last year (NPCSC Interpretation), the two members should still be disqualified for their denial of oath according to Hong Kong local laws (such as the Oaths and Declarations Ordinance and the relevant provisions of the Basic Law). The main issue is not whether the words and deeds of the two members constitute a denial of oath, the focus of the debate lies in whether the court has the power and should intervene in the "internal business" of the LegCo or the decision made by the President of the LegCo is amenable to judicial review.

     However, in the present judgment concerning the four LegCo members, the same Honourable Justice Au, grounds the ruling on the NPCSC Interpretation and precedents of other Hong Kong courts, as well as the Basic Law and local ordinance. From the judgment, we can see that the NPCSC Interpretation made in last November is one of the important legal bases of the decision. The ruling has also dealt with the legal issues about the retrospective effect of the NPCSC Interpretation and when should it come into force... Click here to read the article in full in Chinese.  Professor Chen was also interviewed in Cantonese on Cable TV news, click here to view.

"More Hong Kong pan-democrats in 'highly risky' position after ouster of four lawmakers: experts"

Kimmy Chung, Ng Kang-chung, Ajay Singh

South China Morning Post

18 July 2017

Legal experts warn that more Hong Kong pan-democratic lawmakers face the same fate as their six colleagues barred over improper oath-taking in the Legislative Council. One legal scholar has even proposed allowing a judge to ­administer oath-taking to avoid similar troubles in future.  At least nine more lawmakers who shouted political slogans or tore up documents during their swearing-in last October may be in a “highly risky” position.

     These lawmakers are currently facing, or have faced judicial reviews: Raymond Chan Chi-chuen of People Power, Cheng Chung-tai of Civic Passion, non-affiliated localist Shiu Ka-chun, social activist Eddie Chu Hoi-dick, Democrats Andrew Wan Siu-kin, Lam Cheuk-ting, Helena Wong Pik-wan, and Roy Kwong Chun-yu, and the Labour Party’s Dr Fernando Cheung Chiu-hung.

...

     Professor Simon Young, of the faculty of law at the University of Hong Kong, said: “All of [the nine pan-democrats] are liable to be unseated because their oath-taking lacked sufficient ­sincerity or solemnity or was ­otherwise defective in form.

     “This is the consequence of the ­judgment. We must now seriously ­consider whether the system should be reformed such that High Court judges will administer oaths directly.”

     However, Albert Chen Hung-yee, a member of the Basic Law Committee, did not believe a judge was needed for such a task...  Click here to read the full article.

"Hong Kong lawmakers disqualification ruling 'opens huge floodgate', lawyers say"

Chris Lau, Julia Hollingsworth, Tony Cheung

South China Morning Post

15 July 2017

The far-reaching judgment disqualifying four lawmakers from Hong Kong’s legislature strongly leaned on Beijing’s interpretation of the oath-taking rules and has “changed the rules of the game” in the Legislative Council, lawyers said.er

     In unseating the lawmakers on Friday, Mr Justice Thomas Au Hing-cheung extended the scope of the rules governing swearing-in ceremonies to include statements made before and after legislators’ oaths, meaning their pledges could now be deemed invalid even if they read the oath itself correctly.

     Previously, the rules had only been applied to the oath itself – not statements made either side of it, University of Hong Kong principal law lecturer Eric Cheung Tat-ming said.

     “It changes the rules of the game,” he said... Click here to read the full article.

Karen Kong and Eric Cheung Cited in Story on Hong Kong's "King of Judicial Review" (HKFP)

"Lone fighter: Meet the Cheung Chau resident who has spent a decade battling the Hong Kong gov’t in court"

Ellie Ng

Hong Kong Free Press

5 February 2017

Trying to hold the government to account in court almost always guarantees a David and Goliath scenario: the government has unlimited resources to fight legal battles, while civilians seeking to rectify injustices face systemic obstacles at every step of the judicial process. 

     But in Hong Kong, one man is unfazed by the challenge. Cheung Chau resident Kwok Cheuk-kin – widely known as the “king of judicial review” – has taken the government to court more than 20 times over the past decade, though he has only won once. The talkative 78-year-old may look like an unassuming elderly retiree, but he is a familiar figure to those on the judicial scene. When Kwok posed for pictures in front of the High Court during our interview, several security guards gave him a nod and a smile... Click here to read the full article.

Eric Cheung on Joint Enterprise Murder in Hong Kong (CCPL Occasional Paper)

"The Dichotomy Between Foresight and Intention in Joint Enterprise Murder: Should our Top Court Depart from Chan Wing Siu and Sze Kwan Lung?"

Eric TM Cheung
CCPL Occasional Paper No. 28
October 2016

Abstract: Since 21 June 1984, Hong Kong courts have faithfully followed the Privy Council decision in Chan Wing Siu (which was adopted by our Court of Final Appeal in Sze Kwan Lung after the handover) to hold a secondary party liable for joint enterprise murder based on his participation with foresight of a real risk of his co-adverturer inflicting grievous bodily harm on the deceased victim, even if he did not so intend. On 18 February 2016, the UK Supreme Court and Privy Council held in Jogee that the common law took a “wrong turn” in Chan Wing Siu by equating foresight with intent rather than treating foresight as evidence of intent. This landmark decision has prompted our top court to grant leave to appeal on 17 May 2016 in Chan Kam Shing to re-examine the Chan Wing Siu doctrine of extended joint enterprise. While pending the appeal hearing, there is yet another interesting development in that the High Court of Australia decided on 24 August 2016 in Miller not to follow Jogee but affirmed Chan Wing Siu. With the help of volunteer law students, a comprehensive survey of our appellate court decisions (both reported and unreported) before and after Chan Wing Siu on joint criminal enterprise resulting in the victim’s death has been done. This paper traces the relevant history of development of the doctrine of extended criminal joint enterprise in Hong Kong and concludes that our top Court should now depart from Chan Wing Siu and Sze Kwan Lung and reinstate the mens rea requirement of intention instead of foresight for joint enterprise murder.  Click here to download the full paper.

Discussion: Legal Quagmire and the Hong Kong Independence Issue (Video Available)

Legal Quagmire: Who is in Violation of the Law – Independence Advocates or Those who seek to have Them Barred from Standing for Election?

Wednesday 31st August 2016, 14:00-16:30 

Large Moot Court, 2/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong

Talk of the independence of Hong Kong from the People's Republic of China has triggered much discussion within the community as to the propriety and legality of such advocacy and the pursuit of independence and self-determination in Hong Kong. Two days prior to the commencement of the nomination period for candidates of the 2016 election to the Legislative Council, the Electoral Affairs Commission (EAC) announced the introduction of an additional eligibility criteria for nomination of candidates: the 'Confirmation Form', which stressed candidates' acceptance of Article 1 of the Hong Kong Basic Law on the inalienability of Hong Kong from China. Much legal debate has surrounded both the legality and legitimacy of the form itself, its enforceability, and the equality of treatment accorded to candidates who had or had not completed the form, among other questions. Critics have labelled the move as an attempt to suppress the pro-independence movement, prompting speculation as to the government's next steps to curb such calls, seen by Beijing loyalists and officials as fanning the flames of secession.

      More recently, the desire to prevent such a discourse from taking hold in Hong Kong's educational establishments, has led to the Education Bureau issuing a stern warning to teachers to ensure that they do not 'advocate' independence in schools and to urge them to responsibly 'tutor' students so that they can develop an 'appropriate' understanding and view of the topic. 

      This has thrown up numerous questions about the propriety and legality of discussing the independence of Hong Kong in various spheres and capacities in light of the rights to freedom of expression, freedom of assembly, political participation and the prospects for the application of China's national security legislation in Hong Kong. 

       This interactive discussion which took place on 31 August 2016 was aimed at engaging students and encouraging the development of critical thinking skills. Through a moderated discussion among expert panellists, led by a fellow student, followed by questions from the audience, the discussion led students through the process of assessing the validity of various arguments to help better understand the different points of view emerging in this ongoing debate.

Opening Remarks: Puja Kapai, CCPL Director and Associate Professor, Faculty of Law, HKU
Moderator: Brian Fan, Final Year, LLB Student, Faculty of Law, HKU
Speakers:

• Simon NM Young, Professor and Associate Dean (Research), Faculty of Law, HKU
• Benny Tai, Associate Professor, Faculty of Law, HKU
• Eric Cheung, Principal Lecturer and Director of Clinical Legal Education, Faculty of Law, HKU
• Carole Petersen, Professor and Director, Spark M. Matsunaga Institute for Peace and Conflict Resolution, School of Law, University of Hawaii
• Michael Davis, Senior Fellow, CCPL, Faculty of Law, HKU

Eric Cheung and HKU Legal Clinic Helps to Free Police Informant (SCMP)

"Police informant incorrectly jailed for 33 months walks free"
Chris Lau
South China Morning Post
5 September 2016

“A” was a police informant and, more importantly, a free man before he was framed by the very person he was instructed to spy on by authorities. After serving 33 months behind bars for a crime he did not commit, A has finally been released thanks to the solicitor advocates’ scheme and the efforts of University of Hong Kong legal scholar Eric Cheung Tat-ming.

     A, whose identity could not be revealed for safety reasons, was arrested in 2012 for conspiring with Lam Hing to rob four people on various occasions in 2011. He was supposed to be spying on Lam for the police. But after Lam was arrested and pleaded guilty, the burglar then turned around and counter-accused A of being his accomplice.

     A was found guilty and received an eight-and-a-half-year jail term for his involvement in the crimes. Lam received five years. Cheung, a principal lecturer at HKU who obtained the higher rights of audience in 2013, said the inmate came to the university’s free legal advice scheme after failing to secure funds to appeal his case from the Legal Aid Department where he was turned down for a lack of merit.

      “But there is a huge non-disclosure problem,” Cheung said, recalling the moment he took the case. After changing the department’s mind, Cheung decided to represent the innocent man in the Court of Appeal last year... Click here to read the full article.

HKU Law Faculty Comment on the Invalidation of Pro-Independence Candidates

"Hong Kong Restricts Election Candidates, Renewing Fears of Lost Rights"

Austin Ramzy and Alan Wong
The New York Times
3 August 2016

Moves by the government of Hong Kong to bar candidates from a coming legislative election over the issue of independence from China have raised worries in this semiautonomous city about the deterioration of political freedom and the potential for renewed conflict with Beijing.

     Since Saturday, Hong Kong election officers have blocked at least five candidates from the balloting, on Sept. 4, for seats on the city’s Legislative Council over questions about whether they acknowledge the city as an “inalienable part” of China.

     The disqualified candidates are mostly young people who became politically active during the Umbrella Movement protests in 2014, when demonstrators shut down several thoroughfares for more than two months to push for greater choice in elections for chief executive, the top political office in the city.

     The protests failed to elicit any concessions from the government. But they helped fan a “localist” movement, as it is often called, of activists seeking to strengthen Hong Kong’s identity in the face of growing cultural, linguistic and economic influence from mainland China.

     Edward Leung, who said he learned he was barred as a candidate on Tuesday, is a leader of the group Hong Kong Indigenous, which has proposed holding a referendum on whether Hong Kong should become independent...

     His ability to run in February but not in September has raised questions about why the government changed its mind. Some legal scholars and politicians have criticized the decision to strike candidates from the ballot, calling it bureaucratic overreach and an infringement on political freedoms.

     If a candidate is suspected of having made a false declaration, then that should be investigated by law enforcement, said Eric Cheung, a law lecturer at the University of Hong Kong.

     “This is not rule of law, it is rule of man,” he said. “You should never give such power to a particular civil servant, then have the civil servant bypass the procedures.”... Click here to read the full article.

"Law experts question EAC move to bar pro-independence bet"

Hong Kong Economic Journal

3 August 2016

Several law experts said Edward Leung Tin-kei (梁天琦), a prominent member of the localist group Hong Kong Indigenous, should not be deprived of his right to run in the Legislative Council election next month since he has met the new requirement set by the Electoral Affairs Commission (EAC) for candidates, the Hong Kong Economic Journal reports.

      Johannes Chan Man-mun, former law dean and now a law professor at the University of Hong Kong, told HKEJ that an electoral officer has no right to make her own judgment and question Leung’s stance after he signed a new confirmation form committing him to uphold the Basic Law and accept Beijing’s sovereignty over Hong Kong.

     In the first place, Chan said, the new requirement has no legal basis and Leung was not given a chance to defend himself before his disqualification.

     Chan said the electoral officer, in barring Leung from the Legco race, might have violated the Basic law, Hong Kong’s mini-constitution.

     Eric Cheung Tat-ming, principal lecturer at the HKU Department of Law, agreed with Chan, saying electoral officers should base their decision only on whether or not a candidate has fulfilled all the requirements for running in the election.

     A source in the government said returning officers base their decision not only on whether candidates have signed the new confirmation form but also on their words and actions in the past... Click here to read the full article.

Law Faculty Members Featured in HKU's Bulletin (May 2016)

This month's HKU Bulletin magazine (May 2016, Vol. 17, No. 2) features the accomplishments of several Faculty of Law colleagues: Douglas Arner (Cover Story, pp 8/9), Puja Kapai (Research, pp 32/33), Rick Glofcheski (Teaching and Learning, pp 40/41) and Eric Cheung and his team (Knowledge Exchange, pp 50/51).  Click here to read the latest issue of the Bulletin.  Congratulations to all of them.

HKU Clinical Legal Education Centre Helps Another Realise Justice in Hong Kong's Court of Final Appeal

Gill Singh has worked in the insurance industry since the mid 1970s.  In late 2006, he met his former colleague and friend, Mr Wong, to discuss future opportunities.  Wong was the Chief Executive Officer of Dah Sing, an insurance company.  Eventually Singh was appointed a senior district manager of Dah Sing in January 2007. However, things did not go as well as expected and he was terminated in August the same year.  

      The insurance company then sued Singh in the District Court to try to recover back a $150,000 sign-on fee and two monthly allowances of $50,000 each.  The contract which Singh signed stated that the sign-on fee was repayable in full if Singh was terminated within three years of his appointment.  However it did not say anything about recovering monthly allowances that were paid.  With the assistance of legal aid, Singh counterclaimed for losses he suffered as a result of the company's failure to report his termination to the Insurance Agents Registration Board (IARB); he could not work for another insurance company as a technical representative or insurance agent until such termination had been registered.  He also counterclaimed for losses arising from the company's failure to report his continuing professional development (CPD) certificate to the  IARB, thereby resulting in his suspension from registration as an insurance agent for three months.  The company argued that it was not in breach of any duty owed to Singh and there was no right of action under the law for any of these breaches.

     On 18 May 2012, the District Court ruled in Singh's favour and held that the two months of paid monthly allowances were not recoverable and that Singh was entitled to damages for the company's breaches of duty in respect of the non-reporting to IARB of Singh's termination and his CPD certificate.  But the company appealed to the Court of Appeal, and on 23 December 2013 the Court of Appeal reversed the District Court's decision.  The Court of Appeal found that the legislation did not create a private right of action for the alleged breaches and the company did not owe a duty of care to Singh.  It also found that even if there was a breach, Singh did not suffer any losses.  After being advised by senior counsel that there was no merit in an appeal, it seemed like this was the end of the road for Singh.

      It was at this point that the HKU Clinical Legal Education Centre became involved when Singh made an appointment to seek legal advice from the Centre.  After an initial meeting in January 2014 with the two law students assigned to the case, Phoebe Suen (then Gov't & Laws 5) and Joel Lee (then LLB 3), the two students diligently researched and prepared a 17-page memo pointing out the likely errors of the Court of Appeal for the advising lawyer, Eric Cheung, principal lecturer and director of clinical legal education.  Cheung read the memo and immediately thought there was a case to take up to the Court of Final Appeal (CFA).  To confirm his beliefs, he sought the advice of the tort law experts in the Faculty of Law.  Eventually, after advising the client and obtaining his instructions, Cheung wrote to the Legal Aid Department and convinced them to change their decision and to fund the appeal to the apex court.  At this stage, Audrey Eu SC leading Kelvin Leung, took over the case but with the continued assistance of various law students up until the case was argued before the CFA in February 2016.  

     On 31 March 2016, the CFA unanimously allowed Singh's appeal and restored the District Court's decision (Dah Sing Insurance Services Limited v Gill Gurbux Singh, FACV18/2015).  Writing for the Court, Mr Justice Tang held that the company had a common law duty of care to make timely reports of termination and CPD certificates to the IARB so as to avoid foreseeable loss to representatives and agents like Singh.  The duties were found in the Code of Practice for the Administration of Insurance Agents.  The decision is an important precedent on the tort liability of insurance companies to their agents and representatives in respect of duties under the Code of Practice.

      This was not the first time for a client of the HKU Clinical Legal Education Centre to win a case in the CFA.  In October 2015, the CFA allowed the appeal in HKSAR v Law Yat Ting [2015] HKCFA 71, a case concerned with whether closing a car door constituted tampering with a motor vehicle.  The injustice had been so obvious that the Department of Justice conceded the appeal and the CFA decided the matter without an oral hearing.

HKU Law Faculty Members Comment on the Hong Kong National Party Controversy

"Young Hong Kong National Party radicals test limits of legal freedoms"

Tony Cheung
South China Morning Post
1 April 2016

Hong Kong National Party, the new kid on the radical block, is igniting debate on whether an extreme party that rejects the Basic Law and wants to turn Hong Kong into an independent republic can exist legally.

      While it is not the first group to advocate independence, it is at the extreme end of the localism movement as it has not only refused to recognise the Basic Law, the city’s mini-constitution, it has pledged to use “whatever means available” for Hong Kong to break away from the mainland.

     Can such a party exist in Hong Kong, a special administrative region of China, and can a Hong Kong citizen advocate independence without facing legal repercussions are among the questions that have sparked divided views.

     While some argued advocating independence without taking any action was part of freedom of speech, last night Beijing’s liaison office chief Zhang Xiaoming disagreed with such a stance. In an interview with Phoenix TV, he said the founding of the new party “went beyond the realm of the freedom of expression ... and must not be tolerated”...

      University of Hong Kong principal law lecturer Eric Cheung Tat-ming warned that the ordinance must not be interpreted without taking into account various other legislation, including the Basic Law and the Hong Kong Bill of Rights, that protect freedoms. “Those provisions in the Crimes Ordinance were outdated ... and their legality and constitutionality were in question,” Cheung told the Post.

      Former HKU law dean Johannes Chan Man-mun also said it was impossible to prosecute someone for advocating independence without action.

      Without further elaborating, HKU law professor Albert Chen Hung-yee said the provision about sedition “might not be applicable to the current situation”, but lawyer Maggie Chan Man-ki disagreed and said: “It is irresponsible to rule out the possibility of any legal liability ... because even the Bill of Rights says the exercise of [civic liberties] should not affect national security.”

       Former security minister Regina Ip Lau Suk-yee warned that while words did not constitute a crime, the party could be prosecuted when it organised activities to achieve its goals.

      While the Societies Ordinance is another law that could deal with acts that threaten national security, it is unlikely that the new party has applied to be registered as one, as most political groups are registered as companies.

      The party’s spokesman had said they had been advised by a third party that they might not be able to register under the Companies Registry. The registry told the Post it would not comment on individual cases.

      HKU law professor Simon Young told the Post that the party’s company registration depended on “whether ... seeking the independence of Hong Kong [peacefully] can be said to be not a lawful purpose”.

      He also said that under the Societies Ordinance, “it is hard to see how prohibiting the group would be necessary for national security ... [if] the party only seeks to discuss the possibility of independence and to achieve” it by peaceful means... Click here to read the full article.

"Independence stone dead in water"
The Standard
1 April 2016

A former Occupy Central activist has launched Hong Kong National Party to push for independence.

     However, that's akin to throwing a pebble in the water - after creating a few ripples, the stone sinks. Independence can never be a serious issue for people here.

     Obviously, some radicals are doing everything they can to anger Beijing ahead of the Legislative Council election in September, knowing that the communists are extraordinarily sensitive about the term "independence."

     However, Beijing's reaction has been surprisingly restrained. Instead, Xinhua News Agency spared just about 200 characters to denounce the move as harmful to national sovereignty and security...

      University of Hong Kong law professor Johannes Chan Man-mun said the SAR enjoys freedom of speech, and nobody should be prosecuted simply for speaking their minds - unless one crosses the line to commit illegal acts, including the use of force... Click here to read full article.

"Talk of independence could hasten passage of Article 23 security law, HKU law prof warns"

Hermina Wong

Hong Kong Free Press

31 March 2016

Talk of independence for Hong Kong could bring forward legislation to enact Article 23, the security law targeting subversion and sedition which was abandoned in the face of mass opposition in 2003, University of Hong Kong law Professor Eric Cheung Tat-ming said on Thursday. He added that he was worried that such discussions could touch a nerve in the central government.

     Regarding the newly-established, pro-independence Hong Kong National Party, Cheung said that their stance may not conform to the Constitution of China and the Basic Law, but the suggestion that it severely endangers the country is an exaggeration, according to a report by RTHK. Cheung said: “It’s the same as you suggesting that ‘defeat the Communist Party’ is against the Constitution of China, but this does not mean that people who voiced this kind of opinion have broken the law. The Basic Law and Bill of Rights protect freedom of speech.”... Click here to read the full article.

"Discussion of Hong Kong's independence do not violate the Basic Law"

RTHK Podcasts

31 March 2016

Law Professor Simon Young from the University of Hong Kong says simply discussing independence for Hong Kong would not violate the Basic Law. He says the police have powers to deal with people who undermine national security, public order or public safety. But he tells Jim Gould that if the independence-leaning Hong Kong National Party pursues its objectives through lawful means, it is quite questionable whether those powers could be used against it.  Click here to listen.

Eric Cheung Comments on Hong Kong Suit Against Chinese Mayor of Jinan (SCMP)

"China Shanshui Cement subsidiaries sue mainland Chinese mayor and deputy for conspiracy in Hong Kong court"
Chris Lau and Sijia Jiang
South China Morning Post
8 March 2016

The mayor of Jinan (濟南) and his deputy from the northern province of Shandong (山東) have been sued in a Hong Kong court over an alleged conspiracy relating to ­assets belonging to the subsidiaries of a debt-laden mainland ­cement company. But the lack of local ties from the parties might suggest the rare case could end up being a publicity stunt rather than a legitimate legal battle.

     China Pioneer Cement (Hong Kong) Company and Shandong Shanshui Cement Group Company – subsidiaries of the Hong Kong-listed China Shanshui ­Cement Group – are suing Jinan mayor Yang Luyu and his deputy Su Shuwei over an alleged conspiracy with their former directors, according to a court writ filed on Friday.

     This essentially means that the plaintiffs are suing two mainland officials for allegations which took place on the mainland. One of the plaintiffs, Shandong Cement, is also a company incorporated across the border.

     This raised questions as to how court documents could be served and court decisions enforced across two jurisdictions, a lawyer and legal scholar noted...

     But in this case, the documents would have to be served to mainland residents.

     University of Hong Kong legal scholar Eric Cheung Tat-ming said the plaintiffs could either use an official channel, via the Hong Kong courts or assign their own mainland lawyers.

     The former, as stated in the Basic Law, involves the plaintiffs handing the documents over to the Hong Kong courts, which would then pass them to mainland courts for service .

     Cheung, who said the system was reliable, added: “I am not sure whether it would be another story serving [documents] to a mayor.”

     Cheung also said the plaintiffs had first to satisfy the local courts under High Court rules, before ­accessing the channel... Click here to read the full article.

HKU Legal Clinic Helps 71-Year-Old Defendant Win His Appeal in Occupy Youth Assault Case (HKEJ)

"HKU Law Lecturer Wins Reversal of Occupy Assault Conviction"
HKEJ
2 March 2016

A 71-year-old man accused of attacking a student activist during the Occupy Movement in 2014, walked free on Tuesday after the High Court overturned his earlier conviction, Apple Daily reports.

     Man Ho-chun received free legal assistance from the Department of Law of the University of Hong Kong, where the pro-democracy protests to which he was opposed ironically started.

     Man had been charged with common assault after he allegedly attacked the 19-year-old student, surnamed Chan, forcibly removing his yellow ribbon – a symbol of the protest movement – and stabbing his neck with his fingers outside the Bank of China Tower in Admiralty on Oct. 13, 2014.

    Last year a magistrates’ court found him guilty and sentenced him to seven days in jail, although he was granted bail.

     Refusing to accept the ruling, Man decided to appeal and asked for help from the HKU Law Department under its free legal advice scheme.

     He was introduced to Eric Cheung Tat-ming, principal lecturer at the department, who promised to assist him in filing an appeal before the High Court free of charge.

     At the hearing, Cheung told Judge Mrs. Justice Judianna Barnes that the lower court failed to take into consideration Man’s testimony as well as the time, place and other facts of the case, Ming Pao Daily reports.

     Cheung noted that the student did not report the case to the police, athough he claimed the injury was serious and troubled him for days.

     He also said the plaintiff used as evidence a picture purportedly showing Man attacking the teenager, but did not present any witness to attest to the photo’s authenticity.

     The judge agreed that the student did not report to the police immediately after the alleged attack and the authenticity of the online photos provided by Chan had never been verified, thus rendering the previous ruling questionable.

     The judge then overturned the earlier decision and said Man could get a refund of the litigation fee. Man thanked Cheung for helping him clear his name.

     Cheung said HKU’s free legal advice scheme is available for all people regardless of their political persuasion or religious belief.  The HKU Clinical Legal Education Progamme was awarded the Faculty Knowledge Exchange Award 2015.