Showing posts with label Peter Chau. Show all posts
Showing posts with label Peter Chau. Show all posts

Friday, September 20, 2024

Peter Chau on The Comparative Account of Tort Reparation (Ratio Juris)

"The Comparative Account of Tort Reparation"
Peter Chau
Ratio Juris
Published online: August 2024

Abstract: How can tort reparation be justified? Stephen Perry's comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their “relative degree of fault.” Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. I argue, to the contrary, that such cases pose a serious difficulty for the account.

Monday, May 6, 2024

Peter Chau on Tort Law and Contractualism (Law and Philosophy)

"Tort Law and Contractualism"
Peter Chau
Law and Philosophy
Published online: April 2024

Abstract: How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops a new version of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory.

Tuesday, March 19, 2024

Peter Chau on Commentary on “Responsibility for Health and the Value of Choice” (Palgrave Macmillan Book Chapter)

"Commentary on “Responsibility for Health and the Value of Choice”"
Peter Chau
in Hon-Lam Li (ed), Lanson Lectures in Bioethics (2016-2022): Assisted Suicide, Responsibility, and Pandemic Ethics, (Palgrave Macmillan Cham, February 2024), pp. 109–120
Published online: February 2024

Abstract: This chapter is a commentary on T. M. Scanlon’s Lanson Lecture in Bioethics. It discusses whether the existence of disagreement affects the justifiability of “libertarian paternalism” and whether Scanlon’s “Value of Choice” account fits better with our considered judgments on allocation of health resources than luck egalitarianism.

Monday, February 5, 2024

Peter Chau and Lusina Ho on Agreement and Restitutionary Liability for Mistaken Payments (OUP book chapter)

"Agreement and Restitutionary Liability for Mistaken Payments"
Peter Chau, Lusina Ho
in Sagi Peari (ed.), Warren Swain (ed.), Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory, (Oxford University Press,December 2023),pp. 181-200
Published online: December 2023

Abstract: This chapter considers two recent attempts that claim a defendant’s actual or hypothetical agreement as grounds for restitutionary liability for mistaken payments. With respect to Alexander Georgiou’s attempt based on an actual but tacit agreement, it argues that his account: (1) confuses the motivating causes of the payment with the terms of the payment; (2) rests on a long chain of inference that raises doubt as to the general applicability of his argument to cases of mistaken payment; and (3) offers little guidance on when restitutionary liability should be imposed. With respect to Titiana Cutts’s argument, which is inspired by TM Scanlon’s idea of reasonable agreement, the chapter argues that: (1) the principles considered in her contractualist pairwise comparison are unduly limited and (2) the considerations she takes into account in deciding between principles, such as the security of a party’s plans and the impact on people with limited means, are not specific enough for her conclusion. For example, these considerations cannot explain why reasonable people must choose a principle that gives payors who paid upon a relevant mistake a general right to restitution, but not when they paid upon a misprediction.

Wednesday, August 5, 2020

Congratulations to HKU Law Scholars Awarded Tenure in 2020

Congratulations to Kelvin Kwok, Dr Peter Chau and Dr Shitong Qiao on being awarded tenure and the title of Associate Professor at HKU's Faculty of Law.
     The Faculty of Law is the longest established law school in Hong Kong. It adopts a rigorous process of external review for all tenure and promotion applications. The award of tenure is a recognition of the all-round excellence in research, teaching, service and knowledge exchange demonstrated by these individuals in their years as tenure-track assistant professors.
     Kelvin Kwok researches in the areas of competition law and consumer protection. He has been the principal investigator of two General Research Fund (GRF) grants awarded by the Hong Kong Research Grants Council. He was awarded the Faculty Research Output Prize 2015 and the King’s/HKU Fellowship Award 2018-19. He has served as an editor of the Oxford University Commonwealth Law Journal, Hong Kong Law Journal, and China Antitrust Law Journal
     Dr Peter Chau researches in the area of legal theory, initially on the topic of criminal punishment and now increasingly on private law areas such as tort law. He  received two GRF grants. From 2015 to 2017, his funded project was on “Proportionality in Criminal Punishment”. In 2018, he obtained a grant on “Examining Non-Instrumental Justifications for Tort Compensation”.
      Dr Shitong Qiao is well-known for doing research in  Chinese property law and theory.  He was the Ken Young-Gak Yun & Jinah Park Yun Visiting Assistant Professor of Law at Duke University in Spring 2019 and the inaugural Jerome A. Cohen Visiting Professor of Law at NYU in Spring 2020. His monograph, Chinese Small Property: The Co-Evolution of Law and Social Norms, was published in 2017 by Cambridge University Press and won the inaugural Masahiko Aoki Award for Economic Paper from Tsinghua University. In dissertation form, it won the Judge Ralph K. Winter Prize (awarded annually to the best student paper written in law and economics at Yale Law School).  All the very best to our three colleagues as they move on to the next phase of their academic careers.

Saturday, October 5, 2019

Peter Chau Comments on Hong Kong's New Anti-Mask Regulation

The Chief Executive in Council made the Prohibition on Face Covering Regulation (hereafter referred to as “the Regulation”) under the Emergency Regulations Ordinance (Cap. 241) yesterday. The regulation came into force at midnight, 5 October 2019. 
     It is regrettable that violence has been escalating on the streets. Whatever their legitimate grievances, the violence used by some protesters cannot be justified. However, this short note is not about whether the acts of the protesters are justified. It is concerned solely with the narrow question of whether the Regulation is a good response. I set out my reservations below. 

The offences 
The Regulation, amongst other things, creates two offences. 
     The first offence is created under section 3(2) of the Regulation. To simplify a little bit, a person commits this offence if that person uses any facial covering that is likely to prevent identification while the person is at (a) an unlawful assembly; (b) an unauthorized assembly; (c) a public meeting that is not prohibited by the Commissioner of Police; or (d) a public procession that is not prohibited by the Commissioner of Police. There is a defence of lawful authority or reasonable excuse under section 4. The maximum penalty is a fine at level 4 (HK$25,000 at the time of writing) and imprisonment for 1 year. 
    The second offence is created under section 5(3) of the Regulation. Under section 5(2), a police officer can require a person to remove his facial covering to enable the officer to verify the identity of the person, if that person is in a public place and is using a facial covering that the officer reasonably believes is likely to prevent identification. If that person fails to comply with the requirement, he commits the offence under section 5(3). The maximum penalty is a fine at level 3 ($10,000 at the time of writing) and imprisonment for 6 months. 
     This note will focus on the offence under section 3(2). 

The substantive merits of the section 3(2) offence 
One glaring point about the section 3(2) offence is that it does not only forbid the usage of facial covering in assemblies that are illegal (situations (a) and (b) above). It also forbids usage in meetings and processions that are lawful (situations (c) and (d) above). It is worthwhile to observe that so called anti-mask offences around the world do not always take this form. For example, under sections 65(2) and 66(2) of the Canadian Criminal Code, it is an offence for a person to, without lawful excuse, wear a mask or other disguise to conceal his identity when participating in an unlawful assembly or a riot. However, it is not an offence under the Canadian Criminal Code to conceal one’s identity when participating in a lawful assembly (unless he has an intent to commit an indictable offence – see section 351(2)). A natural question we may ask about the section 3(2) offence is why should it be drafted with such a wide scope? Why should we not adopt the Canadian model and ban facial coverings only in illegal assemblies? 
     In light of the regrettable polarization of the Hong Kong community and the increasing politicization of the business world, one can have a legitimate fear for retaliation (against oneself or one's family members) when one expresses one’s political preferences in public. The section 3(2) offence would, therefore, have a serious chilling effect on our right to expression: it is a very significant cost that must be squarely recognized. Of course, it may be argued that it is a worthwhile price to pay because a narrower offence, like one based on the Canadian model, would be much less effective in deterring violence. But not much evidence has been provided for this by the government. 

Other issues: manner of creating the offences and political reaction 
Two other issues are worth mentioning. First, the manner of creating the offences is obviously less than ideal. Given that anti-mask offences can take many different forms with different degree of abrogation of our rights, the issue of whether (and if so which) anti-mask offences should be created involves a delicate balancing exercise. One may question the wisdom of making the offences hastily without proper consultation. 
     Second, regardless of the substantive merits of the Regulation, I am not sure if it is wise, given the controversial nature of anti-mask law and the extremely hostile attitude the protesters have towards it, to add fuel to the fire at present, if the most pressing need is to restore peace and order. Members of the public and the police who are targets of violence deserve our sympathy; precisely because of this, it is of utmost importance that the government does not choose a means that can be counter-productive: as it is sometimes said, the road to hell is paved with good intentions. Written by Peter Chau.

Thursday, August 29, 2019

HKU Excellence Awards 2018 (Faculty of Law Awardees)

Congratulations to all Faculty of Law colleagues who were recognised in the HKU Excellence Awards 2018.
OUTSTANDING YOUNG RESEARCHER AWARD
Miss Cora CHAN Sau Wai, Department of Law
Dr GU Weixia, Department of Law

KNOWLEDGE EXCHANGE EXCELLENCE AWARD
'Introducing the Special Needs Trust to Hong Kong'

FACULTY TEACHING AWARDS
Dr Peter CHAU Siu Chun, Department of Law
Ms Daisy CHEUNG Tin Muk, Department of Law
Dr Eric IP Chi Yeung, Department of Law

RESEARCH OUTPUT PRIZE
Chinese Small Property: The Co-Evolution of Law and Social Norms
By Dr QIAO Shitong, published by CUP 2017, 230 pp

FACULTY KNOWLEDGE EXCHANGE AWARD
'Introducing the Special Needs Trust to Hong Kong'

More details of the 2018 HKU awards can be found here.  To view the video clips of the ceremony, Outstanding Young Researcher Awards and Knowledge Exchange Excellence Award, click here.

Thursday, September 27, 2018

Peter Chau on Punishment and Bad Upbringing (Criminal Justice Ethics)

"Punishment and Bad Upbringing"
Peter Chau
Criminal Justice Ethics
July 2018, Vol 37, Issue 2, pp 103-121
Abstract: This article examines whether bad upbringing (or what is sometimes called a “rotten social background”) affects just or deserved punishment. There are two possible rationales for this claim. First, it may be argued that an offender’s blameworthiness for his choice to offend is reduced if he had a bad upbringing; second, it may be argued that fairness requires us to impose a less severe punitive burden on an offender with a bad upbringing, even if he is no less blameworthy for his crime. The article rejects both of these rationales.

Friday, July 13, 2018

RGC Awards $6 Million in Research Grant Funding to HKU Faculty of Law

Congratulations to our 11 colleagues who were successful in the 2018-2019 round of research grant funding by Hong Kong's Research Grants Council (RGC).  The success rate for General Research Fund (GRF) projects was 73%, a little better than last year.  The projects cover a range of legal topics of importance to Hong Kong, China and beyond.  This year the largest grant was awarded to Dr Richard Wu for his ongoing and expansive study of law student values.  This is the fifth RGC grant Dr Wu has received in support of his comparative study of law students in 14 jurisdictions.  The details of the new 11 GRF projects are as follows:

Thursday, April 5, 2018

Peter Chau on Hoskin's New Benefit-Fairness Theory of Punishment (Crim L & Philosophy)

"Hoskins’s New Benefit-Fairness Theory of Punishment"
Peter Chau
Criminal Law and Philosophy
published online, 17 Mar 12018, pp. 1-13
Abstract: The benefit-fairness theory of punishment (sometimes referred to simply as the “fairness” theory of punishment), which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment.

Monday, August 28, 2017

HKU Law Faculty Members Comment on the Recent Jailing of Hong Kong Protesters

Julia Hollingsworth and Chris Lau
South China Morning Post
25 August 2017
On the night of September 26, 2014, amid the glare of television cameras and floodlights, student leader Joshua Wong Chi-fung leapt onto a fence around ­government headquarters in ­Admiralty.
     As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow ­student leader Alex Chow Yong-kang, galvanised others into ­action...
     Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.
     The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s ­independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics...
     The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said. “This is natural. You see it in other societies,” he said...
     But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.
     Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role...
     His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers...

Cliff Buddle
South China Morning Post
27 August 2017
The jailing of three prominent student leaders involved in Hong Kong’s Occupy protests has sparked a crisis of confidence in the city’s legal system and rule of law...
     University of Hong Kong law professor Simon Young said there should be more transparency in situations where the secretary for justice overrules senior prosecutors. In Canada, he said, there is a legal requirement that public notice be given when the Attorney General takes over control of a prosecution from the DPP. “It tells everyone I am intervening here, I am taking over. That will naturally have possible political implications and can attract the scrutiny of parliament. At least there is transparency. We don’t have that here,” Young added...

Catherine Lai
Hong Kong Free Press
24 August 2017
Hong Kong’s justice secretary has defending the jailing of three democracy activists, slamming claims that it amounted to political persecution...
Law professor Johannes Chan said during a Commercial Radio programme in response to Yuen’s comments that he accepted his explanation for the timing of the review, but Yuen should explain in detail whether the DOJ’s decision to review the sentences were mixed with considerations outside of legal ones – in order to dispel citizen’s concerns.
     In a column on Wednesday, Chan said that the first magistrate’s decision to hand down a lenient sentence, as well as the Court of Appeal’s decision to give a deterrent sentence, were both within the judiciary’s scope of discretion.
    “Even if we don’t agree with the Court of Appeal’s final judgement, it should not influence our belief in the judiciary’s independence,” he wrote...


Sunday, July 9, 2017

Peter Chau Critiques Loss-Based Retributive Justifications of Punishment (OJLS)

"Loss-Based Retributive Justifications of Punishment"
Peter Chau
Oxford Journal of Legal Studies
May 2017, Advance Article
Abstract: Retributive justifications of punishment that focus on the gain of offenders, like those offered by Herbert Morris and Jeffrie Murphy, have been subjected to sustained and persuasive criticism. Three authors (Daniel McDermott, Richard Lippke and Göran Duus-Otterström) have, in their fairly recent works, offered retributive justifications of punishment that focus instead on the loss suffered by victims. I will argue that these loss-based justifications, despite their ingenuity, suffer from serious defects.

Thursday, October 6, 2016

Peter Chau on Bennett's Expressive Justification of Punishment (Crim L & Philo)

"Bennett's Expressive Justification of Punishment"
Peter Chau
Criminal Law and Philosophy
2016, First Online May 2016, pp 1-19
Abstract: In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to establish the following claims: (1) punishment is the only symbolically adequate response to a wrongdoing; and (2) punishment is permissible if it is the only symbolically adequate response to a wrongdoing.

Tuesday, July 5, 2016

New Book: The Integrity of Criminal Process (Hart Publishing)

The Integrity of Criminal Process: From Theory into Practice
Editors: Jill Hunter, Paul Roberts, Simon NM Young, David Dixon
Hart Publishing
July 2016, 448 pp
Description: Criminal proceedings, it is often now said, ought to be conducted with integrity. But what, exactly, does it mean for criminal process to have, or to lack, 'integrity'? Is integrity in this sense merely an aspirational normative ideal, with possibly diffuse influence on conceptions of professional responsibility? Or is it also a juridical concept with robust institutional purchase and enforceable practical consequences in criminal litigation? The 16 new essays contained in this collection, written by prominent legal scholars and criminologists from Australia, Hong Kong, the UK and the USA, engage systematically with - and seek to generate further debate about - the theoretical and practical significance of 'integrity' at all stages of the criminal process. Reflecting the flexibility and scope of a putative 'integrity principle', the essays range widely over many of the most hotly contested issues in contemporary criminal justice theory, policy and practice, including: the ethics of police investigations, charging practice and discretionary enforcement; prosecutorial independence, policy and operational decision-making; plea bargaining; the perils of witness coaching and accomplice testimony; expert evidence; doctrines of admissibility and abuse of process; lay participation in criminal adjudication; the role of remorse in criminal trials; the ethics of appellate judgment writing; innocence projects; and state compensation for miscarriages of justice.

"Introduction: Re-examining Criminal Process Through the Lens of Integrity"
Paul Roberts, Jill Hunter, Simon NM Young and David Dixon
This book explores the relationship between integrity and criminal process. By ‘criminal process’ we mean, roughly speaking, the institutions, procedures and practices constituting official responses to suspected criminal wrongdoing, encompassing criminal investigations, prosecutions, trials, appeals and extraordinary post-conviction procedures. We do not extend our analysis to ‘the penal system’ and the treatment of convicted offenders, largely on pragmatic rather than theoretical grounds. The book’s central thesis is that ‘integrity’ offers a powerful conceptual lens through which the criminal process in its entirety, or selected phases or aspects of it, can be viewed and critically re-examined. Our general approach could in principle be extended to penality at large, but we had to stop somewhere to keep the volume within reasonable bounds, and adjudication marks a natural temporal break- point, distinguishing the participation of suspects, victims, witnesses and the accused in the investigative process and at trial from the treatment of convicted offenders in the penal system...

"A Public Law Conception of Integrity in the Criminal Process"
Integrity has become a prominent theme in current discourse on the criminal process. It is referred to in cases involving police or prosecutorial misconduct. Courts increasingly make reference to integrity as a ground for ordering relief against and for the government. Integrity lies at the heart of the entrapment and abuse of process doctrines. What more can be expected of the integrity principle will depend on a proper understanding of its scope and meaning. The principle is said to be ‘an influential but also a puzzling principle of criminal justice’. What is the relationship between integrity and human rights? And what is its relationship to notions such as public confidence in the administration of justice, disrepute, accountability and legitimacy? Does it mean anything more than having minimum standards of conduct (and if so, when and in what context), and again is this anything different from a rights-based approach to criminal process? Does it refer to having coherence in the system and if so, coherent by what underlying premises?...

"Integrity, Immunity and Accomplice Witness Testimony"
The use of immunised accomplice witnesses by the prosecution has long been a feature of criminal trials in England and those jurisdictions such as Hong Kong which adopted the English criminal justice system. This practice has been disparaged as ‘unsavoury’ and ‘distasteful’, even ‘unethical’, but ‘turning Queen’s evidence’ in return for immunity from prosecution has been regarded as a ‘necessary evil’ and legally sanctioned as an essential tool in the fight against serious crime. This is particularly true of those forms of criminal activity which normally take place in secrecy, such as trafficking in dangerous drugs, terrorism, fraud and—the subject of this chapter—corruption-related offences...

"Stays of Prosecution and Remedial Integrity"
It is well established in the United Kingdom, Australia and Hong Kong that where a court finds there has been an abuse of process by the prosecution it has an inherent power to order the criminal proceedings to be stayed permanently. A stay of proceedings may be permitted on two bases. An application may be made on the basis that a fair trial is not possible (for reasons such as pre-trial publicity or delay), or on the much rarer basis that whilst a fair trial is possible the application for a stay should be granted anyway as the criminal justice system would otherwise be affronted. This chapter focuses on the latter kind of stay...

"Excluding Integrity?  Revisiting Non-Consequential Justifications for Excluding Improperly Obtained Evidence in Criminal Trials"
This chapter revisits non-consequentialist justifications for excluding a piece of reliable evidence which is improperly obtained (say, through torture or an illegal search) in criminal proceedings. By non-consequentialist justifications, I refer to principles which claim that the improperly obtained evidence should be excluded even if by doing so we do not produce any further good contingent consequences such as deterrence of misconduct by investigatory agents. The two most prominent non-consequentialist justifications offered in the literature are the protective principle and the integrity principle...

Thursday, July 2, 2015

Congratulations to RGC Research Grant Awardees (Faculty of Law)

Congratulations to Shahla Ali, Antonio Da Roza, Peter Chau, Hualing Fu, Marco Wan and Richard Wu on their successful 2015-2016 General Research Fund grants awarded by Hong Kong's Research Grants Council.  A range of interesting projects are funded including projects on civil mediation reform, unrepresented civil litigants, criminal punishment philosophy, Chinese public interest lawyers, law and film in Hong Kong, and a comparative study in Asia of law students' perception of values.  This year's excellent results represent a success rate of 55 per cent and a total amount of funding of more than HK$3.6 million.