Hong Kong Law Journal 1971 - 2024

In this article the authors provide a comprehensive overview of the sentences handed down by the courts over the past decade for various offences involving drugs such as cannabis, opium, heroin, cocaine, methaqualone (mandrax), methamphetamine hydrochloride (ICE), and methylenedioxy methamphetamine (MDMA or ecstacy). The authors consider general principles of sentencing and draw out distinct principles and factors specific to drug offences and offenders. They also identify the range of sentences given for trafficking, possession and manufacturing of drugs. This analysis provides useful information for legal practitioners, magistrates and judges alike when dealing with drug-related offences in Hong Kong.

The Court of Final Appeal (CFA) recently confirmed its jurisdiction to hear an appeal by a solicitor from the judgment of the Court of Appeal (CA) in regard to an order by a disciplinary tribunal. The CFA held that the legislation which provided finality of CA rulings over a tribunal’s order was not part of the laws of Hong Kong on 1 July 1997 and was inconsistent with the Basic Law and thus unconstitutional and invalid. It is here argued that the CFA has, as in the first Ng Ka Ling right of abode judgment asserted itself unnecessarily. The assertion by the CFA of its power to review legislative restrictions on its jurisdiction, but in the language of constitutionality, raises questions which might well be of concern to the other branches of the Hong Kong government or to the Central Authorities. The extent to which the CFA is the “master of its own court” may not yet be finally determined.

This article examines the apparent contradictions in Singaporean interpretation and application of its Westminster modelled Constitution in which the Constitution is treated as any other piece of legislation and Western style individual rights are easily overrun. It also examines the Government’s particularist claim to Asian values as an explanation for its handling of the Constitution and seeks an alternative approach to understand the Constitution with reference to the Government publication, the Shared Values. The author suggests that this Document serves as a quasi-Constitution, and finds that interpreting two leading cases with this hermeneutic leads to a more satisfactory understanding of the court’s decisions. The article concludes that the Government’s approach toward the law to create the society it envisioned and published in the Document is a different and pragmatic issue, rather than a result of any fundamental East versus West cultural difference.

Until 1997, the constitutional principle of the separation of powers was occasionally recognised in Hong Kong, but it had no teeth until adoption of a codified or written constitution in 1997. Under the Basic Law the separation of powers has become fundamental doctrine, such that a failure by the legislative and administrative branches of government to abide by it will render the offending legislation or executive act invalid. No effort seems to have been made to adjust the pre-1997 legal system to ensure that it is proof against attack inspired by the mix of functions granted to public institutions and personnel. This article explores possible problems in relation to (1) the appointment of judges to non-judicial bodies, (2) the conferring of judicial powers on such bodies, and (3) the exercise by courts of non-judicial functions.

In Bahadur v Director of Immigration, the Court of Final Appeal considered the question of whether rights found in Hong Kong’s constitution, the Basic Law, are subject to restrictions. Bahadur concerned the right of residents to travel and enter Hong Kong, which is found in the Basic Law but not in the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. To its credit, the Court eschewed an approach making such rights subordinate to ordinary legislation. Questions concerning the approach to restrictions on parallel Basic Law rights, ie Basic Law rights that have a parallel right in the ICCPR as applied to Hong Kong, have yet to be determined. It is argued here that these rights and their possible restrictions should have an autonomous interpretation and not have to conform to the minimum standards in the ICCPR.

This is an edited transcript of the Inaugural Jerome Chan Memorial Lecture delivered at the Faculty of Law of the University of Hong Kong on 19 February 2004.

China's accession to the World Trade Organization (WTO) and the conclusion of the Closer Economic Partnership Arrangement (CEPA) have aroused debates regarding the treatment of parallel imported goods in both Hong Kong and China. This article reviews the law and policy concerning parallel importation of trademarked goods in both territories through a comparative discussion of how three regions in the Pacific Rim, namely the United States (US), Japan and Singapore, have each dealt with the issue. The discussion focuses on whether Hong Kong and China ought to amend their current policy in view of the new social, economic and political order. It is suggested that in order to sustain strong economic and social development, it is of utmost importance that parallel imported trademarked goods are given free access to both territories.

In Agnew v Commissioner of Inland Revenue, the Privy Council decided that for a fixed charge to be created over a company’s present and future book debts, the chargee must exercise control over both the uncollected book debts and their realised proceeds. Agnew has thus cast doubt upon the correctness of Siebe Gorman v Barclays Bank Limited, where the debenture in question did not specifically restrict the chargor’s freedom to draw on the proceeds after they were paid into a designated account with the chargee. Recently, a Siebe Gorman-type debenture came under judicial scrutiny in National Westminster Bank plc v Spectrum Plus Limited. The English High Court held that the control conferred by a Siebe Gorman-type debenture was deficient, whereas the English Court of Appeal took a completely different view. The issue of control concerning charges over book debts is therefore still unsettled. This article examines the control requirement in the light of recent cases.

This is the first of two articles on the law relating to transgender persons in Hong Kong. This article examines the current administrative and legal status of Hong Kong’s transgender persons. It argues that, whilst various policies and practices adopted by the authorities undoubtedly facilitate the every day lives of certain transgender persons, the legal situation (which perpetually condemns them to their biological sex as designated at birth) is inhumane and should no longer be tolerated. The second article, Robyn Emerton, “Time for Change: A Call for the Legal Recognition of Transsexual and Other Transgender Persons in Hong Kong”, also intended for publication in the Hong Kong Law Journal, will consider how the current position could be challenged by way of judicial review under the Hong Kong Bill of Rights Ordinance, or, ideally, changed through legislative reform.

The Basic Law of the Hong Kong Special Administrative Region (the Basic Law) provides that the judiciary must exercise its power independently, free from any interference, that its members enjoy judicial immunity, and that judges be given tenure to ensure their independence. The Basic Law has embodied the doctrine of separation of powers by vesting specific powers in the Executive Government, Legislative Council, and judiciary respectively. It provides that judges be appointed by the Chief Executive on the recommendation of an independent commission, and that only the judiciary may exercise the judicial power of the HKSAR. These provisions were enacted to safeguard judicial independence. However, as regards members of the judiciary other than judges, the Basic Law maintains the previous system of appointment and removal. Under this system, the Chief Justice appoints deputy magistrates and deputy District Court and High Court judges, and the Chief Executive appoints permanent magistrates by warrant and temporary High Court judges as recorders. The power to appoint also includes the power to dismiss or suspend. It is argued that these practices violate the doctrine of judicial independence under the Basic Law, and accordingly should be replaced so as to ensure judicial independence in all judicial appointments.

The collapse of Enron and WorldCom has focused considerable attention upon the company director as a “gatekeeper” for good corporate governance. They are presently subject to ever increasing scrutiny and much of the recent reforms around the world have adopted a regulatory philosophy premised on keeping company directors on the “straight and narrow” by compelling them to “Do X”, “Do Y” or “Do Z”. This approach presumes that legislators and regulators have the inherent ability to subject business decisions to systematic analysis and fails to recognize that such decisions often involve intangible and intuitive insights. This article seeks to balance the scales in favour of directors by offering them safe harbour through the enactment of a statutory business judgment rule for decisions that are made without any conflicts of interest and with full knowledge and appreciation of the material facts. In doing so, it will allow directors to get back to the basics of business within a capitalist framework namely, to promote entrepreneurism through the facilitation of legitimate business decisions and risk taking.

The financial system of virtually every nation includes (i) a bankruptcy regime, (ii) a financial regulator, and (iii) a lender of last resort. Each of these elements is missing in the international system. This article considers the impact of the absence of these critical elements on the international system, and what might be done about it.

This article explores the evolution of civil law and common law towards convergence, briefly addressing the history of the theoretical and philosophical perspectives that contributed to shape evolution and change within these two systems. The article analyses general features of the central aspects of contract theory in civil law and common law jurisdictions. As an example of convergence in the commercial contract realm, the article focuses on the analysis of the structure, characteristics and main clauses of the commercial space launch services agreements in both systems, stressing their similarities in structure, treatment and consequences.

The rapid development of e-commerce in China has generated increasing demands for dispute resolution. This represents new challenges for the Chinese court system, particularly with regard to the admissibility of e-evidence and conflict of laws. A greater role for alternative dispute resolution services offered by the private sector is also called for. This article explores the development of online dispute resolution in China, particularly online arbitration and mediation, and analyses their legal environment, feasibility and operational procedures. It also examines the existing online dispute resolution systems in China, particularly the CNNIC Domain Name Dispute Resolution Procedure.

The Hong Kong government has commenced a public consultation exercise on a bill to prohibit racial discrimination, which is expected to be introduced in the Legislative Council in early 2005. The government has proposed to model the bill on the existing Sex Discrimination Ordinance (SDO) and the Disability Discrimination Ordinance (DDO). While there are advantages to adopting a familiar format, the author argues that the SDO and DDO can be improved upon, in particular, that a more flexible definition of indirect discrimination should be adopted and that special provisions be drafted to address discrimination against new immigrants from Mainland China. The author takes the view that this is an opportune time to strengthen the enforcement model for all of Hong Kong’s anti-discrimination laws. The author proposes that officers at the Equal Opportunities Commission (EOC) be empowered to take a more proactive approach and that a specialist equal opportunities tribunal should be established outside the auspices of the EOC.

In this article the authors consider whether the dictionary definition of pollution adopted by the Court of First Instance in The Secretary for Justice v Flame Construction Company Limited and Others is appropriate and, in particular, whether the definition can sustain prosecutions for common types of discharges which are damaging to rivers and streams. Emphasis is placed on the difficulty of demonstrating unequivocally that ecological “harm” is caused by discharges, as this has important implications for laws that are intended to protect the environment. The authors conclude that without an amendment to the Water Pollution Control Ordinance that would provide an appropriate definition of pollution, effective prosecutions for the pollution of rivers and streams in Hong Kong cannot be pursued.

The role of the doctrine of mistake has recently been considered by the Court of Appeal and the House of Lords in England. While not completely abolishing the doctrine, the decisions of these courts have narrowed its application and focused attention on this area of contract law and the usefulness and fairness of its operation. This article reviews these cases and considers the role of the doctrine in comparison with overlapping areas of contract law. It also examines the impact on Hong Kong law and the future of the doctrine from a practical point of view and in the light of the advances made in the area of information technology.

This is the second of two articles by the author on the law relating to transgender persons in Hong Kong. The first article, which appeared in Volume 34(2) (2004) of this journal, examined in detail the current administrative and legal status of Hong Kong’s transgender persons. This article considers how the present, unsatisfactory situation could be challenged through the courts or changed through legislative reform. First, the article examines the potential of judicial review proceedings under the Hong Kong Bill of Rights Ordinance and the Basic Law against the Hong Kong authorities’ refusal to allow transgender persons to marry in their chosen gender or to amend their birth certificates. This section draws heavily on international and comparative case law, and in particular the landmark decisions of the European Court of Human Rights in Goodwin v UK and I v UK (2002). Concluding that there is a strong case to be argued under the right to marry, but that litigation is unlikely to provide a comprehensive solution to the problems faced by Hong Kong’s transgender persons, the article then calls for full legal recognition to be granted to them through legislative means, and considers which of several models (focusing on Singapore, Japan and the UK) might be most suitable for Hong Kong.

The primary aim of this article is to provide a background study and analysis of same-sex partnerships in the hope that it may assist the debate and contribute to policymaking. This article begins by looking at the events that led to the 1991 decriminalisation of homosexual conduct between consenting adults in private. This is followed by a summary and analysis of the gay and lesbian rights movement as a global force. It is argued that the recent success of gay and lesbian groups, especially in the liberal West, is closely related to a larger movement for equality and non-discrimination. The author argues that the demands of same-sex couples in Hong Kong are also part of this wider movement for equality and non-discrimination and deserve to be debated and addressed without undue delay.

This article sets out the main complexities and indeterminacies in the current law relating to the admission of evidence of a criminal defendant’s good character in a criminal trial. Specific attention is given to problems in directing juries in this area, with special reference to the Hong Kong Special Administrative Region, Court of Final Appeal decision in Tang Siu Man. The article explores the present and potential relevance of good character evidence, concluding that such evidence is currently misunderstood and undervalued. Finally, a skeleton outline of a simplified and more coherent and principled approach to good character evidence is provided.

This article concerns the power of the Telecommunications Authority (“the Authority”) to make determinations in respect of interconnection disputes between an incumbent and a new operator. The author argues that as a public officer and the market regulator, the Authority not only has the statutory powers but also the statutory duty to make interconnection determinations under section 36A of the Telecommunications Ordinance (Cap 106) (“the Ordinance”). Whether or not he decides to make a determination in a dispute, his decision can be the subject of judicial review. The author further argues that through a misinterpretation of certain provisions of the Ordinance, the Authority has wrongly fettered his discretion under section 36A and thereby exposes himself to the risk of court proceedings. To remove that risk, a reconsideration of the policies set out in the Authority’s Statements and Guidelines is suggested. Amendments to the Ordinance may also be necessary.

In this article, the author examines the rights of Chinese defendants in criminal trials in the early twentieth century British-leased territory of Weihaiwei (1898-1930). Chinese defendants indicted for serious crimes were tried by a Judge, assisted, where appropriate, by one or two Chinese assessors. Defence counsel and trial by jury were not the norm but both became more established after two defendants, without the benefit of trial by jury or legal representation, were convicted of murder in 1912. The negative publicity sparked by this case played a role in the introduction of limited public funding for defence counsel and may well have encouraged greater use of the jury. The different views on trial by jury and counsel for the defence held by the Colonial Office, local British officials and others are also explored.