New Issue of Hong Kong Journal of Legal Studies (Volume 19, 2025)

HONG KONG JOURNAL OF LEGAL STUDIES

Volume 19, 2025

Editors-in-Chief: Hai Du, Arthur Chan

Publisher: University of Hong Kong Faculty of Law

TABLE OF CONTENTS

Preface
Hai Du and Arthur Chan...i


Article

Termination over Modification: Addressing Circumstantial Changes in the Chinese Civil Code

Xixi Xiang...1

Case Notes

Reconsidering Re Chime in Light of Ntzegkoutanis v Kimionis
Holly Leung and Kenneth Ip...29

Hague Convention Article 13(2): New Procedural Choice and Orthodox Use of Discretion in Re M (Child Abduction) [2024] 5 HKLRD 658, [2024] HKCFI 2821

Justin Wan Chan...45

New Issue of Hong Kong Journal of Legal Studies (Volume 18, 2024)

HONG KONG JOURNAL OF LEGAL STUDIES

Volume 18, 2024

Editors-in-Chief: Megan Louie, Prakritee Yonzon

Publisher: University of Hong Kong Faculty of Law

TABLE OF CONTENTS

Foreword
Ms. Olga Boltenko...i

Preface
Megan Louie and Prakritee Yonzon...iv

Rethinking Lasmos: The effect of Arbitration Clauses on Insolvency Proceedings in Hong Kong
Zhang Jiaqi...1

The Anatomy of the Six-Step Sentencing Approach for Drug Trafficking: Consolidating Herry Lane Yusuph, Lee Ming Ho, and Raman Kapusamy
Jonathan Chung Wa Ho, Justin Chan Wan...31

The next step after Sham: Why and how will civil partnerships be introduced in Hong Kong? Further, will same sex marriage be recognized in Hong Kong?
Ip Chin Victoria...65

Curbing Trademark Bullies through Compensation Liability: The Approach of Chinese Judges in the Anti-Counterfeit Bulk Lawsuits of Trademark Infringement
Junsong Feng...89

Pets in Protection Orders: A Comparative Analysis of Four Common Law Frameworks and Recommendations to Expand Hong Kong’s Animal Law Regime
Shi Tao Zhang...121

Zhang Jiaqi on Rethinking Lasmos: The effect of Arbitration Clauses on Insolvency Proceedings in Hong Kong (HKJLS)

"Rethinking Lasmos: The effect of Arbitration Clauses on Insolvency Proceedings in Hong Kong"
Zhang Jiaqi (BBA(Law)&LLB)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 1 - 29

Abstract: When the Companies Court in Hong Kong examines a winding-up petition on insolvency grounds, and the debt that is relied on contains a valid arbitration clause, what is the correct approach for the Court so as to balance all competing interests and achieve a fair and reasonable outcome? This seemingly vanilla question has given rise to enormous debates and uncertainties in a variety of common law jurisdictions, including Hong Kong, Singapore, and the UK. This paper aims to present the development on the area of law, reconcile the competing values underlying arbitration and insolvency, and propose an ideal standard to be adopted by the Hong Kong courts. It also makes observations on judicial practices of Hong Kong courts on this issue since 1997, which may offer some insights to practitioners when drafting agreements which are governed by Hong Kong law and contain an arbitration clause.

Jonathan Chung Wa Ho and Justin Chan Wan on The Anatomy of the Six-Step Sentencing Approach for Drug Trafficking (HKJLS)

"The Anatomy of the Six-Step Sentencing Approach for Drug Trafficking: Consolidating Herry Lane Yusuph, Lee Ming Ho, and Raman Kapusamy"
Jonathan Chung Wa Ho and Justin Chan Wan (BSocSc (Government and Laws) and LLB)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 31 - 64

Abstract: The recent cases of HKSAR v Lee Ming Ho and HKSAR v Raman Kapusamy contribute crucial clarity to the sixstep sentencing approach formulated in HKSAR v Herry Jane Yusuph. This trio of trafficking cases chart a course for Hong Kong’s move away from a prescriptive arithmetical drug sentencing policy, and towards a more discretionary, structured and individualised assessment of culpability. By offering a consolidation of these three cases, we analyse the core rationale adopted by the Hong Kong Court of Appeal, and the potential extension of

such to subsequent cases when the six-step approach operates in tandem with pre-existing sentencing principles. We focus our analysis on the delineation between ‘role and culpability’ and ‘aggravating factors’, the availability of mitigating factors, and the overall proportionality assessment required by the principle of totality.

Ip Chin Victoria on The next step after Sham: Why and how will civil partnerships be introduced in Hong Kong? Further, will same sex marriage be recognized in Hong Kong? (HKJLS)

"The next step after Sham: Why and how will civil partnerships be introduced in Hong Kong? Further, will same sex marriage be recognized in Hong Kong?"
Ip Chin Victoria (BSocSc (Government and Laws) & LLB)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 65 - 87

Abstract: Pursuant to the Court of Final Appeal’s judgment Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28, it is the responsibility of the HKSAR Government to put in place an alternative legal framework that recognises same-sex partnerships with appropriate rights and protections attendant on such recognition within two (2) years. This essay aims to explore questions in relation to how might the Government propose the alternative legal framework, and eventually whether same-sex marriage will be legalised in Hong Kong by comprehensively analysing the judgment of Sham, as well as social and political factors that may influence the Government’s decision.

Junsong Feng on Curbing Trademark Bullies through Compensation Liability (HKJLS)

"Curbing Trademark Bullies through Compensation Liability"
Junsong Feng (LLM)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 89 - 120

Abstract: In mainland China, trademark bullying and anticounterfeiting campaigns are clearly intertwined and are mainly enforced by professional anti-counterfeiters by filing bulk lawsuits against small businesses at the end of the counterfeiting chain. This strategy distorts the original purpose of anti-counterfeiting efforts. This paper compares this issue to the situation in the United States and analyses the Chinese judiciary’s current response through a quantitative analysis of publicly available court documents. The measures envisaged by the judiciary are to utilise the rules of statutory damages and the legitimate source defense to direct the battle of the anti-counterfeiting campaign to the source of counterfeit. This paper analyses this judicial response and makes suggestions for its improvement.

Shi Tao Zhang on Pets in Protection Orders: A Comparative Analysis of Four Common Law Frameworks and Recommendations to Expand Hong Kong’s Animal Law Regime (JKJLS)

"Pets in Protection Orders: A Comparative Analysis of Four Common Law Frameworks and Recommendations to Expand Hong Kong’s Animal Law Regime"
Shi Tao Zhang (Exchange Student)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 121 - 147

Abstract: As women’s liberation and animal rights gain more popularity in mainstream discourse, the intersection of intimate partner abuse and animal cruelty has emerged as a novel area of law. What happens when one’s significant other hurts their pet during family disputes? If a victim of domestic violence applies for a protection order, can their pet be covered by it as well? This article focuses on the legal recourses and social resources that are available in four common law jurisdictions: the United States, Canada, the United Kingdom, and Hong Kong. Starting with an overview of the connection between animal abuse and domestic violence, it then explores the legal framework and community resources available to victims of domestic violence who want to include their animal in a protection order against their abuser and who want to be sheltered alongside their trusted pet in the United States, Canada, and the United Kingdom. An analysis of the normative principles that underlie these legal regimes is then used to determine the prevailing attitude of the law towards animals. Finally, an overview of Hong Kong’s legal regime on the topic highlights the urgent need for reform and gives way to recommendations formulated through the examination of empirical studies and comparative legal perspectives.