Simon N. M. Young
in Yvonne Daly, Jeremy Gans & PJ Schwikkard (eds), Teaching Evidence Law: Contemporary Trends and Innovations (Routledge, 2021), Chapter 10, pp. 122-132
Introduction: Hong Kong was a British colony for one hundred and fifty-five years before it was returned to China in 1997 under a constitutional arrangement known as "one country, two systems". A new apex court, the Court of Final Appeal (CFA), was established in Hong Kong after the abolition of appeals to the Privy Council in London. The previous common law legal system was preserved but not frozen. The International Covenant on Civil and Political Rights remained implemented, almost verbatim, by local legislation as a matter of constitutional imperative. The constitutional instrument, known as the Basic Law, guaranteed that courts could continue to "refer to precedents of other common law jurisdictions" (Article 84), judges could "be recruited from other common law jurisdictions" (Article 92), and "judges from other common law jurisdictions" could be invited to sit on the CFA (Article 82). Indeed, many distinguished senior judges from the United Kingdom (UK), Australia, New Zealand and recently Canada have been appointed non-permanent members of the CFA, sitting in more than 90 per cent of the cases (Young, and Da Roza, 2014, p. 259). Rules for "lawyers from outside Hong Kong to work and practise" in Hong Kong (Article 94( were maintained and extended. Many prominent English silks have been admitted ad hoc as leading counsel on important cases requiring their expertise.
It was to this unique legal environment I migrated from Canada in 2001 to teach Criminal Law and Evidence Law at the University of Hong Kong (HKU). At first, I co-taught Evidence at the undergraduate level, but in 2010, I became the sole teacher of a course in the two year Juris Doctor (JD) programme, eventually leaving undergraduate teaching. In teaching these courses, Hong Kong was like a patch of newly fallen snow. No student textbooks or casebooks on Hong Kong Evidence Law had been published. My Hong Kong Evidence Casebook, published in 2004, was a first. Previous teaching materials were based almost entirely on English evidence cases and little attention was paid to the impact of human rights law (even though our Hong Kong Bill of Rights (HKBOR) had already been in force for a decade). Four years after the handover, the CFA had already shown its preparedness to depart from English authorities.
In 2001, I knew little of Evidence Law teaching other than what I had absorbed from my LLB course at the University of Toronto, which I very much enjoyed. I knew more about fact-finding, having articled with appellate criminal lawyers at the Ministry of the Attorney General for Ontario, before becoming one after a stint as a trial prosecutor in Hamilton, Ontario. With this background, my footprint on HKU teaching was sure to reflect the two aspects of comparative law and legal practice. My knowledge of Hong Kong legal practice grew steadily, from serving as a member of law reform sub-committees on reforming criminal hearsay and the rule against double jeopardy, practicing as a barrister from 2008 and running a continuing legal education programme for Hong Kong prosecutors from 2011 to 2017 (Young 2012 b; Young 2017). Even in these realms comparative law was critical.
In this chapter, I discuss my experience of using comparative law materials and incorporating experiences from legal practice to enrich Evidence Law teaching. As most people now know, the implementation of "one country, two systems" in Hong Kong has not been without its challenges. In the conclusion, I reflect upon whether the civil unrest of 2019, sparked by a proposed bill enabling ad hoc extradition of Hong Kong residents to Mainland China and other places, has implications for the teaching of Evidence in Hong Kong...