New Book: Archbold Hong Kong 2021 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2021

Editor-in-Chief: The Hon Mr Justice Bokhary

General Editor: Professor Simon Young

Sweet & Maxwell

December 2020

Preface by the General Editor

Archbold’s first general editor was John Frederick Archbold. By analogy, Archbold Hong Kong’s first general editor would be considered Hong Kong’s Archbold. Sadly Hong Kong’s Archbold passed away on 28 April 2020. This is a fitting title for Dr Gerard McCoy SC. His encyclopedic knowledge of the law, especially the criminal law, was well known and undoubtedly a matter of judicial notice in many countries. Mr Justice Frank Stock, in his preface to the first edition of this work, described Dr McCoy as “a tireless worker, possessed of a meticulous eye and as well-versed in the principles and detail of the criminal law as one could wish”. Though he appeared for government in a good number of cases, he had a big heart for the underdog and an unrelenting sense of justice. He was also very much reform-minded, which I witnessed having the honour of working with him on two law reform committees and two landmark Court of Final Appeal cases on joint criminal enterprise and refugee non-refoulement. In court, he was as distinguished as any silk who has ever practiced in this jurisdiction, but he was also a compassionate leader who could instantly dissolve the nerves of a junior at the start of a hearing by offering a fist bump with the words ‘Go Team’. He was a lawyer’s lawyer, one who would not hesitate to offer advice, or a case reference, to any fellow member of the bar who sought his assistance. In his practice, he continuously prodded the law, and for that we got to learn so much more about the law, whatever may have been the result in the case. One need only have regard to the cases he handled in his last year to appreciate his unparalleled contribution to the criminal law in Hong Kong. Those cases enhanced our understanding of the right to interpreter assistance in criminal trials (CACC 135/2017; CACC 320/2016), the right to privacy and police searches of mobile phones (CACV 270/2017); remedial interpretation of the Interception of Communications and Surveillance Ordinance (CACC 237/2015), the rule in Browne v Dunn (CACC 65/2017), and the constitutionality of sentences for male buggery offences (CACC 361/2018). This is only a small sample of a corpus of law which he helped to generate. 

    In his preface, echoing the words of Archbold, Dr McCoy wrote that this work would aim “to become ‘a practically useful book’ which identifies and collates the current substantive, procedural, evidential and adjectival criminal law of Hong Kong”. In this spirit, the current edition collates the contents of 《中華人民共和國香港特別行政區維護國家安全法》(Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region), which was applied locally on 30 June 2020. This National Security Law (NSL) is the most important piece of criminal law legislation applied in Hong Kong in recent times, and practitioners are slowly coming to terms with it. The NSL is currently covered across Chapters 2, 5, 15, 19, 26, 41 and 42, but for the future the aim is to capture NSL jurisprudential developments mainly in Chapter 26, concerned with national security offences.

    Hong Kong’s Archbold ended his preface with the four Chinese characters, 金科玉律, which was likely a reference to Viscount Sankey’s “one golden thread” famously penned in Woolmington v DPP [1935] AC 462, 481. It is a fitting reminder that even in the post-NSL era persons charged with a criminal offence are always presumed innocent, the duty being on the prosecution to prove the person’s guilty beyond a reasonable doubt.

    I thank my three able assistant editors (Wilson Lui, Eric Chan, Josh Baker), the entire team of contributing editors who remain so dedicated to this work, the Editor-in-Chief for his wise counsel, and Thomson Reuters (Kevin Stokes, Stephen Blackwell, Abdul Azeem Ali) for all their assistance over the past year.

Professor Simon NM Young

Parkside Chambers

October 2020

HKU Law academics serving as Contributing Editors in this year's volume include Amanda Whitfort (1. The Indictment; 46. Animals), Simon Young (11. The Hearsay Rule; 19. Human Rights), and Michael Jackson (17. Principals and Secondary Parties; 18. Strict Liability).

New Book: Archbold Hong Kong 2020 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2020
Editor-in-Chief: The Hon. Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
December 2019

Preface by the General Editor

Since the anti-extradition bill protests began in June 2019, thousands have been arrested, hundreds charged, and the numbers continue to grow. The public will closely follow these protest-related cases as they enter and make their way through the criminal justice system. Criminal justice in these turbulent times presents new challenges to those who contribute to the administration of justice in Hong Kong. If it were not for the extradition bill and ensuing protests, many students, young people, teachers, professionals and other law-abiding residents would not be caught up in the system. Whether they will feel contempt or respect for the system at the end of their case may well depend on how they are treated within the system. Perceptions of defendants being treated unfairly will have long term consequences for people’s respect for the law and confidence in the administration of justice. 

     A sudden influx of a large number of new cases also comes with its own challenges. Existing resources will be stretched in different ways and delays in the system will follow unless resources are appropriately augmented. Maybe the net increase in cases will not be as great as one might expect as considerable police resources have been diverted from regular policing to policing protesters. 

     Some have wondered whether the circumstances, as extraordinary as they are, call for a general amnesty from prosecution. An amnesty is a controversial political issue that should be debated in the legislature. On one hand, an amnesty suspends the principle of having legal consequences for one’s actions; on the other, it provides an expedient way for society to move on from a period of civil unrest. A continuous stream of delayed and prolonged criminal prosecutions will remind people of the underlying political conflicts and make it difficult to achieve reconciliation. Criminal cases from the civil disobedience protests of 2014 and 2015, which now pale in comparison to the violence seen in 2019, are still making their way through the courts. There are alternatives to an amnesty worth debating. Adopting new limitation periods to the laying of charges for certain offences will help to bring closure within a reasonable time without a wholesale suspension of prosecutions and legal responsibility. An early diversion programme for minor first time offenders is another alternative. 

     At a forum held at the University of Hong Kong in early September, one first-year LLB student asked if he had just joined a “sunset industry”. On the contrary, now more than ever Hong Kong needs dedicated and knowledgeable criminal lawyers to protect the rights of defendants and help them make informed decisions as they navigate through the criminal process. In pursuing resolute and fearless advocacy for one’s client, there is also the importance of civility. All must guard against allowing the incivility on the streets from being replicated in the courtroom. As Justice Moldaver wrote in Groia v Law Society of Upper Canada, 2018 SCC 27 at [67], “incivility can erode public confidence in the administration of justice – a vital component of an effective justice system”. Moreover, civility, rather than incivility, is “often the most effective form of advocacy” (at [76]). 

     If there is anything positive to come from the 2019 protests, hopefully it is greater attention paid by the government and legislators to the issue of youth justice. The number of young people becoming entangled in the criminal justice system is alarming, and their future after a sojourn in the system appears dim. Recent judgments of the Court of Final Appeal have helpfully clarified that young age is “always a relevant mitigating factor” because “the better opportunity for reformation and rehabilitation… must assume greater significance” (Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at [84]; Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at [51]). Legislative reforms are also warranted, beginning with the abolition of section 109A(1A) of the Criminal Procedure Ordinance (Cap 221), as recommended by the Law Reform Commission of Hong Kong in February 2014. This reform would enable the youth sentencing principles in section 109A(1) (i.e. jail as a last resort and the duty to obtain and consider information about the young person) to apply to all offences. Legislators should also debate a more basic question of whether a different paradigm to trial and sentencing should apply to persons under the age of 21 years. 

     Despite these challenges, criminal justice in turbulent times will be mostly business as usual. The system will continue to dispense justice in accordance with the law. Like our first-year student, some perceive the 2019 unrest as severely damaging the rule of law. But the foundations of rule of law in Hong Kong run deep and remain strong, free from corrosive elements, such as systemic corruption or ineptitude, seen in other places. Deep-rooted values and principles of the common law serve to ensure the system operates with fairness, integrity and humanity. These do not suddenly disappear when a political crisis has led to violence on the streets. 

     These values and principles are reflected in many judgments collected each year in this work. I highlight five cases from the past year. Note should be taken of the care and attention paid to the right to interpreter assistance in HKSAR v Moala Alipate [2019] 3 HKLRD 20 (CA), the decision not to order a retrial in HKSAR v Tsang Yam-Kuen, Donald (2019) 22 HKCFAR 176, the legal principles on reversal of guilty pleas set out in HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588, when ignorance of the law can be a defence as explained in HKSAR v Shum Wai Kee (2019) 22 HKCFAR 11, and when unfairness can arise from a duplicitous conspiracy charge, a complex area of the law made clearer in HKSAR v Chen Keen (alia Jack Chen) [2019] HKCFA 32. I thank my three able assistant editors and Ms Alisha Nanwani for all their helpful assistance. 

Professor Simon NM Young

Parkside Chambers

3 October 2019

HKU Law academics serving as Contributing Editors in this year's volume include Amanda Whitfort (1. The Indictment; 13. Evidence of Similar Facts; 46. Animals), Simon Young (11. The Hearsay Rule; 19. Human Rights), and Michael Jackson (17. Principals and Secondary Parties; 18. Strict Liability).

Cheng, Chui, Young & Ong on Why Criminal Trials in Hong Kong ‘Crack’? (Asian J Comp L)

"Why Do Criminal Trials ‘Crack’? An Empirical Investigation of Late Guilty Pleas in Hong Kong"
Kevin Kwok-yin CHENG, Wing Hong CHUI, Simon N M YOUNG, and Rebecca ONG

Asian Journal of Comparative Law
Published online: 7 Feb 2018, pp. 1-25

Abstract: ‘Cracked trials’, where defendants enter a late guilty plea after a trial date has been set, are considered a societal problem because public resources set aside for trials are wasted. Various government reports attribute the main cause to tactical defendants playing the system, and reforms have been initiated to encourage early guilty pleas and strongly discourage late ones. The aim of the present study is to investigate the reasons for cracked trials in the Hong Kong context, insofar as the reasons for late guilty pleas can be investigated without the influence of reforms seen in other jurisdictions used to discourage late pleas. A mixed methods approach of courtroom observations and interviews with defendants was adopted. We find that defendants who were represented by publicly-funded lawyers or who were in prolonged pre-trial detention were more disposed to changing their pleas. Subsequent interviews illustrate why these factors are salient. The findings support the notion that it is the pressures of the criminal justice process that lead defendants to ‘crack’ and highlight the costs to defendants for decisions on how to plead that are influenced by considerations other than actual culpability.

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

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES
DOUGLAS W. ARNER, EDITOR
SIMON N. M. YOUNG, EDITOR

Vol. 7, No. 7: Sep 26, 2017

1. Regulating a Revolution: From Regulatory Sandboxes to SmartRegulation

Dirk A. Zetzsche, ADA Chair in Financial Law / Inclusive Finance, University of Luxembourg, Heinrich Heine University Duesseldorf - Faculty of Law - Center for Business & Corporate Law (CBC)

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

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

Janos Nathan Barberis, The University of Hong Kong - Faculty of Law

2. Constitutions, Constitutionalism and the Case of Modern China

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

3. Enforcing Criminal Law Through Civil Processes: How Does Human Rights Law Treat ‘Civil for Criminal Processes’?

Simon N. M. Young, The University of Hong Kong - Faculty of Law

Kai Yeung Wong on the Hong Kong's Magistrates' Power to Review their own Acquittals (HKLJ)

"Second Chances for Unsuccessful Prosecutions: The Questionable Review Procedure over Acquittals in Magistrates' Court"
Kai Yeung Wong (SJD Candidate)
Hong Kong Law Journal
2016, Vol 46, Part 2, pp 405-414

Abstract: The review jurisdiction provided by s 104 of the Magistrates Ordinance (Cap 227) ostensibly enables a magistrate, having acquitted a defendant, to reverse the acquittal on its merits on review. Such is what occurred in HKSAR v Leung Kwok Hung, which was been upheld by the Court of First Instance. By reference to decided cases in both Hong Kong and the United Kingdom, and having regard to the constitutional and human rights implications, this article argues that s 104, properly construed, cannot be so applied.

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"

Simon NM Young

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"

Michael I Jackson

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"

Amanda Whitfort

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"

Peter Chau

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...

HKU Law Faculty Comment on Recent Criminal Deportation Cases Connected to Taiwan (SCMP)

"Beijing has 'legal right' to demand Kenya deport Taiwanese fraud suspects"
Catherine Wong & Lawrence Chung
South China Morning Post
15 April 2016

Beijing had legal grounds to ask Kenyan authorities to deport Taiwanese fraud suspects to the mainland, legal experts say, but it could have avoided controversy over its handling of the affair by showing more respect and better communication with Taipei.

      Forty-five Taiwanese, together with 32 mainlanders in Kenya, were sent to the mainland as authorities investigate their alleged ­involvement in phone scams targeting victims on the mainland.

     The deportations attracted criticism, though legal ­experts said Beijing’s handling of the case was supported by international laws...“Kenya and China, both of which are parties of the Palermo Convention, have the obligation to cooperate in [transnational] organised crime,” said Simon Young, a law professor at the University of Hong Kong. “On the other hand, there is no extradition agreement between Taiwan and Kenya.” The Palermo accord was adopted by the United Nations in 2000 with the aim of promoting cross-border cooperation in tackling organised crime... Click here to read the full article.

"Taiwan hopes for more formal crime-fighting measures with Hong Kong but city's legal scholars see hurdles"

KC Ng, Owen Fung & Samuel Chan

South China Morning Post

16 April 2016

Taiwan authorities expressed hope over establishing a formal crime-fighting mechanism with Hong Kong following the recent transfer of three suspects in the body-in-cement murder case from the island to the city. 

    Legal scholars in Hong Kong, however, had differing views on how likely such a system could be implemented, while a well-placed Taiwan official told the Post that Hong Kong’s lukewarm response to the idea thus far was a far cry from the close relations the respective law enforcement agencies had prior to the city’s 1997 handover. On Thursday, Taiwan’s Mainland Affairs Council said the island wanted to establish closer joint crime-fighting efforts with Hong Kong, including signing a mutual legal assistance agreement... The establishment of mutual legal assistance between Hong Kong and Taiwan would require Beijing’s authorisation, according to Simon Young, a law professor at the University of Hong Kong. 

     Young said he believed there were many reasons the central government would support such a formal arrangement, citing a criminal cooperation agreement between the mainland and Taiwan that was implemented in 2009 and had been successful.“I think it is in everyone’s interest to try to negotiate a workable cooperation framework between the mainland, Hong Kong, Macau and Taiwan,” he said. 

    But the legal scholar noted there could be some difficulties in working out a cooperation framework as Taiwan employs the death penalty while Hong Kong does not. 

     Albert Chen Hung-yee, another legal professor at HKU, was less optimistic. Chen said while it would be best for the city to establish an extradition arrangement with Taiwan, such a move would be unlikely. “Even between Hong Kong and the mainland, there is no formal extradition arrangement, so establishing one with Taiwan would be quite difficult,” he said.  Click here to read full article.

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.

Simon Young on Right to Counsel Gap in Hong Kong (Fair Trials International)

"A lack of access to lawyers in Hong Kong is endangering suspect's right to a fair trial"

Simon NM Young
Fair Trials International
9 April 2015
In this weeks guest post, Professor Simon N.M. Young discusses how a lack of access to lawyers for those arrested in Hong Kong is violating its own constitution, and prohibiting those detained the right to a fair trial.

There is a glaring gap in Hong Kong’s system of criminal legal aid. Public funds pay for solicitors and barristers to represent persons who have already been charged and brought before the courts. Little if any support exists for those who have yet to be charged. The Duty Lawyer Service provides a free legal advice scheme at district offices and a scheme of pre-recorded telephone messages. Neither are helpful to the suspect who has just been arrested, about to be interrogated by the police.

     Suspects at police stations are provided with a notice informing them of their “rights” to “make private telephone calls to” a lawyer and to have one “present during any interview with the police” (Form Pol. 153). But if the suspect does not know of any lawyer and asks if free legal advice is available, the police will say no. On request, he will be provided with a list of the more than 8,000 practicing solicitors, who have no duty to provide pro bono legal advice. In practice, unless a suspect or his family or friends know of a lawyer to contact, the suspect will most likely undergo the police interview without the benefit of legal advice. This must surely be a violation of Article 35 of the Basic Law (Hong Kong’s constitution) which provides that persons have the right to “choice of lawyers for timely protection of their lawful rights and interests”. Without access to legal advice at this stage there can be no timely protection.

    Criminal practitioners know the importance of having timely legal advice in order to ensure the fairness of trial for the suspect who is later prosecuted.  Suspects need to know whether or not they should remain silent in the face of pressing police questioning.  They need to know that under Hong Kong law no adverse inference can be drawn against the suspect who has remained silent (Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600).

    It is not entirely clear why the gap has yet to be filled.  Hong Kong is expecting a budget surplus of US$8.2 billion for 2014-2015, so cost cannot be the reason.  The Home Affairs Bureau acknowledges that the “provision of legal aid is an integral part of the administration of justice”, and it is striving “to enhance the accessibility of legal aid and free legal advice services to the public which consummates the value of everyone being equal before the law”.  Yet its January 2015 statement of policy initiatives says nothing about establishing a scheme for free legal advice at police stations.  Indeed the status quo perpetrates a flagrant inequality; that those with means will have legal advice and representation at the police station, while those without will have no assistance before they are charged and brought before a court – which is too late because highly damaging self-incriminating evidence may have already been provided.  It is also remarkable that the legal profession has not pushed more strongly for the gap to be filled.  Hopefully relevant stakeholders will soon come together to establish a scheme.  But if stasis persists then practitioners must seriously consider bringing a constitutional challenge in the courts to realise the full impact and significance of Article 35.

Getting Serious About a Suspect's Right to Timely Legal Advice

"Getting serious about a suspect's right to timely protection"
Access to immediate legal protection must be provided under Article 35
South China Morning Post
17 February 2015
Simon Young
Everyone in Hong Kong has a constitutional right to a "choice of lawyers for timely protection of their lawful rights and interests" (Basic Law, Article 35). Is the right fully complied with when a police officer hands a suspect the Law Society's list of solicitors and says, "Choose!" If the suspect asks "Who can I call for free legal advice?", the answer will be "Try your luck with the list", whatever the hour or day.
     The Law Society has a free legal helpline but it works on the basis that a lawyer "will contact you within three working days"; not much use for someone who needs legal advice immediately. It only takes a few minutes for an officer to embark on an interview that leads the suspect to making ill-informed statements damaging to his interests at his trial. This is known as self-incrimination.
     Had there been timely access to a lawyer, the suspect would be told to remain silent or to provide a statement favourable enough to be used at trial without having to face cross-examination by the prosecutor.  Whether to remain silent or to give a statement will all depend on the circumstances but the lawyer will know best...  Click here to read the full article.