New Issue of Hong Kong Law Journal (Vol. 52, Part 2 of 2022)

                                         HONG KONG LAW JOURNAL

Vol. 52, Part 2 of 2022

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

 

Analysis

Combatting Intimate Image Abuse in Hong Kong 

Thomas Crofts... 405

Lecture

Words to Law Students, Lawyers and the Public 

Kemal Bokhary... 431

Articles

Judge Unanimity: Can a Panel of Judges Constituted under theNational Security Law Return a Majority Verdict? 

Danian A. Wan and Trevor T. W. Wan... 439

The Hong Kong National Security Law (NSL) has introduced into Hong Kong’s crim-inal justice system a novel method of trial in the Court of First Instance for cases involving offences endangering national security. Article 46(1) of the NSL empow-ers the Secretary for Justice to, under specified circumstances, issue a certificate directing the case to be tried by a panel of three judges instead of a jury. However, the NSL does not make clear the threshold required for the panel of three judges to return an effective verdict — whether unanimity is called for or whether a majority verdict is available to convict the accused. This article engages this question by un-dertaking an interpretive analysis of the relevant provisions to ascertain a legally defensible answer. It argues that the common law principle of jury unanimity, originating from twelfth-century English law and preserved as part of the Hong Kong common law, supplements the NSL and provides solid support for unanimity as the correct legal position. The same conclusion can also be reached by constru-ing different provisions of the NSL as a coherent whole in tandem with other con-stitutional and statutory instruments including the Basic Law and the Hong Kong Bill of Rights.

Departure from International Human Rights Law and Comparative Best Practice: HKSAR v Tong Ying Kit  

Yan-ho Lai and Thomas E. Kellogg... 465

Reshaping the Stock Market to Accommodate Chinese BusinessGiants: The Reintroduction of Weighted Voting Shares in Hong Kong  

Fa Chen ... 487

Competition Law: An Exception to Human Rights? 

Stephen Crosswell... 513

Legal Convergence in the Greater Bay Area through Liberalisation of the Legal Services Market and Cooperation in Dispute Resolution Services  

Yun Zhao and Hui Chen... 555

This article analyses the process and implications of legal convergence in the Greater Bay Area (GBA). Existing models for legal convergence are not directly ap-plicable to the GBA, due to operation of the “one country, two systems” principle. This article, therefore, explores pathways to legal convergence from the perspec-tives of promoting diversified dispute resolution and resolving inter-regional legal conflicts across three jurisdictions. It argues that an innovative legislation mecha-nism should be introduced to address inter-regional legal conflicts, amend arbitra-tion rules and clarify ambiguous provisions in existing cooperative agreements. In addition, it is recommended that legal service resources across the GBA be consoli-dated with cooperation mechanisms and establishment of an international arbi-tration centre and that GBA governments support further liberalisation of the legal services market and strengthen cooperation between arbitration institutions.

Case Studies of Securities Fraud in the VietnameseSecurities Market  

Toan Minh Le, Gordon Walker, Ha Hai Duong, and Trang Huu Tran... 583

China Law

“Visit Your Parents”: How Chinese Courts Apply the Elderly 

Law Luxue Yu... 615

Judicial Regulation of Standard Form Contracts in China 

Yuxuan Wang... 641

Extraterritorial Aspects of the Fundamental Rights Articlesin the Constitution of China 

Liang Yu and Fons Coomans... 683

Dancing in Chains: Reassessing China’s Foreign InvestmentLegislation (Part I) 

Li Yang, Hui Pang and Charlie Xiao-chuan Weng... 709

Force Majeure under Chinese Law as Applied to Port TerminalOperations 

Haifan Yang and Ling Zhu... 731

Valuation Adjustment Mechanism in China: A Risk Management Strategy or Risk- Triggering Device? Xuedan (Shelly) Xiong... 757

Book Review

Divorce in China: Institutional Constraints and Gendered Outcomes by Xin He [New York University Press, 2021, 304pp, hardback, US$65] ISBN 147980553X  

Sida Liu... 785

New Issue of Hong Kong Law Journal (Vol. 52, Part 1 of 2022)

HONG KONG LAW JOURNAL

Vol. 52, Part 1 of 2022

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

 

Lecture

Food, Clothing and Housing as Human Rights 

Kemal Bokhary… 1

Articles

The 2019 Rendition Saga in Hong Kong: A Perspective on the Tensions Inherent in “One Country, Two Systems”

Fan Xiang… 9

The 2019 political storm in Hong Kong, triggered by resistance to a proposed law that would have created an institutional channel for the extradition of fugi¬tives from Hong Kong to Mainland China, resulted in the most severe and prolonged civil unrest in this city since China resumed exercise of sovereignty over Hong Kong in 1997. This article considers the nature of the 2019 rendi¬tion saga in the context of the tensions inherent in the constitutional framework of “One Country, Two Systems”. It is contended that there are contradictions within the structure of the “One Country, Two Systems” formula such that it encourages and yet limits a Western-style liberal democracy in Hong Kong. It is argued that the prolonged anti-extradition movement is no more than a reflection of the internal contradictions of “One Country, Two Systems” but in a more ferocious way than before. If this paradox is not resolved properly, it is doomed to plague Hong Kong in the future.

Recordation and Review by the National People’s Congress Standing Committee under the Hong Kong Basic Law 

Paul Law and Trevor Wan… 43

This article explores the Recordation and Review Mechanisms anchored in art 17(2) and 17(3) of the Basic Law which provides for the obligation of Hong Kong to report enacted laws to the China’s National People’s Congress Standing Committee (NPCSC) for the record and the NPCSC’s corresponding powers to review and return any such laws. We argue that the Recordation and Review Mechanisms are an interconnected set of constitutional enforcement mecha¬nisms for the NPCSC to police the constitutional limits of Hong Kong’s auton¬omy. Furthermore, we highlight and examine two ambiguities in art 17(2) and 17(3), namely the lack of any mention of conditions under which the art 17(3) review process could be triggered and the ambiguous legal status of reported laws that have not been returned by the NPCSC. This article then undertakes a comparative study vis-a-vis the Chinese Filing and Review System, China’s key legislative supervisory system, which we argue is indispensable in fully understanding the operation of Hong Kong’s Recordation and Review Mechanisms and resolve the two ambiguities highlighted. We sketch, drawing on the Chinese Filing and Review System, how the review process could be activated and how NPCSC’s power of review could be reconciled with local courts’ jurisdiction of constitutional review through developing a framework elucidating the proper judicial responses to a “passive confirmation” by the NPCSC in not returning a submitted law under different circumstances.

The CISG and its Extension to a Territorial Unit of a Contracting State: The Case of HongKong 

Liu Qiao… 67

A Sophisticated Solution for Overlapping Maritime Areas: Is Joint Development Keyfor the East China Sea? 

Horus Qi, Pengfei Zhang and Tingting Ni… 89

Parent Company’s Joint Liability in Tort: An Alternative to Manage Corporate Tort Problems 

Xue Feng… 117

The Unity of Non-territoriality in Outer Space versus the Diversity of Territoriality in Intellectual Property: A Reconciliation Regime for Sustainable Space Commercialization 

Chen Zhijie… 157

No-Fault Divorce: The Right Direction towards Therapeutic Justice 

Leon Vincent Chan and Andrea Ang Si Min… 183

Regulating Weighted Voting Rights in Asia: Pragmatism or a Race to the Bottom?

Charlie Weng Xiaochuan… 209

Diversity of Mediation and its Impact on the Singapore Mediation Convention

Cai Wei… 237

China Law

The Doctrine of  Kompetenz-Kompetenz: A Sino-French Comparative Perspective 

Fu Panfeng… 259

The Mandatory Bid Rule’s Dispensation Regime for the Gratuitous Transfer of State-owned Shares in China: An Analysis from the Perspective of Efficiency 

Xue Renwei… 289

The Autonomy of Charities in China 

Hui Jing… 323

The Charity Law, which was promulgated in 2016, creates a public law-pri¬vate law hybrid model for the regulation of charities in China. The incorpora¬tion of private law norms into the new legislative framework demonstrates the state’s willingness to confer greater autonomy on charitable actors with regard to determining how their assets can be utilised for charitable purposes. This article analyses the associated post-2016 regulatory framework and outlines the extent to which private actors can voluntarily engage in charitable activities after the passage of the new charity law. It also reports the way in which the new regulatory framework has been implemented in practice based on data col¬lected through semi-structured interviews. Observations associated with regula¬tory practices suggest that the political philosophy underlying the new regulatory framework remains unchanged: strict government control remains predomi¬nant, and the scope for private actors to exercise their management rights is still considerably limited.

Unravelling the Paradigm Shift of Imposing Capital Punishment for Property Offences in Early Qing Dynasty

Meng Ye and Chen Li… 351

Government as a Platform Chinese Style: The Health Code in China’s Rapidly Developing Digital Ecosystem

June Wang Zhiqiong… 367

Book Review

Towering Judges: A Comparative Study of Constitutional Judges

Evan Rosevear... 397

Transnational Sex-Trafficking

Patricia Ho… 403

Eric Ip & Trevor Wan on The Right to Pursue Happiness on a Healthy Planet is a Fundamental Right (Journal of Medical Ethics blog)

"The right to pursue happiness on a healthy planet is a fundamental right"

Eric Ip & Trevor Wan
Journal of Medical Ethics blog
17 June 2022

Happiness and health determine what, why, and how we do what we do. There is a profound relationship between the two. The Constitution of the World Health Organization, a multi-lateral international treaty, proclaims in its preamble that health is ‘basic to the happiness’ of all peoples. Healthier people tend to be happier, and happier persons live longer. Whether we understand happiness as the ‘hedonistic’ attainment of pleasure and avoidance of pain, or the ‘eudaimonistic’ pursuit of meaning and self-realisation, it is unsustainable on a planet whose health is rapidly deteriorating. ... Click here to read the full text. 

Thomas Yeon and Trevor Wan on Interpreting Provisions Ousting the Courts’ Supervisory Jurisdiction over Election Candidacy Decisions (HKLJ)

"Interpreting Provisions Ousting the Courts’ Supervisory Jurisdiction over Election Candidacy Decisions"
Thomas Yeon (PCLL (HKU)) and Trevor T. W. Wan  (LLB (Government and Laws (HKU) )
Hong Kong Law Journal, 

2021, Vol. 51, Part 3 of 2021, pp. 829-844

Abstract: Following the National People’s Congress’s decision to overhaul Hong Kong’s electoral system in March 2021, its Standing Committee resolved to amend Annexes I and II of the Basic Law, providing for the establishment of a Candidate Eligibility Review Committee for elections of the Chief Executive, members of the committee responsible for electing the Chief Executive, and members of the Legislative Council. The amendment also added an ouster clause, replicated statutorily in the Legislative Council Ordinance (Cap 542) and Chief Executive Election Ordinance (Cap 569), to the effect that “no legal proceedings may be instituted in respect of a decision” made by the Candidate Eligibility Review Committee. This article seeks to illustrate the constitutional–statutory hybrid character of the ouster clause and the interpretive principles applicable towards it. It also responds to two objections against qualifying the ouster clause’s effect based on the clause’s constitutional character and its relationship with the National Security Law.

Thomas Yeon & Trevor Wan on Comparative Constitutional and Administrative Law in Hong Kong: In Search of Coherence (Public Law)

"Comparative Constitutional and Administrative Law in Hong Kong: In Search of Coherence"

Thomas Yeon (PCLL 2020) and Trevor Wan (BSS(GL)&LLB 5)

Public Law

Published: 1 April 2021

Abstract: This commentary analyses the decision of the Hong Kong Court of First Instance (the court) in Kwok Wing Hang v Chief Executive in Council and critically analyses and evaluates the court’s approach to the limitation of executive powers and the protection of fundamental rights with respect to its approach in citing foreign jurisprudence from the UK, Australia and under the European Convention on Human Rights. The authors argued that while the court’s treatment of constitutional and administrative cases from common law jurisdictions is generally coherent (albeit with room for improvement in dissecting technical details), the court’s approach to Strasbourg jurisprudence is incoherent and fails to appreciate analytical nuances both as a matter of law and fact. A two-step approach will be proposed for Hong Kong courts’ future consideration in adopting constitutional and/or administrative jurisprudence from foreign jurisdictions.  Note that the Court of Final Appeal's decision in this case can be found here.

New Volume of Hong Kong Journal of Law and Public Affairs on Militant Democracy and Constitutionalism

HONG KONG JOURNAL OF LAW AND PUBLIC AFFAIRS

2020, Volume 2

MILITANT DEMOCRACY AND CONSTITUTIONALISM

The Government and Laws Committee, The University of Hong Kong (GLC) is pleased to officially unveil the Second Volume (2020) of the Hong Kong Journal of Law and Public Affairs (HKJLPA), the official annual journal of the GLC. The volume is titled “Militant Democracy and Constitutionalism”.

ABOUT THE VOLUME

The Second Volume 2020 of the Hong Kong Journal of Law and Public Affairs, published in Fall 2020, is entitled “Militant Democracy and Constitutionalism”.

     The end of Cold War has once endowed the world with optimism that the End of History has finally arrived. However, the rise of populist leaders with little regard to democratic norms, authoritarians which harness the constitutional toolbox to subvert democratic processes and an unprecedented invocation of emergency powers to combat the COVID-19 pandemic have all but blossomed into a siege against Constitutional Democracies on a global scale. This timely Volume, situated against the backdrop of global constitutional backsliding, features essays from leading political scientists and constitutional scholars. It discusses one of the possible countermeasures of democratic self-defence that has existed since 1937 – militant democracy and militant constitutionalism.

     In addition, this Second Volume is graced with a case commentary on Miller (No.2), two interviews with leading constitutional lawyers Professor Andrew J Harding and Dr Tonio Borg, and two author interviews conducted with Professor Joel Colón-Ríos and Dr Eric C Ip on their new books. It ends, as usual, with a review of the Government and Laws Committee's initiatives and publications over the past academic year.

OBTAINING A COPY

You may access the online copy here at: http://www.hkuglc.org/government-and-laws-committee-hku-hkjlpa

ABOUT HKJLPA

The Hong Kong Journal of Law and Public Affairs (HKJLPA) is the first English language studentedited journal in law and political science in East Asia, published by the Government and Laws Committee, The University of Hong Kong (GLC) since 2019, in restoration of the student-edited Hong Kong University Law Journal (1926-1927), founded by Professor George Keeton (1902-1989), the first Lecturer of Political Science and Jurisprudence and Reader of Law and Politics at HKU, and later Dean of Laws and Vice Provost at University College London (UCL).

     Supported by an International Editorial Advisory Board consisting of distinguished scholars, HKJLPA publishes articles in the English language from researchers, teachers, practitioners, and students all over the world. It accepts submissions in all areas broadly related to the intersection between law and politics, including but not limited to comparative constitutional law and politics, international law and relations, jurisprudence and political philosophy, and administrative law and public administration.

     As the GLC’s flagship publication backed by the HKU Government and Laws Programme, HKJLPA is committed to promoting a stronger understanding of cutting-edge issues that lie at the nexus of law and politics at the international and domestic levels, and to offering a robust platform for the exploration of ideas that will guide how societies are organised and governed.