Hong Kong Law Journal 1971 - 2024

The Hong Kong administration has expressed a wish to amend the Crimes Ordinance to introduce an offence of persistent sexual abuse of a child. The proposal is a direct response to the decision of the Court of Final Appeal quashing the convictions of Chim Hon Man in 1998. The proposal to introduce the new offence has created much controversy, largely stemming from fears that the prosecution of this offence will severely abrogate a defendant's right to a fair trial. This article considers the history of the proposal and what it is hoped will be achieved by the amendment and evaluates the criticism of the proposal. Finally, the author offers a suggested solution to the difficulties.

Recently, the Appeal Committee of the Hong Kong Court of Final Appeal raised the question of whether that court had the power to hear an appeal against a decision of the Court of Appeal. The decision in question concerned a judgment of professional misconduct against an accountant by a disciplinary committee under the Professional Accountants Ordinance. The ordinance clearly states that the decision of the Court of Appeal is final. This article examines whether the Court of Final Appeal has the constitutional jurisdiction to hear appeals against Court of Appeal decisions. The author concludes that for appeals that are statutory in nature, if the relevant statute specifically excludes appeals to the Court of Final Appeal then that court has no jurisdiction to hear any such appeal.

The development of content-protection technologies (CPT) and digital rights management systems (DRMS), despite their benefits to rights-holders, pose many dangers to the protection of privacy, which some have said could mean an end to the privacy of reading. Hong Kong and Australia are two of the earliest jurisdictions in the world with laws implementing the anti-circumvention and rights management information (RMI) protection provisions arising from the WIPO Copyright Treaty 1996 (WCT). They are also two of the few jurisdictions outside Europe with privacy (data protection) laws applying to the private sector. These two jurisdictions, therefore, give two of the best illustrations of the tensions now arising between copyright and privacy: property versus privacy. In this article, the author explores how CPT and DRMS affect privacy, how existing data protection and privacy laws affect the operation of CPT and DRMS, and whether laws against copyright circumvention devices and interference with RMI prevent privacy protection. The author concludes that privacy could now be unduly prejudiced in favour of property, and suggests reforms which may help restore the balance.

This article reviews the current permitted acts under the Copyright Ordinance and their implications for Hong Kong. The discussion focuses on those permitted acts having a direct impact on two sectors the Hong Kong Government is most concerned with: education and the software industry. It shows that because of the limitations of the permitted acts, the Copyright Ordinance has failed to strike the right balance between the conflicting interests in these two sectors; rather, it favours the copyright owners. The article traces the cause of the imbalance to three main deficiencies in the Copyright Ordinance and proposes a solution to strike the right balance.

The Bill of Rights Ordinance established an enforceable right to equality in Hong Kong's public sector. This right was further developed in 1995 when the Sex Discrimination Ordinance and the Disability Discrimination Ordinance were enacted. This legislation should have spurred a comprehensive review of government policies. However, recent cases demonstrate that the government has failed to conduct such a review and that it has actively resisted the Equal Opportunities Commission's (EOC's) efforts to enforce the laws. The government's failure to comply with its own legislation sets a poor example for the private sector and undermines the entire enforcement model, which is supposed to be based largely upon conciliation and public education. In light of this record, the author argues that the EOC should be given stronger enforcement powers and broader jurisdiction over discriminatory acts by the government and public authorities.

The next critical step in the judicial process after issue of originating process is service of that process. In order to be valid, service must be carried out in accordance with the rules or in exceptional cases in accordance with an express agreement between the parties ("consensual service"). If service is not properly effected, the impact on the plaintiff may be significant. Any default judgment he has obtained will usually be classified as an "irregular" judgment and the defendant will be entitled to have the judgment set aside by the court, without an inquiry into the merits of the defendant's defence. The costs of the application to set aside will be borne by the plaintiff. The issue of whether or not service has been properly effected is topical in Hong Kong, as reflected by the recent spate of cases on this subject. This article (a) examines the procedural rules regulating service of originating process upon an individual within the jurisdiction, and (b) identifies some of the more common difficulties that have arisen in effecting proper service in light of the relevant case law. The article also considers whether the Hong Kong courts have adopted a consistent approach in applying the procedural rules.

The collapse of the American corporation Enron has profound and hard lessons for Hong Kong. Enron has provided new examples of ways in which it is possible for unethical business behaviour to be lawful, in the positivist sense of law. This article argues that the complex relationship between the Companies Ordinance and the protection of investors can never be stated as more than a set of principles. The superstructure of the "public interest" rests, somewhat uneasily, on the professional shoulders of accountants. Accounting standards fill the gap between law and ethics in the system. The meaning of what is understood by a "true and fair view" remains the same, whilst the "contents" (ie specific accounting regulations) can be expected to change. A question for Hong Kong is who decides, and who should have the final say on those "contents": the accounting profession, the stock exchange, an accounting standard setter, the Securities and Futures Commission, or the Government?

This article is based on a lecture on plain legal language delivered in Hong Kong in February 2002. The author provides an overview of the movement towards using plain language in legal documents, and discusses certain assumptions made in deciding to use plain legal language. He provides evidence to support the propositions that it is possible to express legal concepts in plain language effectively, that plain legal language can save money, and that judges and clients prefer plain language. Overall, the article provides an introduction to the principles and concepts underlying the plain language movement.

The new Population and Family Planning Law of China was enacted on 29 December 2001, 21 years after the One Child Policy was implemented. That policy and its implementation have been condemned as violations of international human rights norms and standards for the protection of the health, sexual and reproductive rights and other human rights of women. The purpose of this paper is to discuss such condemnations, taking into account the standards under the Convention on the Elimination of All Forms of Discrimination Against Women and the new Population and Family Planning Law from cultural, gender, socio-economic and legislative perspectives.

In a recent consultation document, the Information Technology and Broadcasting Bureau proposed that personal identification numbers (PINs) be accepted as a form of signature for the purposes of the Electronic Transactions Ordinance (ETO) (Cap 553). This article explains why this proposal is fundamentally flawed. The article identifies three basic requirements for a signature and examines whether they are satisfied by digital signatures and PINs. It concludes that while a digital signature has built into it all the necessary elements for compliance with the requirements, a PIN can only be used for the purpose of authorisation and cannot be elevated to the status of a signature as required by the ETO.

The Protection of the Harbour Ordinance (Cap 531) originated as a private member's bill and was enacted in 1997 to protect the harbour from excessive reclamation. This article examines the background of harbour reclamation, analyses the proper interpretation of the Ordinance and explains how it is intended to work. The effect of section 3(2) of the Ordinance is discussed with reference to relevant case law. It is submitted that, as the object of the Ordinance is to protect and preserve the harbour against reclamation, if a proponent is unable to rebut the statutory presumption against reclamation, the necessary authorisations should not be granted and reclamation cannot be lawfully carried out. The article concludes with four suggested tests that should be applied if reclamation is to comply with the Ordinance.

Part III of the Public Order Ordinance is now the main source of prior restraints applicable to public assemblies in Hong Kong. It is also an important source of "at the scene" control and dispersal powers. Non-compliance with the prior restraints or disobedience of "at the scene" orders is punishable according to the criminal provisions contained in Part III. However, since the reunification of Hong Kong and China in 1997, some of the prior restraint provisions have been widely disregarded. Their consistency with the fundamental freedom of peaceful assembly demanded by the International Covenant on Civil and Political Rights (ICCPR) and the Basic Law of the Hong Kong Special Administrative Region has been questioned. In this article, the author first sets out the fundamental freedom approach by which it is suggested that the consistency of Part III and the ICCPR can best be tested. Then the substance of fundamental freedom of peaceful assembly and its significance in a democratic society is explained. Finally, using a fundamental freedom approach, the ICCPR standard for the fundamental freedom of assembly is applied to the terms of Part III.

While litigants in person are increasingly common in civil proceedings in Hong Kong and in other common law jurisdictions, we know very little about them. Most of the available information is anecdotal and does not answer key questions about the reasons why litigants represent themselves and the connections between self-representation, merits and outcomes. This first of two articles discusses the challenges posed by self-representation for litigants and other stakeholders, identifies the gaps in our knowledge about litigants in person and charts a course for further empirical research to fill those gaps.

The current level of personal bankruptcy in Hong Kong is unprecedented. The numbers have been steadily increasing since the major overhaul of the Bankruptcy Ordinance which took effect in April 1998. At the same time, a new insolvency regime - the individual voluntary arrangement (IVA) - was also introduced. It was intended that the IVA would offer an alternative to bankruptcy. Yet, since 1998, there have been only a handful of IVAs. This article examines the key features of the IVA procedure and reflects upon the practical role the insolvency practitioner has to play if an IVA is to be successfully implemented.

The doctrine of precedent, an integral feature of the accumulated body of pre-1997 judge-made law from the United Kingdom, aims to ensure certainty for litigants. But a strict application can have harsh results and a lower court may choose not to follow an otherwise binding decision where it is shown to have been reached through inadvertence. In CIR v Indosuez WI Carr Securities, Longley D-J held that the Privy Council's decision in CIR v Hang Seng Bank Limited impugned the reasoning which had led the Court of Appeal to conclude in CIR v The Hong Kong & Whampoa Dock Co. that it was not possible to apportion profits between Hong Kong and non-Hong Kong sources. This article analyses the reasons for departing from CIR v The Hong Kong & Whampoa Dock Co. and argues that revisions to the Inland Revenue's Departmental Interpretation and Practice Note No 21 will almost certainly follow.

A recent review of legal education criticised Hong Kong's professional legal education programme (the PCLL). The review said that the PCLL was not doing a good enough job in preparing students for legal practice. This paper responds to the review by outlining proposals for a new PCLL. The proposals are based on the premise that professional legal education needs to develop students' ability to learn new skills after graduation. This is a complicated, but crucial, educational goal that is more easily understood with the help of concepts such as "problem solving" and "transfer of learning." The paper argues that if the PCLL is designed to enable students to transfer problem solving skills from one legal context to another then students will more easily be able to transfer what they have learned in the programme to new problems in legal practice. To achieve this goal, however, requires painstaking effort in constructing several interdependent, curriculum-design features that other programmes around the world have used successfully.

This article discusses the importance of free access to essential legal information to the rule of law and the role of Legal Information Institutes (LIIs) in providing such access. The main features of the new Hong Kong Legal Information Institute (HKLII) and its differences from pre-existing systems are described. HKLII is the first LII in Asia: a LII is a free, independent, non-profit Internet facility providing relatively comprehensive coverage of the essential legal information of a jurisdiction, in this case Hong Kong. This article describes HKLII's first year (July 2001-July 2002), from the initial discussions on its possible creation to the installation of its own server in Hong Kong. It explains that the development of HKLII has been made possible by the policies of the Hong Kong Special Administrative Region Government and judiciary, which support access to legal information. The future development of HKLII and its potential impact on free access to legal information elsewhere in China and other jurisdictions in Asia is discussed.

HKLII is a partner in the development of the World Legal Information Institute (WorldLII). The scope and facilities of WorldLII are described briefly, and its relationship to HKLII is used to demonstrate how legal resources from one jurisdiction can be incorporated into a global, comprehensive approach to free access legal research.

In Ng Siu Tung and Others v Director of Immigration, the Court of Final Appeal delivered a landmark judgment, holding that several representations made by the Hong Kong Special Administrative Region Government in the long-running right of abode saga had created substantive legitimate expectations in certain classes of claimants, and the failure of the government to honour those representations amounted to an abuse of power. As a result, the removal orders were quashed and cases were directed to the Immigration Department for reconsideration. The decision stands as the first authority approving and applying the doctrine of substantive legitimate expectation at the final appellate court level in any common law jurisdiction. This article critically examines the reasoning of the judgment and the impact of the doctrine on the development of administrative law.

This article explains the “double actionability” requirement for tortious choice of law issues. It examines the impact of the recent House of Lords decision of Kuwait Airways Corporation v Iraqi Airways Company on jurisdictions like Hong Kong and New Zealand where common law theories for foreign torts still apply. As the acts complained of in the case occurred before the enactment of the UK Private International Law (Miscellaneous Provisions) Act 1995, it was necessary to refer to the common law rules. It is argued that the Kuwait Airways case raises more problems in this area of law than it solves.

In response to persecution, poverty and unemployment, and with restrictions placed on legitimate migration systems, hundreds of thousands of people are now moving illegally into other territories with the assistance of professional migrant smugglers. The discrepancies between immigration and asylum systems in the region are increasingly exploited by transnational criminal organisations. Territories with a more liberal attitude towards immigration and those that do not have the resources to closely monitor cross-border movements have been described as “easy targets” for migrant smuggling activities. However, it is not reasonable to take action against migrant smuggling by eliminating legal avenues for migration and restricting the protection provided to asylum seekers. As long as people are convinced that life is better elsewhere, there is no way to avoid some of them “trying their luck” and moving abroad, be it legally or illegally. The issues associated with illegal migration are transnational in nature and concern all countries and territories in the region. It is important to promote the principles of the existing protection regimes more widely in the region and address the underlying problems that cause migratory movements and refugee flows through co-operation in regional development, and information and education programmes to improve the sharing of responsibility.

A deconstructive study of derivatives transactions reveals that a standard interpretation of derivatives contracts seems to be lacking, even though such contracts are manifested in the form of standard contracts. In addition, these contracts are not optimally complete on their own, and are not secure and stable because they cannot guarantee enforcement by the courts. This is a disturbing issue because security of contract is the fundamental essence of contract law. Furthermore, some of the contracts contain elements of illegality that society has become “blinded” to because they have been taken for granted by the courts and society alike. Deconstruction helps us to re-examine the “dominant social vision” and enables us to alter that “vision” to a more accurate and balanced one by highlighting the alternative side of the prevailing view. Derivatives transactions go against the fundamentals of contract theory: broadly speaking, the nature of derivatives transactions border upon instability, illegality, unpredictability, non-enforceability and incompleteness. And the acceptance of this as the norm, by the courts and by society, suggests the creation of a new contract theory, encompassing these polarised new values.

The Government of the Hong Kong Special Administrative Region published the Consultation Document on the Proposals to Implement Article 23 of the Basic Law in September 2002. Article 23 of the Basic Law requires the Hong Kong Government to enact laws on its own to prohibit any act of treason, secession, sedition or subversion against the Central People's Government, or the theft of state secrets. The Hong Kong government must also prohibit foreign political organisations or bodies from conducting political activities in Hong Kong and prohibit political organisations or bodies in Hong Kong from establishing ties with foreign political organisations or bodies. A list of proposals is made in the consultation document on how to implement Article 23. This article analyses those proposals on the basis of the principle of minimum legislation. Though many of the proposals are acceptable, some are not necessary or could be refined according to the principle.

Inter-regional conflict of laws within China under the doctrine of “one country, two systems” has given rise to much discussion and controversy. This article first considers the current position of the conflict of laws between mainland China and Hong Kong and undertakes a preliminary theoretical exploration of this subject. Thereafter, the general principles applicable to Hong Kong-related cases under Chinese law are considered. Finally, the article focuses on the practice of judicial assistance between the Mainland and Hong Kong before and after the 1997 handover, and offers some practical suggestions on the evolving framework of conflict of laws between the two jurisdictions. In view of the wide scope of judicial assistance and the complexity of the issue, the discussion is confined to civil and commercial matters, leaving criminal matters aside.

Income tax treaties have often been used to maximise the group profits of multinational corporations. In 1998, China and Hong Kong entered into the China-Hong Kong Double Taxation Arrangement (China-Hong Kong DTA or DTA) to avoid the double taxation of income. The DTA is an excellent and innovative example of China’s commitment to the “one country, two systems” formula with which China has resumed sovereignty over Hong Kong and Macau. This article is a comparative analysis of the China-Hong Kong DTA and the income tax treaties that China has signed with its major trading partners. It concludes that the DTA is a “cut down” version of a typical income tax treaty. The article also provides a comprehensive review of the major elements of the DTA. Results suggest that the adoption of international standards enhance the DTA’s understandability. The existence of the DTA is strongly supported by the Hong Kong business community as it solves most of Hong Kong’s double taxation concerns and reduces the level of uncertainty of taxation treatment for cross-border employees and for Hong Kong companies with permanent establishments in mainland China.