Karen Kong Comments on the CFA's Decision on the Right to Family in the Immigration Context (IACL-AIDC Blog)

"Applying the Right to Family in the Immigration Context of Hong Kong"

Karen Kong

IACL-AIDC Blog
19 June 2019

On 4 April 2019, Children’s Day, the Hong Kong Court of Final Appeal (‘CFA’) delivered the judgment of Comilang, Milagros Tecson & Anor v Director of Immigration [2019] HKCFA 10, but it was by no means a day for celebration for the children involved in this case. The combined appeals were brought by two families. In each case, the appellants included a non-resident mother who was an ex-foreign domestic helper with no right of abode or right to remain in Hong Kong, and her Hong Kong resident or permanent resident minor child(ren). Both mothers were refused application for an extension of stay in Hong Kong to take care of their children. The issue was whether the Director of Immigration had a duty to take into account the family rights of the children and their non-resident mothers with no right to remain in Hong Kong, when considering whether to grant the mothers permission to stay in Hong Kong and be with their children. 

     The parent appellants argued that they and their children enjoyed a right to family under: (i) Art 37 of the Basic Law (the mini-constitution of Hong Kong), (ii) Arts 14, 19(1) and 20(1) of the Hong Kong Bill of Rights (BOR) which incorporates the International Covenant on Civil and Political Rights (ICCPR), (iii) Art 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and (iv) Art 3 of the Convention on the Rights of the Child (CRC). Thus, it was argued, the Director of Immigration had a legal obligation to take into account such rights when considering their applications.

     The CFA ruled against the appellants on all grounds. The Court applied the immigration exception in the Hong Kong Bill of Rights Ordinance (‘HKBORO’) to limit the rights enjoyed by the appellants. As a result, non-resident mothers enjoy very limited human rights protection under the BOR, the Basic Law and other human rights Covenants in the application of immigration legislation in Hong Kong... Click here to read the full post.

Karen Kong on Human Rights Activist Scholars and Social Change in Hong Kong: Reflections on the Umbrella Movement and Beyond (Int'l J H Rts)

"Human rights activist scholars and social change in Hong Kong: reflections on the Umbrella Movement and beyond"
Karen Kong
The International Journal of Human Rights
Published Online: 24 Jan 2019

Abstract: The Umbrella Movement in Hong Kong in 2014, which was the city’s largest scale civil disobedience movement, was first initiated by two university professors and a Baptist Reverend. They advocated the use of non-violent civil disobedience to fight for universal suffrage and genuine election of the Chief Executive in Hong Kong. Though the Umbrella Movement did not end up in successfully changing the electoral system of Hong Kong, its impact on students, academics and the civil society was far beyond the few months of occupation. At the same time, activist scholars had to pay the price for their political activism outside the academia. This paper reflects on the experience of activist scholars in the Umbrella Movement, evaluates their roles in pursuing social change, the challenges they faced, and their impact on students, the academia, and the civil society.

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

Vol. 6, No. 6: 23 December 2016

Table of Contents

1.A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong

Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law

Nigel Davis, University of Hong Kong

Douglas W. Arner, University of Hong Kong - Faculty of Law

2. The Limits of Critique and the Forces of Law

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

Scott Veitch, The University of Hong Kong - Faculty of Law

3. Plasticity, Jurisdiction and the Interruption of Sovereignty: A Response to Catherine Malabou Via José Saramago's Seeing

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

4. Narrative, Space and Atmosphere: A Nomospheric Inquiry into Hong Kong's Pro-Democracy 'Umbrella Movement'

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

5. The Nomos of Hong Kong's Umbrella Movement

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

6. A Spirit of the Common: Re-Imagining 'The Common Law' with Jean-Luc Nancy

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

Vol. 7, No. 1: 17 February 2017

Table of Contents

1. 'All for Some' or 'Some for All'? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong 

Karen Kong, The University of Hong Kong - Faculty of Law 

2. Legal Origin and Corporate Governance for Chinese Family Business: Evidence in Hong Kong, Taiwan and Mainland China 

Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences 

3. The Emergence of Transnational Environmental Law in the Anthropocene 

Jolene Lin, University of Hong Kong - Faculty of Law 

4. Towards Peer Presence in Post Disaster Governance: An Empirical Study 

Shahla F. Ali, Deputy Director, Program in Arbitration & Dispute Resolution, University of Hong Kong, Faculty of Law

Karen Kong and Eric Cheung Cited in Story on Hong Kong's "King of Judicial Review" (HKFP)

"Lone fighter: Meet the Cheung Chau resident who has spent a decade battling the Hong Kong gov’t in court"

Ellie Ng

Hong Kong Free Press

5 February 2017

Trying to hold the government to account in court almost always guarantees a David and Goliath scenario: the government has unlimited resources to fight legal battles, while civilians seeking to rectify injustices face systemic obstacles at every step of the judicial process. 

     But in Hong Kong, one man is unfazed by the challenge. Cheung Chau resident Kwok Cheuk-kin – widely known as the “king of judicial review” – has taken the government to court more than 20 times over the past decade, though he has only won once. The talkative 78-year-old may look like an unassuming elderly retiree, but he is a familiar figure to those on the judicial scene. When Kwok posed for pictures in front of the High Court during our interview, several security guards gave him a nod and a smile... Click here to read the full article.

The Right to Social Welfare and Hong Kong's Retirement Protection Reform (HKLJ)

"'All for Some' or 'Some for All'? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong"

Karen Kong
Hong Kong Law Journal
Dec 2016, Vol. 46, Part 3, pp 779-791

Abstract: This article discusses the proposals for retirement protection reform in the public consultation conducted by the Commission on Poverty. It analyses the relevant human rights obligations of the government under the Basic Law and the International Covenant on Economic, Social and Cultural Rights, including the protection of the right to social welfare and the right to an adequate standard of living. It argues that there is a minimum essential level of retirement protection that the government must provide to the elderly in poverty in order to satisfy the human rights obligations, and calls for a more comprehensive human rights impact assessment to be conducted before the implementation of the reform.

Rule of Law Education (ROLE) Project Awarded HKU Faculty Knowledge Exchange Award 2016

We are pleased to announce that the HKU Faculty Knowledge Exchange Award 2016 of the Faculty of Law has been awarded to the Rule of Law Education Project (ROLE).   Launched in April 2012, the project has trained numerous Liberal Studies teachers, secondary school students and social workers and published useful materials on the rule of law.  ROLE has helped to spread knowledge of the rule of law to the public at large. Congratulations to Benny Tai, Johannes Chan, Karen Kong and Isabella Liu.  To learn more about ROLE and watch HKU law students educate secondary school students on the rule of law, watch the video below (in Cantonese).  The ROLE website can be accessed here.

Can Public Interest Litigation Protect the Natural Environment of Hong Kong? (Karen Kong)

"An Uphill Battle for Sustainable Development: Can Public Interest Litigation Protect the Natural Environment of Hong Kong?"

Karen Kong

Hong Kong Lawyer

November 2015, pp. 32-37

With the rapid increase in major development projects and cross-border infrastructure in Hong Kong, striking a proper balance between economic growth and environmental conservation has become an increasingly challenging task. There is a constant battle between different stakeholders on environmental protection issues.

     When an agreement cannot be reached through the legislative and executive channels, people have resorted to taking the issues to the court. Landmark environmental judicial review cases in recent years include: Harbour Reclamation (2004), Hong Kong-Zhuhai-Macau Bridge (2011), Municipal Wastes Incinerator at Shek Kwu Chau (2014), Artificial Beach in Lung Mei (2014), and the upcoming Airport Third Runway (2015). Such litigation initiated by environmental activists is often referred to as Environmental Public Interest Litigation (“EPIL”).

     EPIL is controversial because many believe that environmental controversies should be dealt with through the legislative and the executive branches, not in the court room. EPIL critics argue that the court should not be a forum to debate policy questions.

     However, it is submitted that, despite its limitations and constraints, EPIL still has an important and legitimate role to play in pursuing sustainable development, in view of a political system that often fails to adequately channel the views of the public to the government... Click here to read the full article.

Karen Kong on Using Public Interest Litigation to Protect the Natural Environment

"The Uphill Battle for Sustainable Development: Can the Use of Public Interest Litigation Protect the Natural Environment in Hong Kong?"

Karen Kong

Asia Pacific Law Review

2015, Vol. 23, No. 1, pp. 7-30

Abstract: This article reviews the development of recent environmental public interest litigation in Hong Kong. Despite substantive time and efforts spent on the litigation, the judicial challenges had limited success in yielding the desired outcome that environmental concern groups had hoped for. Reasons behind are complex, which involve litigation strategies, the state of Hong Kong law on environmental protection and sustainable development, and the courts’ attitude towards public interest cases. The article studies the courts’ reasoning and decisions, with a view to evaluating the use of public interest litigation as a tool of environmental advocacy under the current constitutional and administrative regime in Hong Kong. It argues that, despite its constraints, public interest litigation is an important tool to channel the public’s views on the protection of the environment. The article recommends principles to be used in future environmental judicial review, including a purposive approach to interpretation of environmental legislation, with reference to human rights in evaluating environmental issues. Further, litigation is not the sole solution and it needs to be complemented with more up-to-date legislation and environmental standards.  Full text can be download from Lexis.com.

Karen Kong Comments on the Lack of a Right for Refugees to Work in Hong Kong

"Refugees' Right to Work in Hong Kong - Or Lack Thereof: GA v Director of Immigration"
Karen Kong
Oxford University Commonwealth Law Journal
June 2015, Vol. 14, Issue, 2, pp 337-348

Abstract: This paper examines the domestic applicability of human rights treaties in Hong Kong in light of the recent Hong Kong Court of Final Appeal decision of GA v Director of Immigration (2014), which concerned refugees’ right to work. In the absence of a comprehensive domestic incorporation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the immigration exception to the International Covenant on Civil and Political Rights (ICCPR) incorporated through the Bill of Rights, refugees do not enjoy a right to work in Hong Kong, except in some circumstances where forbidding work may amount to inhuman and degrading treatment under the ICCPR. This paper reviews the adequacy of the legal protection of refugees in Hong Kong, and argues for a more comprehensive domestic incorporation of the ICESCR to ensure the applicability of the rights thereunder.  Click here to download the article.

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

Vol. 5, No. 4, 18 May 2015

1. The Yet-to-Be Effective But Effective Tax: Hong Kong's Buyer's Stamp Duty as a Critical Case Study of Legislation by Press Release
Jianlin Chen, University of Hong Kong - Faculty of Law, University of Chicago - Law School

2. Institutional Fragmentation and the Ontological 'Ethos' of International Law as a Legal System in a World Society
Anlei Zuo, The University of Hong Kong, Faculty of Law, Students

3. Refugees’ Right to Work in Hong Kong – Or Lack Thereof: GA v Director of Immigration
Kar Yan Kong, The University of Hong Kong - Faculty of Law

4. Hong Kong's Umbrella Movement: Beijing's Broken Promises
Michael C. Davis, The University of Hong Kong - Faculty of Law

5. Human Rights Lawyering in Chinese Courtrooms
Fu Hualing, The University of Hong Kong - Faculty of Law