Thomas Yeon & Diana Siu on Judicial Control and Interpretation of Emergency Powers: Lessons from Hong Kong (Oxford U Commonwealth LJ)

"Judicial Control and Interpretation of Emergency Powers: Lessons from Hong Kong"

Thomas Yeon (PCLL 2020) & Diana Siu (JD 2021)
Oxford University Commonwealth Law Journal
Published online: 26 Sep 2021

Abstract: This case note examines the judicial controls on emergency powers established by the Hong Kong Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42. It argues that, despite the Court’s promises to the contrary, none of those controls offer a meaningful constraint on the Chief Executive in Council’s power to enact regulations under the Emergency Regulations Ordinance (Cap 241). It also observes that the Court’s flawed articulation of the judicial controls is of cautionary value for courts in the United Kingdom interpreting the Civil Contingencies Act 2004.

Cedric Tang (PCLL 2021, JD 2020) on Liability for Dispensing Errors in Hong Kong (Asian Bioethics Review)

"Liability for Dispensing Errors in Hong Kong"

Cedric Tang (PCLL 2021, JD 2020)

Asian Bioethics Review

Published on 28 May 2021

Abstract: The United Kingdom (UK) case R v Lee (2010) EWCA Crim 1404 resulted in a pharmacist being convicted for an inadvertent dispensing error and paved way for the decriminalisation of such errors by way of a due diligence defence enacted in 2018. In relation to Hong Kong (HK), what is its legal position for dispensing errors, and can it follow the decriminalising steps of UK? The primary objective of this paper is to explore whether and how HK can reach the normative position for a dispensing error legal regime: (1) I posit that the normative position for healthcare professional (HCP) liability for dispensing errors should prioritise the public interest of minimisation of future dispensing errors over the retribution of past wrongs; (2) I illustrate HK’s current position for the liabilities of HCPs on dispensing errors, focusing analysis on the relatively controversial aspects of HK’s criminal liability, referencing the landmark cases Hin Lin Yee v HKSAR (2009) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195 to assist my analysis of the requisite mental element for relevant statutory offences; (3) through comparison with UK’s development post-R v Lee and application of Rule of Law principles, HK’s current position is critiqued, coming to the conclusion that while there are compelling reasons for the decriminalisation of dispensing errors in HK, the prerequisite for this to happen is an overhaul of regulatory frameworks by significantly increasing levels of accountability.

Jiang Zixin (JD 2018) on "Explosive Substances” that cannot Explode? (HKLJ)

“Explosive Substances” that cannot Explode?"
Jiang Zixin (JD 2018) 

Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 15-22

Abstract: In HKSAR v Kwan Ka Hei, the Court of Final Appeal held that an “explosive substance” under s 55(1) of the Crimes Ordinance (Cap 200) (CO) includes “any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect”, applying by analogy the definition under s 2 of the Dangerous Goods Ordinance (Cap 295). This note (1) criticises the court’s view that ss 52 and 54(b) of the CO support this interpretation and (2) argues that insufficient attention was paid to the interaction between the principle that statutes in pari materia should be read together and the principle against doubtful penalisation.

Zixin Jiang on Unifying and Defining ‘Dishonesty’ in the Law of Trusts (Trusts & Trustees)

"Unifying and defining ‘dishonesty’ in the law of trusts"
Zixin Jiang (JD 2018)

Trusts & Trustees
https://doi.org/10.1093/tandt/ttaa021

Published in May 2020

Abstract: In this article, I argue that ‘dishonesty’ should be unified and defined in the law of trusts. I argue: (1) the UK Supreme Court in Ivey v Genting Casinos was correct to reject the Ghosh test for dishonesty and to endorse the Royal Brunei test for all legal contexts; (2) the present law on trustee exemption clauses is inconsistent with Ivey, and Walker v Stones must accordingly be overruled; (3) the subjective factors relevant to dishonesty are reducible to a person’s intentions and beliefs; and (4) ‘dishonest’ assistance of a breach of trust should be defined more precisely in terms of what knowledge is required to hold a defendant liable.

Po Jen Yap and Jiang Zixin on Electoral Disqualification, Political Allegiance, and the Courts (HKLJ)

"Electoral Disqualification, Political Allegiance, and the Courts: A "Fruitless Debate?"

Po Jen Yap and Jiang Zixin (JD 2018)

Hong Kong Law Journal

2019, Vol 49, Part 3, pp 825-834

Abstract: We disagree with the Court of First Instance's decision in Chow Ting v Teng Yu Yan Anne to confer upon the Returning Officer (RO) the power to evaluate the authenticity of election candidates' intentions to uphold the Basic Law and to disqualify those who are deemed disingenuous. In our view, neither the text of s 40(1)(b)(i) of the Legislative Council Ordinance (Cap 542) nor its history indicates that the RO has this power. The Court of Appeal's decision in Chief Executive of HKSAR v President of the Legislative Council is not precedent for this position. The 2016 Standing Committee of the National People's Congress Interpretation also does not mandate this result.

Po Jen Yap & Jiang Zixin on "Co-location is Constitutional" (HKLJ)

"Co-location is Constitutional"

Po Jen Yap and Jiang Zixin (JD 2018)

Hong Kong Law Journal 

2018, Vol. 48, Part 1, pp. 37-50

Abstract: In this comment, we argue that the co-location arrangement proposed by the Hong Kong Special Administrative Region Government is consistent with the Basic Law. Co-location does not engage art 18 of the Basic Law because, for the purpose of art 18, the land comprising the Mainland Port Area (MPA) would no longer be in Hong Kong. This is the legal consequence of the Government’s exercise of its power under art 7 of the Basic Law to relinquish legal control over land. Specifically, the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA in favour of the PRC authorities for customs, immigration and quarantine procedures as (1) co-location is derivative of, and in service to, the Government’s power under art 7 of the Basic Law to lease land; (2) the Government’s aim of achieving efficient high-speed rail interconnectivity between Hong Kong and Mainland China is legitimate; (3) co-location is reasonably adapted to the attainment of this legitimate aim; and (4) co-location does not violate fundamental rights enjoyed by residents living in Hong Kong. Since the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA for co-location, the provisions that deem the MPA outside Hong Kong are constitutional, and therefore, the land comprising the MPA would not be in Hong Kong for the purpose of art 18.

Anita Wu (JD 2013) Defending Tenancy Rights in Chinatown New York

Anita Wu (JD 2013) is a graduate of HKU's 3-year joint JD and LLM programme with the University of Pennsylvania. In 2011-12, she was a student in our clinical legal education programme. After completing her New York bar exam, she interned at Manhattan Legal Services and is now a staff attorney.  In this interview with Robert Precht, founder and president of Justice Labs, Anita describes her work representing low-income tenants.  She is currently representing a 64-year-old disabled Chinese man who requires the use of his building's elevator to reach his seventh floor apartment.  However, the landlord has contracted to replace the elevator requiring a five-month shutdown.  Anita has assisted the client to bring a case in federal court to try to postpone the replacement work as reasonable accommodation for the many elderly and disabled residents in the building.  On 23 February 2016, Ming Pao (NY) Daily reported that the client had obtained a preliminary injunction to stop the cessation of the elevator service and settlement discussions are underway.