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

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

Emily Lee

Journal of Corporate Law Studies

Published online: 26 May 2023

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

CCPL Conference: COVID-19, Borders, and the Law (24 & 25 May 2022)

TODAY & TOMORROW

 

CCPL: COVID-19, Borders, and the Law

 

24 MAY 2022 (TUE) & 25 MAY 2022 (WED)

All are welcome!

Registration link: https://hkuems1.hku.hk/hkuems/ec_hdetail.aspx?guest=Y&ueid=81293

PANEL 1: Border Restrictions, Quarantine, and Human Rights Derogations (1:15pm-3pm HKT, May 24)

·         “A Human Rights-Based Approach to Stop a Pathogen at Borders”

o   Martin Scheinin (European University Institute)

·         “Travel Restrictions and International Freedom of Movement”

o   Fernando Dias Simões (Chinese University of Hong Kong)

·         “Lived Experience of Australia’s International and Domestic Covid-19 Border Closures”

o   Kate Ogg (Australian National University) and Olivera Simic (Griffith University)

Chair: Po Jen Yap (HKU Law)

 

PANEL 2: Pandemic Treaties and Travel Restrictions: The Present and Future (3:30pm-5pm HKT, May 24)

·         “An Assessment of the Effectiveness of the International Health Regulations in the Response to Covid-19”

o   Susan Breau (University of Victoria, Canada)

·         “Evolving Understandings of the Effectiveness of International Border Control Measures During the Covid-19 Pandemic”

o   Karen Grépin (HKU School of Public Health)

·         “Digital Capacity and the Proposed International Pandemic Preparedness Treaty”

o   Calvin Ho (HKU Law)

Chair: Eric Ip (HKU Law)

 

PANEL 3: Interdisciplinary Perspectives on Pandemics and Border Control (4pm-5:30pm HKT, May 25)

·         “After Covid-19: States, Borders and the New Politics of Exclusion”

o   Matthew Longo (Leiden University)

·         “Border Governance, Shadow Exchanges, and Biosecurity During Covid-19”

o   Tak-Wing Ngo (University of Macau)

·         “Inbound Quarantine Regulations in Colonial Hong Kong”

o   Christopher Szabla (HKU Law)

Chair: Michael Ng (HKU Law)

 

PANEL 4: The Impact of Covid-19 on Migrants and Refugees (7:30pm-9pm HKT, May 25)

·         “Migration in the Mediterranean at the Time of the Pandemic”

o   Sofia Galani (Panteion University, Greece)

·         “How Covid-19 Reinforced Existing Challenges to the Protection of Forced Migrants: Examples from South America”

o   Liliana Jubilut (Universidade Católica de Santos, Brazil)

·         “Citizenship, the Exclusive State, and the Transboundary Pandemic: Covid-19 and Migrants in Southeast Asia”

o   Sriprapha Petcharamesree (Mahibol University, Thailand)

Chair: Kelley Loper (HKU Law)

 

This conference is organized by the Centre for Comparative and Public Law, HKU and will be held via Zoom Meeting. Prior registration is required. For inquiries, please email Phoenix To at pxto@hku.hk.

New Book by Anselmo Reyes and Wilson Lui: Direct Jurisdiction: Asian Perspectives (Hart Publishing)

Direct Jurisdiction: Asian Perspectives

edited by Anselmo Reyes and Wilson Lui (BA&LLB 2019)
Hart Publishing

Publication Date: August 2021
440 pp

Description: The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian jurisdictions (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book's chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).

     The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian jurisdictions in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian jurisdictions may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian jurisidction to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.

Gu Weixia on A Conflict of Laws Study in Hong Kong–China Judgment Regionalism: Legal Challenges and Renewed Momentum (Cornell Law School Journal)

"A Conflict of Laws Study in Hong Kong–China Judgment Regionalism: Legal Challenges and Renewed Momentum"

Gu Weixia

Cornell International Law Journal

Winter 2020, Volume 52, Issue 4, pp 591-642

Abstract: With the intensifying economic and social dynamics between Hong Kong and Mainland China since the handover in 1997, a comprehensive and effective cross-border judgment recognition and enforcement mechanism is imperative in order for Hong Kong to reinforce its role as a dispute resolution center in the perspective of judgments, in the context of the Belt and Road Initiative, and in the Greater Bay Area. This Article examines in detail the achievements and inadequacies in the current Hong Kong statutory and common law regimes, particularly the Mainland Judgment (Reciprocal Enforcement) Ordinance (Cap. 597), and reveals their tensions and inconsistencies with Mainland regimes and the 2005 Hague Convention on Choice of Court Agreements. Then, the Article provides an exhaustive statistical analysis on cases involving the MJO and explains the evolution to a more pro-enforcement judicial approach towards Mainland judgments in Hong Kong recently. It concludes by looking at the breakthroughs and outstanding issues of the new 2019 Arrangement between Hong Kong and the Mainland, as well as the prospects of Hong Kong in acceding to the 2005 and 2019 Hague Conventions and developing an interregional judgment recognition and enforcement framework. Click here to download the full article.

Albert Chen: A Perfect Storm: How the Proposed Law on Hong Kong-Mainland China Rendition was Aborted (Verfassungsblog)

"A Perfect Storm: How the Proposed Law on Hong Kong-Mainland China Rendition was Aborted"

Albert H.Y. Chen

Verfassungsblog
19 Jun 2019

On 9 June 2019, Hong Kong became the focus of international attention as hundreds of thousands of demonstrators marched on Hong Kong Island to oppose the imminent enactment of a bill that would introduce a rendition arrangement, inter alia, as between Hong Kong and other parts of China (including mainland China, Taiwan and Macau). This legislative proposal has not only led to the largest protests in the history of postcolonial Hong Kong but has also brought about one of the greatest crises of governance in post-1997 Hong Kong.

     Hong Kong politicians and civil society have been highly polarized since the introduction of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019(hereafter referred to as “the Bill”) in March 2019,1) with the “pro-China camp” supporting the Bill and the “pro-democracy camp” (also known as the “pan-Democrats” or the “Opposition”) strongly opposed to the Bill. Several foreign governments, including the USA, Canada, Britain, Germany and Australia, as well as the EU, publicly expressed concerns about the Bill. On the other hand, the Chinese central government in Beijing publicly expressed support for the Bill in May 2019, and criticized foreign interventions in China’s domestic affairs... Click here to read the full post.

Loh & Cullen's "Hong Kong in China: Rethinking the Hong Kong-Mainland Relationship" (IPP Review)

"Hong Kong in China: Rethinking the Hong Kong-Mainland Relationship" (Part 1, Part 2, and Part 3)

Christine Loh & Richard Cullen
IPP Review

Part 1

(published on 12 Nov 2018)

Overview

It is more than 21 years since British Hong Kong became the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC). Much has happened that is positive since 1997. At the same time there have been recurring political incidents and stand-offs which have produced a series of severe policy log-jams and bred anxiety among the people of Hong Kong. There is a belief that Hong Kong is “stuck” and unable to advance.

     Could the HKSAR see a positive future within China? We recently published a short book, with Abbreviated Press in Hong Kong, entitled, No Third Person: Rewriting the Hong Kong Story, to address this question. We feel that there remains a need for a further, more thorough discussion about Hong Kong’s future. We are grateful to the IPP Review for enabling us to publish this extended discussion: Hong Kong in China – with the generous agreement of Abbreviated Press. (Sections within Hong Kong in China repeat text and arguments found in No Third Party.)

     The last British Governor of Hong Kong, Chris Patten noted, in 1996, that "The world should want China to succeed as it continues its brave economic revolution." We agreed with that view then and we agree with it today. In this work, serialized in three parts in the IPP Review, we explain why Hong Kong remains exceptionally well placed to continue to shape its own positive future, within China, just as it has done, with such remarkable success, in the past.

     Part 1 of Hong Kong in China provides a general introduction of the historical background of Hong Kong seen from British and Chinese perspectives over the last two centuries. It also explains the constitutional and legal structure of Hong Kong’s reversion to Chinese sovereignty and considers how this regime has operated when placed under stress. Part 2 sets out Hong Kong’s economic fundamentals and also reviews the geo-political stresses affecting the Hong Kong – mainland relationship. Part 3 investigates how Hong Kong can get unstuck and – building on this – how Hong Kong can construct its new narrative – the story of Hong Kong in China.

I. Introduction

A robust, well explained narrative can join the past and the future. Such stories can motivate a community to believe and to take action. A good story can even persuade others that someone or something is special and, even without having a direct stake in what happens, they may be convinced to wish those who are directly involved all the best in what they are trying to achieve.

     Hong Kong had a good story in the run-up to 1997 that was created by the British. The colony’s indomitable people worked hard, and they might triumph even under illiberal Chinese rule because they had been well-tutored under a benign Britain, which ruled Hong Kong relying on a western form of authoritarian legality. Hong Kong people were cosmopolitan and free to do what they wanted, especially in the pursuit of making money under a capitalist environment that was protected by a common law-based legal system.

     The People’s Republic of China had its own story about Hong Kong. Britain snatched it from a weak China in the 19th century and the reunification of Hong Kong with the motherland in 1997 signified the end of a long period of humiliation. Hong Kong would enjoy a very special status in China and it would be just as politically stable and economically prosperous as before because of China’s wise and pragmatic ‘one country, two systems’ policy... Click here to read the full text. 

Part 2 

(published on 9 Dec 2018)

Overview

Can Hong Kong envisage a progressive future within China? We recently published a short book, with Abbreviated Press in Hong Kong, entitled, No Third Person: Rewriting the Hong Kong Story, to address this question. We feel that there remains a need for a further, more thorough discussion about Hong Kong’s future. We are grateful to the IPP Review for enabling us to publish this extended discussion, Hong Kong in China, with the generous agreement of Abbreviated Press.(Sections within Hong Kong in China repeat text and arguments found in No Third Party.)

     Part 1 of Hong Kong in China was published by the IPP Review on November 12, 2018. Part 1 provided a general introduction of the historical background of Hong Kong seen from British and Chinese perspectives over the last two centuries. It also explained the constitutional and legal structure of Hong Kong’s reversion to Chinese sovereignty and considered how this regime has operated when placed under stress.

     Part 2 now sets out Hong Kong’s economic fundamentals and also reviews the geo-political stresses affecting the Hong Kong-mainland relationship. Part 3 will investigate how Hong Kong can get unstuck and – building on this – how Hong Kong can construct its new narrative – the story of Hong Kong in China.

VI. The Bygone British Hong Kong Arbitrage

The ability of autocratic regimes to compete with economic performance of 

liberal democracies is a particularly important and novel development.

Yasha Mounk and Roberto Stefan Foa

Hong Kong people’s collective political memory has to do with China’s post-1949 history and their own treasured, free lifestyle in Hong Kong. Hong Kong has been a place of refuge, where the people were able to arbitrage the difficult circumstances on the mainland while residing in the British-held colony. Pre-1997 Hong Kong was a political anomaly but was considered a “miracle.” After 1997, Hong Kong people must reconcile that they are Chinese nationals and part of the People’s Republic of China. Their future is hitched to that of the nation and they can no longer arbitrage in the way they did before.

Collective memories

Accepting that China has resumed full sovereign power over Hong Kong has not been easy for many Hong Kong people. Older generations retain vivid memories of the 1960s when the city was rocked by the Cultural Revolution on the mainland and deadly confrontation seeped across the border for some months.

     That period fundamentally turned them off the Chinese Communist Party because of the senseless violence and the fact was China was economically backward and the people poor. Revolution was not going to do anything to improve the country. Tens of thousands of people, mostly from nearby Guangdong, took enormous risks to escape to Hong Kong because it was in British hands. Between 1965 and 1975, the population rose from 3.59 million to 4.46 million, an increase of over 870,000 people.

     Hong Kong was not only safe for the refugees but economically attractive. From the 1950s, Hong Kong had developed a robust manufacturing economy. Growth in the 1960s had much to do with producing labour-intensive consumer goods for export to the West. The ‘Made in Hong Kong’ label was well-known in Western markets.

     While revolution engulfed the mainland, Hong Kong prospered from trade and commerce. Hong Kong produced movies, songs, and entertainment which were trendsetters in Asia. There was plenty of work and many money-making opportunities for everyone in the flourishing colony. Hong Kong was exciting and innovative. The West was where Hong Kong people saw promise – not the mainland.

East-West geopolitics

Hong Kong’s arbitrage was possible because of the on-going East-West struggle, embodied by the Cold War, where two contending political ideologies clashed. Each of the two most powerful nations – the Soviet Union and the United States – had their sphere of influence. Like the Soviet Union, China practised communism and was thus part of the glum communist bloc. The United States was capitalist, democratic and vibrant – its values and system appeared to possess the political DNA that made a country successful. ... Click here to read the full text. 

Part 3

(published on 7 Jan 2019)

Overview

Can Hong Kong envisage a progressive future within China? We recently published a short book, with Abbreviated Press in Hong Kong, entitled, No Third Person: Rewriting the Hong Kong Story, to address this question. We are grateful to the IPP Review for enabling us to publish this extended discussion: Hong Kong in China – with the generous agreement of Abbreviated Press. (Sections within Hong Kong in China repeat text and arguments found in No Third Party.)

     Part 1 of Hong Kong in China provided a general introduction of the historical background of Hong Kong seen from British and Chinese perspectives over the last two centuries. It also explained the constitutional and legal structure of Hong Kong’s reversion to Chinese sovereignty and considers how this regime has operated when placed under stress. Part 2 of Hong Kong in China sets out Hong Kong’s economic fundamentals and also reviewed the geo-political stresses affecting the Hong Kong-mainland relationship.

     Part 3 investigates how Hong Kong can get unstuck and – building on this – how Hong Kong can construct its new narrative – the story of Hong Kong in China.

VIII. Getting “Unstuck”

The previous British Hong Kong story was a good one but is now dated. Today, earlier assumptions need to be examined and reviewed carefully. Nostalgia cannot help Hong Kong deal with the current, swiftly changing world. As Hong Kong orients itself towards the future, it needs to reinvigorate its collective consciousness. Deep down Hong Kong people know this. They must find the courage to admit to a new reality in its relations with the People’s Republic and find the voice to weave a new strategy and story that make sense.

     To put it simply and bluntly – Hong Kong must first and foremost accept the People’s Republic for what it is today and work towards national betterment. To ‘accept’ does not mean total approval of every aspect of the nation but it does require acknowledgement that the mainland is what it is, and recognise that as the starting point rather than wish it to be something else or to refute it. To advance Hong Kong’s cause as a progressive, well-governed society and a liveable city, Hong Kong does not need to challenge Beijing’s authority. This ought to be the starting point of creating a new story.

     Hong Kong is most useful to itself and the nation when it can demonstrate the highest competence in specific pursuits within both the public and private spheres. The danger Hong Kong faces is that the old arbitrage has disappeared and if it does not recreate itself to make the most of the exceptional opportunities it enjoys as a Special Administrative Region (SAR) within China, it will get squeezed out by much harder working neighbours both on the mainland and in Asia. This is not a time to be complacent and even less for feeling superior to others.

     Hong Kong should take stock of its many constitutional, economic, social and political assets to see how each of them can help in configuring a new story fit to guide Hong Kong with fresh clarity and purpose. There are many stakeholders who have parts to play.

Being inside China

A major part of the problem is Hong Kong has yet to reconcile itself fully to being at home, within the People’s Republic of China (PRC). There are many reasons for this and it is not our intention to discuss them here in any detail. However, we can say, very broadly, that the reasons are tied to family history, personal experiences and values, as well as fear and anxiety about the loss of Hong Kong’s freedoms.

     Collective reconciliation is required. To secure this, however, reconciliation has to take place on an individual basis. This is a key issue for Hong Kong people to reflect upon over time and in detail. It is particularly important for the younger generations since some of them appear to have the greatest difficulty with reconciling that Hong Kong is a part of China and that they are Chinese nationals. We should be clear, too, that there is not a single, all-encompassing younger generationin Hong Kong uniformly beset by reconciliation malaise, notwithstanding continuing implicit and explicit suggestions to the contrary. As with older generations, there is a spectrum of views ranging from an easy feeling of about being part of China to rejecting the mainland.

     Hong Kong people are extremely privileged in enjoying freedoms unavailable on the mainland. It is understandable that Hong Kong people have the greatest difficulty with human rights issues with respect to the mainland. Greater freedom for all is a legitimate aspiration but Hong Kong needs to give careful consideration to how it might be pursued over time.

     Hong Kong should think strategically about how it can position itself as a part of China...  Click here to read the full text.

Yongxi Chen & Lingqiao Song on China and the Regulation of Cross-Border Genomic Data Sharing (Human Genetics)

"China: concurring regulation of cross-border genomic data sharing for statist control and individual protection"

Human Genetics
Yongxi Chen & Lingqiao Song
published online, 16 July 2018

Abstract: This paper reviews the major legal instruments and self-regulations that bear heavily on the cross-border sharing of genomic data in China. It first maps out three overlapping frameworks on genomic data and analyzes their underpinning policy goals. Subsequent sections examine the regulatory approaches with respect to five aspects of responsible use and sharing of genomic data, namely, consent, privacy, security, compatible processing, and oversight. It argues that substantial centralised control exerted by the state is, and would probably remain, the dominant feature of genomic data governance in China, though concerns of individual protection are gaining momentum. Rather than revolving around a simplistic antinomy between privacy preservation and open science, the regulatory landscape is mainly shaped by the tension between government desires for national security, state competitiveness, and public health benefits.

Kelvin Kwok on Bilateral Antitrust Cooperation Between Hong Kong and Mainland China (new article)

"Antitrust Enforcement and State Restraints at the Mainland China-Hong Kong Interface: The Importance of Bilateral Antitrust Co-operation"

Kelvin Kwok

Asian Journal of Comparative Law

May 2017, First View
Vol 2, Issue 2, Dec 2017

Abstract: This article argues that effective co-operation between the antitrust authorities of Mainland China and Hong Kong in antitrust enforcement and the removal of anti-competitive state restraints is essential to the promotion of market competition in, as well as free trade and economic integration between, the two regions. This entails the careful design and conclusion of a bilateral co-operation agreement embracing not only comity co-operation in antitrust enforcement, but also the adoption of a diplomatic solution of mutual self-restraint for the removal of anti-competitive state restraints at the Mainland China-Hong Kong interface. This would also require the co-operation of Mainland Chinese and Hong Kong government authorities. Only with such bilateral cooperation can anti-competitive business practices and state restraints obstructing free trade and economic integration between the two regions be eliminated.

Anselmo Reyes on Cross-Border Insolvency and Shipping Companies (LMCLQ)

"Cross-border insolvency and shipping companies"
Anselmo Reyes
Lloyd’s Maritime and Commercial Law Quarterly

2016, pp 517-528

Abstract: This article examines the Hong Kong Court of Appeal’s decision in The Convenience Container, where the court refused to set aside in rem writs even though the shipowner company was in liquidation in a foreign jurisdiction. In view of the principle of “modified universalism”, recently endorsed by the English Supreme Court and approved by the Hong Kong Court, the author doubts the correctness of the reasoning in the case and argues that, upon liquidation, the shipowner company ceased to be the beneficial owner of the relevant vessels. Hence, the plaintiffs should not have been allowed to jump the queue of the shipowner’s unsecured creditors by bringing statutory in rem proceedings against the vessel. 

Weixia Gu Awarded Top Prize in the 2015 Best Research Output Prize, China Society of Private International Law

Congratulations to Weixia Gu, whose article "15 Years of the Handover: The Rise, Discontent, and Positive Interaction of Cross-border Arbitration in Hong Kong and Mainland China" (full download available) was awarded the top prize (First Class Journal Article) in the 2015 Best Research Output Prize of the China Society of Private International Law (Society). The article was published in the University of Pennsylvania East Asia Law Review, volume 9, issue 1, pp. 42-98, published in April 2014. The research was an output of a General Research Fund project funded by the Research Grants Council. 

     Background on the prize: Every year, there are 10 research outputs in the area of private international law/conflict of laws in China and Greater China selected to be honoured by the Society as Best Research Output Prizes. The Prize Competition is organised by China Society of Private International Law Secretariat, and referees are leading experts in the field in China. Among the 10 outputs honoured, there are two honoured as “First Class”, three honoured as “Second Class”, and five honoured as “Third Class”. For the “First Class” Prizes, they are sub-divided as “Authored Book” (1 Prize) and “Journal Article” (1 Prize).  For more information on the award, click here (in Chinese).

HKU Law Faculty Comment on Recent Criminal Deportation Cases Connected to Taiwan (SCMP)

"Beijing has 'legal right' to demand Kenya deport Taiwanese fraud suspects"
Catherine Wong & Lawrence Chung
South China Morning Post
15 April 2016

Beijing had legal grounds to ask Kenyan authorities to deport Taiwanese fraud suspects to the mainland, legal experts say, but it could have avoided controversy over its handling of the affair by showing more respect and better communication with Taipei.

      Forty-five Taiwanese, together with 32 mainlanders in Kenya, were sent to the mainland as authorities investigate their alleged ­involvement in phone scams targeting victims on the mainland.

     The deportations attracted criticism, though legal ­experts said Beijing’s handling of the case was supported by international laws...“Kenya and China, both of which are parties of the Palermo Convention, have the obligation to cooperate in [transnational] organised crime,” said Simon Young, a law professor at the University of Hong Kong. “On the other hand, there is no extradition agreement between Taiwan and Kenya.” The Palermo accord was adopted by the United Nations in 2000 with the aim of promoting cross-border cooperation in tackling organised crime... Click here to read the full article.

"Taiwan hopes for more formal crime-fighting measures with Hong Kong but city's legal scholars see hurdles"

KC Ng, Owen Fung & Samuel Chan

South China Morning Post

16 April 2016

Taiwan authorities expressed hope over establishing a formal crime-fighting mechanism with Hong Kong following the recent transfer of three suspects in the body-in-cement murder case from the island to the city. 

    Legal scholars in Hong Kong, however, had differing views on how likely such a system could be implemented, while a well-placed Taiwan official told the Post that Hong Kong’s lukewarm response to the idea thus far was a far cry from the close relations the respective law enforcement agencies had prior to the city’s 1997 handover. On Thursday, Taiwan’s Mainland Affairs Council said the island wanted to establish closer joint crime-fighting efforts with Hong Kong, including signing a mutual legal assistance agreement... The establishment of mutual legal assistance between Hong Kong and Taiwan would require Beijing’s authorisation, according to Simon Young, a law professor at the University of Hong Kong. 

     Young said he believed there were many reasons the central government would support such a formal arrangement, citing a criminal cooperation agreement between the mainland and Taiwan that was implemented in 2009 and had been successful.“I think it is in everyone’s interest to try to negotiate a workable cooperation framework between the mainland, Hong Kong, Macau and Taiwan,” he said. 

    But the legal scholar noted there could be some difficulties in working out a cooperation framework as Taiwan employs the death penalty while Hong Kong does not. 

     Albert Chen Hung-yee, another legal professor at HKU, was less optimistic. Chen said while it would be best for the city to establish an extradition arrangement with Taiwan, such a move would be unlikely. “Even between Hong Kong and the mainland, there is no formal extradition arrangement, so establishing one with Taiwan would be quite difficult,” he said.  Click here to read full article.

Albert Chen on Hong Kong-China Speed Train Immigration Arrangements (China Daily)

"Laws needed for co-location: Albert Chen"
Joseph Li
China Daily
18 March 2016

Albert Chen Hung-yee, a member of the HKSAR Basic Law Committee, says Hong Kong and the mainland may have to enact laws to implement co-location of immigration facilities at the West Kowloon Terminus of the high-speed rail link.

     Chen, who is also a law professor at the University of Hong Kong, told China Daily in an exclusive interview that the co-location arrangement is convenient to commuters and legally workable. He said people should not worry that the “One Country, Two Systems” principle would be compromised, as the opposition camp claimed. Similar co-location arrangements are in force in foreign countries - and also at Shenzhen Bay Control Point between Hong Kong and Shenzhen. Nobody opposed the Shenzhen Bay model in 2006, Chen added.

    He said the opposition should not bundle the HK$19.6 billion supplementary funding for construction of Guangzhou-Shenzhen-Hong Kong Express Rail Link with the co-location issue, as these two issues could be dealt with separately. The additional funding was approved by the Legislative Council Finance Committee last week.

     Recently in Beijing, Rao Geping, a mainland member of the Basic Law Committee, said that to implement co-location, Hong Kong and mainland authorities needed to reach an agreement, which could be endorsed by the Standing Committee of the National People’s Congress - the country’s highest legislature. Rao also said there was no need to include more national laws in Annex III of the Basic Law. The annex stipulates which national laws are applicable to Hong Kong.

     Referring to Rao’s proposal, Chen said it could not solve the problem completely. He said it was necessary for Hong Kong to enact a law, or for both the SAR and the mainland to enact laws, to implement co-location of facilities in Hong Kong.

     “It is (safer) to make laws in both places because the Hong Kong legislation alone cannot decide if local courts have jurisdiction over the mainland officers performing duties in Hong Kong,” Chen said.

    He said that under Hong Kong legislation, the powers of mainland officers performing immigration, customs and quarantine duties in designated areas of the West Kowloon Terminus would be specified.

     The officers should not have the power of arrest in Hong Kong although they can repatriate persons who are refused entry into the city. In case those persons apply for habeas corpus, Hong Kong courts shall have the power to accept or reject the application, Chen added.

      At the same time, a mainland law will be enacted to spell out which types of conduct of the mainland officers are within the jurisdiction of courts in Hong Kong and this law shall be incorporated into Annex III of the Basic Law. That will be similar to the Garrison Law that applies to the People’s Liberation Army Hong Kong Garrison.

     Chen said: “If the powers of the mainland officers performing duties in Hong Kong are clearly defined and limited by law, it will make Hong Kong residents feel more comfortable.

     “Yet those who oppose the Express Rail Link and co-location will oppose whatever form of co-location system,” he added... Click here to read the full article.

Michael Davis Comments on the Return of Two Hong Kong Booksellers (Time)

"Two Hong Kong Booksellers Return Under Dubious Circumstances"
Nash Jenkins
Time
7 March 2016

Two Hong Kong booksellers who disappeared last autumn returned to the territory over the weekend after months in the custody of mainland Chinese officials.

     Lui Por and Cheung Chi-ping are among the five affiliates of Mighty Current Media — a Hong Kong publishing house that specializes in tawdry texts about the supposed private exploits of Chinese communist officials — who went missing in the last months of 2015. Four of the five detained employees, including Lui and Cheung, have appeared on Chinese television to say that they had been detained for selling thousands of illegal books in the mainland.

     “The mainland legal system is built around an inquisitorial system — a system of confessions,” Michael Davis, an expert in Hong Kong and Chinese law at the University of Hong Kong, told TIME on Monday. “There’s severe pressure on defendants to confess. Their trial procedures don’t meet international standards — it’s a rights violation.”

     On Friday, Hong Kong police released a statement confirming that Lui had returned to the territory and that he had requested they terminate the investigation into his disappearance; a virtually identical notification came on Sunday upon Cheung’s return. Authorities offered no further comment, but past reports suggest the two men may have been let out on bail... Click here to read the full article.

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.

Latest Commentary on the Lee Bo Case in Hong Kong

"Lee Bo's case highlights grey areas in Hong Kong's Basic Law on cross-border criminal investigations"

Simon Young
South China Morning Post
20 January 2016

Many feel “one country, two systems” has suffered a serious blow from the mysterious circumstances of Lee Bo’s case, but it is too soon to conclude that the Basic Law has been violated.

     If Lee crossed the border voluntarily and on his own, there would be no Basic Law issue. If private individuals unconnected to the mainland government were involved in forcing or persuading Lee to cross the border then, again, it is difficult to see this as a constitutional crisis, even though such individuals may have committed ordinary crimes.

     There are a number of indications, however, that mainland officials were implicated in Lee’s entry. First there are Lee’s statements that he is “assisting an investigation” on the mainland. The nature of the books sold by Lee’s bookstore, coupled with the disappearances of his four associates, suggest a criminal investigation into offences of spreading rumours or slander to subvert state power or other national security offences.

     Then there was the entry itself without the usual immigration clearances, suggesting official intervention. Finally, there is the unexplained need for Lee and his associates to remain on the mainland indefinitely if the “investigation” relates only to their associate Gui Minhai’s alleged case of vehicle homicide.

     Even if mainland officials were involved, this does not necessarily mean the Basic Law was breached because there are grey areas when it comes to cross-border criminal investigations.

      Certainly an abduction and forced rendition by mainland officials would constitute a serious infringement of the “one country, two systems” principle, but there are multiple ways to cause someone to cross the border. A chat in acha chaan teng, a phone call or a text message may be all that is needed to incite a person to make the trip... Click here to read the full article.

"Experts sceptical at Gui Minhai's 'illogical' surrender"

Jeffie Lam and Eddie Lee

South China Morning Post

19 January 2016

A person on a suspended jail term on the mainland cannot leave the country without official permission and authorities would not only keep a close watch on anyone fleeing but make a real effort to track them down, say legal experts. Once the law caught up with the offender, he would have to serve his sentence in prison.

     This was why legal eagles and observers said they found it mystifying, and unconvincing, that Gui Minhai had eluded arrest for more than 12 years and decided to turn himself only now and – of all places – while in a foreign land.

     Gui – one of the five missing shareholders and staff of publishing house Mighty Current which is linked to Causeway Bay Books – disappeared in mid-October after he was last seen at his apartment in the seaside town of Pattaya in Thailand.

     On Sunday night, he appeared in a recorded interview broadcast by China Central Television, in which he said he had surrendered out of guilt for killing a 23-year-old student while drink-driving in Ningbo, Zhejiang province, in 2004. The confession contrasted starkly with the widely held suspicion that he was abducted by mainland law enforcement agencies in Thailand for selling books that are banned by China.

     Professor Fu Hualing, a legal expert on the mainland criminal justice system, said he found it “totally illogical” for Gui to turn himself in now, after being on the run for so long.

     “It is very shocking that after so many years Gui voluntarily went back,” said Fu. “A person, after so many years, suddenly finds his conscience and wants to return. What I can say is we have an official story but what else … is anybody’s guess.”

     Fu said the personal freedom of people on a suspended prison term would be curtailed and they could not leave the country lawfully without official permission. Should the person violate the condition, as in Gui’s alleged case, he or she would be placed on the wanted list immediately and would have to serve the original sentence in jail... Click here to read the full article.

"Hong Kong's Missing Booksellers Expose Publishing Underbelly"
David Tweed and Ting Shi
Bloomberg
20 January 2016

Sandwiched between a pharmacy and a discount clothing store in Hong Kong’s Causeway Bay neighborhood is a narrow staircase leading to a shuttered bookshop that has become a symbol of the fears of China’s encroachment in the former British colony.

     Causeway Bay Books is one of the city’s best known “upstairs bookshops,” which sell titles such as “Overseas Mistresses of the Chinese Communist Party,” and “Secrets of Wives of CCP Officials” to mainland tourists hungry for the salacious and often thinly sourced tales about the alleged peccadilloes of their leaders. Outside hangs a sign in Chinese warning would-be customers to “watch out for police.”

     The store, located in the shadows of one the world’s priciest shopping districts, has been shut since late December when its owner Lee Bo vanished from the city. With Hong Kong authorities pressing for information, Chinese police confirmed Jan. 18 that Lee was in the mainland, without explaining how the bookseller got across the border without the required travel permit or the knowledge of Hong Kong immigration.

     “A disappearance off the streets raises questions in ordinary people’s minds about the future of Hong Kong and whether its distinctive qualities with which most Hong Kong people identify will be maintained,” said Michael Davis, a Hong Kong University law professor... Click here to read the full article.

Maisie Ooi Interviewed on the Yung Kee Cross-Border Winding Up Decision (SCMP)

"Court's winding-up ruling on Hong Kong's Yung Kee goose restaurant sends signal to offshore companies"

Jasmine Siu
South China Morning Post
20 December 2015

Hong Kong’s top court recently gave the go-ahead for the parent company of the famous Yung Kee roast goose restaurant in Central to be wound up, despite it being incorporated in the British Virgin Islands.

     The landmark ruling clarified local courts’ jurisdiction over foreign companies. Members of the legal fraternity are expecting more similar cases as the city develops into a dispute resolution hub, but questions are also being raised as to how the order will take effect.

     “This Court of Final Appeal judgment is instrumental to Hong Kong’s development as a dispute resolution centre,” William Wong Ming-fung SC told the Post. “This is very good for Hong Kong.”

     Wong, who specialises in company and insolvency law, said many firms initially incorporated offshore to evade local taxes and conceal identities and assets in tax havens like the BVI...

     Dr Maisie Ooi, a company law professor at the University of Hong Kong, said the judgment is “clearly very important” as it sheds light on a cross-border issue not judicially considered before in Hong Kong and elsewhere.

     “It is an important decision in a world where corporations and their transactions are increasingly crossing jurisdictional borders,” she said. “The Court of Final Appeal has by this decision clearly signalled that Hong Kong courts are prepared to wind up foreign companies in appropriate cases.”

     Ooi said shareholders and their lawyers may look quite keenly to Hong Kong courts to process their petitions. But she wondered how the order can take effect without the cooperation of BVI courts and authorities, when both the company and its sole asset are outside of Hong Kong... Click here to read the full article.

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 5, No. 8: 28 September 2015

Table of Contents

1. Role of the Criminal Law in Maintaining Hong Kong as an International Financial Centre
Simon N. M. Young, The University of Hong Kong - Faculty of Law

2. Problems of Judicial Recognition and Enforcement in Cross-Border Insolvency Matters between Hong Kong and Mainland China
Emily Lee, The University of Hong Kong - Faculty of Law

3. Sentencing
Simon N. M. Young, The University of Hong Kong - Faculty of Law

4. Judicial Review of Elections in Hong Kong: Resolving a Contradiction
Simon N. M. Young, The University of Hong Kong - Faculty of Law

5. Rethinking the Process of Political Reform in Hong Kong
Simon N. M. Young, The University of Hong Kong - Faculty of Law

6. Mediation in China: Towards a Modernised and Harmonised Framework for International Commercial Mediation
A. K. C. Koo, The University of Hong Kong - Faculty of Law

7. Ten Years after Halsey
A. K. C. Koo, The University of Hong Kong - Faculty of Law

8. Human Rights, the Rule of Law and Democracy: Recent Experience of Hong Kong and China
Johannes M M Chan, The University of Hong Kong - Faculty of Law

Cross-border Implications of Chinese Police Brutality

The recent trial of the men who attacked news editor, Kevin Lau, raised the issue of police brutality on the Chinese mainland in cross-border criminal cases. Without a fugitives surrender agreement, there is little law to govern the capture and return of suspects from the mainland to Hong Kong. Important legal questions remain unclear. Do suspects enjoy Basic Law rights while being questioned by mainland officers? What are the consequences in Hong Kong if those rights are violated? Common law rules of evidence require that a confession given to a person in authority must be proven to be voluntary to be admissible, meaning proof of the absence of threats, inducements and oppression when the statement was taken. A statement taken in Hong Kong may appear to be voluntary but can still be excluded if oppression from the mainland interrogation taints the Hong Kong investigation. 

     Beyond excluding confession evidence, which the prosecution may not need, are there other implications for the criminal trial? At one time common law courts paid little attention to police violence unless the conduct compromised the quality of the evidence or violated a defendant’s right to silence. Courts now show greater concern with how cases have been investigated and pursued. Judges have a duty to ensure “that the integrity of the judicial system is not compromised” and that the “administration of justice is not brought into disrepute” (HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232, [18]). Serious police illegality or misconduct may amount to “an affront to the public conscience” and require the criminal proceedings to be judicially stayed, meaning permanently suspended (HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, [149]).

     While the law here is still developing, recent Canadian cases have held that police brutality can amount to an abuse of process warranting a stay of proceedings. In R v Bellusci [2012] 2 SCR 509, the defendant prisoner was charged with intimidating a guard; the charge was stayed because the guard in revenge had grievously assaulted the prisoner, who was handcuffed and shackled. In R v Tran (2010) 103 OR (3d) 131 (CA), very serious home invasions charges were stayed where the defendant, after turning himself in, was beaten by two officers who broke Tran’s jaw and tried to conceal their misconduct. In a robbery case, R v Singh, 2013 ONCA 750, the court wrote: “society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions”. Three officers were involved in the beating and one said to the defendant, “sorry…It’s part of my job”, to which the court said, “It is not.” Cases have also accepted that police brutality can justify a reduction in sentence (R v Nasogaluak [2010] 1 SCR 206).

     Following the approach of these cases would be a strong affirmation of judicial integrity and the rule of law. But the greater hurdle in any case will be to convince the court that the abuse did in fact take place.  Written by Simon Young.  An edited version of this article was published in the South China Morning Post on 22 September 2015 with the online heading of "Upholding the rule of law: abuse of defendants no longer 'part of the job'".