Hong Kong Law Journal 1971 - 2024

One view among the judiciary in Hong Kong is that courts should defer to the government's position in adjudicating the constitutionality of policies, because courts are institutionally and constitutionally unequipped to pass judgment on policy issues. Using W v Registrar of Marriages as an example, this article exam-ines some of the commonly cited institutional and constitutional reasons for def-erence, and argues that these reasons do not, generally speaking, provide valid grounds for Hong Kong courts to defer.

This paper analyzes definitional issues raised by terms such as "man" and "woman" in transgender jurisprudence, focussing on the Court of First Instance decision in W v Registrar of Marriages. Courts frequently seek guidance on ordi-nary meaning in standard works of lexicography. But this objectifies the trans party by treating so-called "ordinary" meaning and the dictionary definition as determinative.

This article examines the role of deference in constitutional challenges in the context of minority rights claims. It reviews prevailing justifications against judicial activism, arguing that contextual considerations such as the existence of an institutional framework for inclusive governance are key to determining the appropriate role and indeed, duty of the court. Parting company with the court's emphasis on deference and social consensus in W v Registrar of Marriages, it argues that courts have an elevated responsibility to determine interpretive issues on substantial grounds based on principle or meta-principles rather than structural grounds like deferral to majority views in minority rights claims. This imposes a greater burden on the judicial branch to serve as a conduit for minority representation in contentious constitutional issues and more broadly as a forum for deliberative participation by marginalised communities. Whilst it is essential that the safeguards of checks and balances be rigorously observed, a heightened level of scrutiny in such instances complements, rather than undermines the rule of law.

This article contends that, in W v Registrar of Marriages (Court of First Instance, High Court of Hong Kong), Cheung J misapplied the consensus doctrine developed by the European Court of Human Rights (ECHR). The consensus doctrine makes particular sense at the ECHR because of specific language in the treaty that established the ECHR and because the ECHR is a supranational institution. The ECHR's consensus doctrine is generally inapposite to domestic courts that adjudicate constitutional claims. By citing the ECHR's consensus doctrine to define the constitutional right to marry in Hong Kong, Cheung J compromised the integrity of the court's reasoning in W.

This article contends that the Hong Kong government's decision to deny a transgender woman's application to marry her male partner, reviewed by the Court of First Instance in W v Registrar of Marriages, engages a right to equality and non-discrimination in Hong Kong constitutional law as well as anti-discrimination legislation. In light of the relative marginalization of the transgender community and Hong Kong's reasonably robust equality jurisprudence, framing W's challenge more explicitly on equality grounds may have had some advantages. In particular, a focus on equality may have strengthened the court's resolve to exercise its duty to protect the rights of minorities against discriminatory social attitudes.

The aim of this article is to put W v Registrar of Marriages in comparative perspective by surveying the development of the law in Europe. It sets out the position now taken by the European Court of Justice and the European Court of Human Rights regarding the change of legal gender; it then explains how this position developed by describing the laws of several European jurisdictions and their convergence on the matter. Finally, it brings the discussion to bear on the Hong Kong court's requirement of a "clearly discernible societal consensus'' and concludes by noting that the development of the law in Hong Kong is falling significantly behind not only that of Europe but also that of its Asian neighbours and the rest of the world.

"If people ask me why I used to be a boy and now I'm a girl I would say I have a girl's brain and a boy's body, and I think like a girl but I just have a boy's body, and it's different than you. . . . It's okay to be different . . . It's okay to be different because it just matters who you are, it doesn't matter if you're different than anybody else, it just matters if you're having a good time and you like who you are''(Jazz, six years old, talking about being transgender).

This article examines recent developments in Australian public service law which have seen sweeping changes at various levels of government on whistleblower protection laws, ongoing debate about the powers of government managers to refer public servants for medical examination, utilisation of criminal powers to arrest litigants threatening to kill court staff, and the advent of a new form of legal privilege for journalists. The article argues that these Australian developments are useful for Hong Kong lawyers to observe. In the first place, the Australian position on ordering medical examinations and protecting court staff may make existing powers of Hong Kong Senior Executive Servants more workable (while ensuring they are still fair). In the second place, the developments regarding whistleblower protection and journalist privilege may become relevant to any future review of government accountability and operation. Given the ongoing review of Hong Kong public sector employment law after Lam Siu Po and Rowse and the advent of web sites like Wikileaks, it is argued that an analysis of these issues is both timely and relevant.

This article examines the Congo Case, which is currently before the HK courts. It requires a choice between the pre-handover common law as to restrictive immunity and Mainland adherence to absolute immunity. The author submits that the common law does not revive due to a Declaration by the Standing Committee of the National People's Congress. Further, the contemporary incorporation of customary international law (CIL) as to immunity by HK courts requires deference to persistent objection by the People's Republic of China (PRC) as to restrictive immunity. Lastly, whether the PRC is a persistent objector and, in being so, speaks for Hong Kong, must be certified by the Central People's Government (CPG) under Art 19 of the Basic Law.

This article argues that the maxim omnia praesumuntur contra spoliatorem from Armory v Delamirie (1722) 1 Str 505 has been misapplied in Hong Kong and Shanghai Banking Corp v Chan Yiu-wah [1988] 1 HKLR 457 as the defendant had not detained the banknote in bad faith, and the banknote was not the only possible evidence of value. The authors argue that a proper application of the maxim omnia praesumuntor contra spoliatorem is limited to the drawing of an adverse inference where documentation has been destroyed by a party with the intention of destroying evidence, or at the very least in circumstances where the party concerned knew that the documentation would be relevant evidence in pending litigation and has offered no good explanation for its destruction. The authors demonstrate that this proposition is consistent with authorities relied on by the Court of Appeal in Chan Yiu-wah, other English authorities (R (IS) 11/92, Hoechst Celanese Corp v BP Chemicals Ltd) and recent HK jurisprudence.

This article examines the source concept, especially as it applies to the taxation of business profits, based on Australian and Hong Kong tax law. The operation of the current source rules in Hong Kong - and other jurisdictions - has been placed under significant strain by an increasingly globalised economy and a corre-spondingly mobile tax base. The source problems in Hong Kong today are a combination of the nature of source as it has developed historically and Hong Kong's unusual tax system. The article concludes, based on the earlier detailed analysis, that Hong Kong today has a rather deep systemic tax problem arising from its especially heavy reliance on source-based taxation. At the end of the day, the introduction of a consumption tax looks to be the "least bad" option to enable Hong Kong to build a more robust, long-term taxation system.

The aim of this paper is to critically examine China's regulation for securities offerings in light of the recent financial global crisis and, based on these findings, make policy recommendations for future reform. The Chinese regulatory regime contains the key element of merit review, apart from disclosure requirements akin to those found in many other jurisdictions. This paper shows that China's merits-based regulation suffers from a number of serious problems affecting the efficacy of the securities market. But the author argues against the idea of an immediate switch for China to the disclosure-based regulation, taking into account the weaknesses of the disclosure-based regulation, as evidenced in the recent global financial crisis, as well as its compatibility with the local conditions in China. It is submitted that while merit regulation may be anachronistic for advanced economies, the same cannot be said of emerging markets like China at least in the short run. Apart from its theoretical value in informing debate on the model of securities regulation, this paper is also of practical significance to foreigners who contract with or invest in Chinese listed companies.

Early in 2010, China's censorship regime attracted media attention after a dispute with Google over allegedly hacked Gmail accounts. The growing tension between internet service companies and China has led to calls for the US Trade Representative to pursue legal redress in the WTO. This essay engages with the concept of freedom of expression in China and proposes that China can benefit from reducing its censorship policies. Where freedom of expression and trade liberalisation intersect, the WTO can be an effective steward for both concepts. Although past cases have shown timidity on the part of Panellists and members to force proper engagement with government censorship, there is still scope for the WTO to be an effective alternative to traditional human rights discourse.

Hong Kong is the only common law jurisdiction where Chinese can be used as a legal language to develop the common law. Civil litigation in Chinese has been conducted in the courts of Hong Kong for more than 15 years. The number of cases conducted in Chinese, including appeal cases, has been on the rise. Chinese is often used in cases in which both or one of the parties are or is unrepresented. This lecture examines the practice of and problems in the use of Chinese in court proceedings in Hong Kong, and provides suggestions for further development in this regard. Suggestions include the cultivation of bilingual legal talents, more training in the use of Chinese for legal practitioners and judicial officers, improvement in the writing of skeleton submissions in Chinese, and the development of Chinese legal vocabularies.

Romalpa suppliers' proprietary claims over newly manufactured products and sub-sale proceeds have sometimes been characterised as registrable charges under company charges registration legislation and then struck down as void for non-registration. It has been suggested that the same approach ought to be applied to Quistclose trusts. This is a reply to that suggestion.

Until recently, the author was an academic in Hong Kong. He has returned to legal practice in Sydney, Australia. Prior to his departure, he wrote at length on two cases before the HK courts. Judgment in those cases has just been handed down. The author briefly revisits the points he made in his commentary to see whether his contentions were addressed. The author suggests that, perhaps for better, but probably for worse, some matters remain outstanding.

In a recent civil case, the Court of Final Appeal decided to make a reference to the Standing Committee of the National People's Congress under Art 158(3) of the Basic Law to interpret certain other provisions of the Basic Law central to the issues and outcome of the case. By applying the constitutional game analytical framework, this article analyses why the Court of Final Appeal initiated the reference procedure in the way that it did.

The Court of Final Appeal's decision to make a judicial reference of questions of interpretation of the Basic Law of the HKSAR in the Congo case may be a watershed event in the legal history of the HKSAR. This is because of the majority judges deciding to engage with the Standing Committee of the National People's Congress, and submitting to it for interpretation, among others, the question, controlled by statute, that the common law be applied "subject to such modifications, adaptations, limitations or exceptions as are necessary so as to bring [it] into conformity with the status of Hong Kong after resumption by the People's Republic of China of the exercise of sovereignty over Hong Kong". The judicial system of the HKSAR and the legal system of mainland China become conjoined as a result of the opened gateway.

In this Comment, the author advances the following arguments: (1) the law of state immunity does not fall within the common law act of state doctrine as enshrined in Art 19 of the Basic Law; (2) as a matter of comity, even though the determination of state of immunity is not an act of state, the judiciary and the executive should speak with one voice on foreign affairs, and therefore the HKSAR courts should observe the doctrine of absolute immunity; and (3) the CFA does not have to refer the interpretation of Arts 13 and 19 to the SCNPC as the Court would not need to rely or apply either Arts 13 or 19 in resolving this dispute as the "one voice" principle on international affairs follows from the application of another common law principle and not the common law act of state doctrine encapsulated under Art 19.

In DRC v FG Hemisphere both the majority and minority opinions in the Court of Final Appeal treated international law as irrelevant for the decision which was supposed to be taken on the basis of constitutional principle alone. This was a mistaken course with potentially very negative consequences for the rule of law in Hong Kong. The minority treated decisions taken on sovereign immunity by HK courts in the past as frozen into precedents in common law and therefore deriving their strength only from the common law of Hong Kong. On the other hand the majority effectively decided that any issue coming before it which involves international law is automatically a matter of foreign affairs and that it is up to the PRC to tell the HK courts what is the interpretation of international law. The article argues that in future HK courts should treat the law of sovereign immunity as sui generis having no implications for their approach to other international law questions.

By a 3-2 split decision, the Court of Final Appeal decided for the first time in its history to seek an interpretation of the Basic Law from the Standing Committee of the National People's Congress before rendering its final decision on Hong Kong's legal position on State immunity. This article contends that the problem does not lie in the majority's decision to refer, but in the way the Office of the Commissioner of the Ministry of Foreign Affairs in Hong Kong intervened in the matter. The article argues that this intervention undermines Hong Kong's judicial independence and autonomy. This article further discusses the problematic and inconsistent treatment of certain issues by the majority.

The Court of Final Appeal's decision in Congo v FG Hemisphere has significant human rights implications beyond the borders of Hong Kong. Current and former heads of state wanted for crimes against humanity or grand corruption can rest assured that the Hong Kong court will not strip them of immunity from prosecution like the House of Lords did in the case concerning General Augusto Pinochet. Former leaders need only worry that the immunity has not been waived by the new rulers. Stolen state assets are also safe in Hong Kong, subject only to waiver of immunity and United Nations Security Council sanctions which China has allowed Hong Kong to implement and enforce.

Article 23 of the Basic Law remains an unresolved issue - it is now more than eight years since the HKSAR government's first and only attempt to legislate on the matter in 2003. This article explores how implementing Article 23 is not only a constitutional duty, but an opportunity to create balanced laws with reference to international standards that preserve fundamental rights and freedoms. Macau's implementation of their identical Article 23 in 2009 could provide a potential model for the HKSAR to formulate its own legislative blueprint. The HKSAR government needs to emerge from its state of inertia regarding Article 23, and embrace the autonomy given under the Basic Law to enact its own national security laws

The prime concern of the HK government after the Second World War was to re-establish and consolidate colonial law and order in the face of the Communist threat. Emergency power became an important tool of the government, and was used to exert political order, and also to regulate economic and social activities in the 1950s, through to the 1970s. Despite repeated pressure from the UK government to incorporate the emergency power into local laws, the draconian emergency laws were only finally amended in 1995, in order to ensure its consistency with the Hong Kong Bill of Rights Ordinance, in the last phase of decolonisation in Hong Kong.

Contemporary theories of emergency powers have been so distracted by local debates that the broader aspirations of constitutionalism - subordinating arbitrary political power to law and managing internal conflict through non-violent institutional means - have been taken for granted. Drawing on the experiences of aspiring constitutional orders in Southeast Asia (East Timor, Malaysia, Singapore and Thailand) with emergency powers, this paper seeks to shift the attention of constitutional theorists away from parochial debates, towards an understanding of constitutional theory and emergency powers that extends beyond the familiar domain of liberal democracies. It begins by showing how contemporary theories of emergency powers are premised on assumptions about institutional stability. Then, using various Southeast Asian experiences, it exposes the importance of the social and political foundations for the project of constitutional constraint of state power. Finally, it suggests some important lessons for constitutional theory in established liberal democracies in its attempt to come to terms with emergency powers

The article inquires into the theories and operation of the limited partner's derivative action in the context of China. The revised Partnership Enterprise Law provides a new remedy for the limited partner to pursue an action in its own name to safeguard the interests of the limited partnership. However, the law does not set forth a basic legal framework for bringing such an action. By identifying the special features of the private equity market of China and the deficiency of other remedial mechanisms to the limited partners, this article discusses the needs of the derivative action in the private equity limited partnerships. It also proposes special rules that are in line with the Chinese market condition.

The rapid economic transition of China from planned to market economy in the past three decades has not only caused unprecedented changes in the structure and fabric of Chinese society but also nationwide social grievances. These grievances need channels for their unleashing and for their settlement; otherwise they may escalate into more intense, organised and widespread demands on the political system, and threaten the legitimacy of the ruling class. This paper studies the state's control and strategic utilisation of courts and alternative dispute resolution (ADR) mechanisms to channel the social grievances in China. The central arguments are: (1) the Chinese regulatory style and protection systems remain largely unidirectional, ie emanate from state actors and imposed upon the citizenry, as opposed to protecting individual rights from abuse by the government and third parties; (2) the government has both the stake and capacity to oversee the manner in which disputes arise and are resolved, and court is but one of the many state-sponsored forums to channel social grievances and maintain social stability; and (3) the present trend to politicise and bureaucratise the court and ADRs is a real threat to social and political stability.

Any legal system can only be as good as the legal professionals who make it work. China's judges, procurators, lawyers and notaries are emerging as quite separate professions, presently numbering around 600,000. Could there be a legal community among these professionals, perhaps with others who are interested in law, such as the teachers in China's 600 law schools, or even the police? Such a community could be a powerful influence toward rule by law or even rule of law in China. This article examines the arguments for the development of such a community, the factors which might promote or hinder the emergence of a legal community and the prospects for its emergence in the near future. The conclusion is that the hindering factors are stronger, and that such a community is unlikely to emerge in the near future, and may never emerge.

In deciding whether a foreign domestic helper could acquire the right of abode, (1) the Court of First Instance (CFI) was right to have rejected any reliance on an Immigration Department booklet published in April 1997 as it lacked any probative value in discerning the Sino-British understanding of the term "ordinarily resided" under Art 24(2)(4) of the Basic Law; (2) however, the CFI had misapplied the Court of Final Appeal (CFA) precedent in Chong Fung Yuen when rejecting the 1996 Opinions of the Preparatory Committee in its interpretation of Art 24(2)(4); and (3) the CFI wrongly assumed that, in deciding what constitutes "ordinary residence", the CFA in Prem Singh had merely required one's residence to be adopted voluntarily and for a settled purpose.

One of the issues raised by the Vallejos case (the Foreign Domestic Helpers Case) is to what extent, if any, the fundamental legal issues which the court was called upon to decide in this case had already been dealt with by the National People's Congress Standing Committee when it issued its first Interpretation of the Basic Law in June 1999. This article discusses the relevance to this case of the 1999 Interpretation and the Preparatory Committee's Opinion which it referred to. It suggests that these documents enable us to have a better and fuller understanding of the legislative intent behind Art 24(2) of the Basic Law. Such legislative intent is consistent with, and converges with, the common understanding of the Chinese and British Governments of the intent behind the relevant provisions in the Sino-British Joint Declaration of 1984 that correspond to Art 24(2). The intent was to set out the basic principles governing permanent resident status and right of abode in the HKSAR, and to confer on the legislature of the HKSAR a broad power and a wide margin of appreciation in implementing and elaborating such basic principles by more detailed legislative rules

IHong Kong is one of the world's leading maritime centres. With a large shipping register and vibrant maritime cluster the economic and human consequences of piracy are an ongoing encumbrance. The international response to maritime piracy has evolved in recent years to incorporate numerous non-binding recommendations and general guidance for shipowners, masters, ship security officers and States. The Marine Department of Hong Kong has taken proactive steps to encourage compliance with guidelines and assist in international efforts to combat piracy; in particular it has attempted to address the growing interest in the use of private security consultants, armed guards and naval forces on board ships. This article examines maritime piracy from a Hong Kong perspective taking account of international law and recommendations. The article considers the controversial use of armed guards and carriage of weapons in light of International Maritime Organisation and Marine Department guidelines and the relevant local legal requirements.

This paper presents a case study analysis of the Hong Kong Special Administrative Region (the HKSAR)-New Zealand (NZ) Double Tax Agreement (DTA) in the context of the DTA negotiating practices of the two jurisdictions. By way of background it first examines the HKSAR's emerging DTA programme and contrasts this with the approach to negotiating DTAs that is adopted by NZ. The paper concludes that the HKSAR-NZ DTA is an important milestone for the two jurisdictions, with the interplay with the People's Republic of China (PRC) a potentially challenging factor that needs to be incorporated into the practical ramifications of this new HKSAR-NZ DTA.

Mediator immunity has been identified as one major issue for possible future mediation legislation in the 2010 Consultation Paper released by the Hong Kong Government. So far there is no uniform stance on the issue around the world. This paper analyses relevant methods for determining mediator liability and the scope of that liability in different countries. Hong Kong's revised Arbitration Ordinance has taken a forward through its qualified immunity position with respect to the issue of mediator liability under the arbitration framework. This position is commendable for adapting to the current trend of dispute resolution. The paper concludes that a similar approach should be adopted in future mediation legislation in Hong Kong.

In Leung Ka Lau v Hospital Authority the plaintiffs were doctors who claimed compensation for, inter alia, enforced overtime extracted without pay from them by their employer, the defendants. The Court of First Instance, the Court of Appeal and the Court of Final Appeal dismissed their overtime claims on purely the terms of their contracts of employment. This paper argues that the decisions of all three courts on the overtime claims were made per incuriam because their attention was not drawn to the applicable statutory provisions which would have invalidated the contractual provisions on which the courts rested their decisions. The paper sketches the socio-economic and ethical basis of overtime work and pay before proceeding to analyse the common law (contractual) basis of the judgments, traces the history as well as undertakes construction of the statutory provisions which, if taken into account, would have seen the plaintiffs succeeding.

This paper comparatively examines the history of copyright and authorship in China, France and England. It argues that the copyright history of imperial China and pre-1520 France reveals a phenomenon whereby copyright was viewed more as a means for rewarding authors, publishers and investors than monopoly or property. It also argues that authorship, which was highly regarded in China's literary tradition, was linked not to proprietorship but to originality and rewarding it. The paper concludes that viewing reward as the core basis for copyright challenges the absolute concept of property right ownership and opens the door to more flexible solutions that may better encourage creativity.

The judgment of W v Registrar of Marriages held that, following Corbett v Corbett (Otherwise Ashley), a post-operative male-to-female transsexual was not a woman; and consequently was not eligible to marry her boyfriend. This paper, putting aside much of the criticisms of Corbett and assuming that it was a decision to be followed, examines W's treatment of Corbett and the legal definition of marriage. It submits that, even if it might have been right to follow Corbett, W, in placing emphasis on the doctrine of the Church of England and procreation, went further than Corbett. It argues that this is a retrogressive development for marriage law in Hong Kong.

Following the Court of Final Appeal decision in LKW v DD in 2010, the court's statutory discretion to make an ancillary relief award on divorce is directed to achieve fairness between the parties by reference to three key factors: needs, compensation and equal sharing between parties. The latter factor reflects the concept of marriage as a partnership of equals, each of whom makes a different but equal contribution to the family. Traditionally, under Hong Kong and English law, the court's jurisdiction to make ancillary relief awards could not be ousted by pre- or post- nuptial agreements. However, last year the United Kingdom Supreme Court in Granatino v Radmacher gave decisive weight to the parties' pre-nuptial agreement when making an ancillary relief award. One of the primary reasons for this development was the Court's view that fairness would be best achieved by respect for the parties' autonomy rather than by imposing the court's own view. This article will explore whether the Hong Kong courts can and should follow Radmacher, both in terms of achieving gender fairness in ancillary relief awards and conformity with the rules of stare decisis.

There is a current of scholarly opinion which holds that traditional Chinese law, both penal and civil, should be analysed as a system of administration rather than adjudication or as "law without rules", where the task of the judge is to find an equitable solution to the facts before him, whether through the allocation of an appropriate punishment or the resolution of a dispute. From this perspective, the penal codes are not sets of rules which the courts are obliged to apply but schedules of offences and punishments from which the judge chooses that which in his view is the most apposite to the case before him. This approach is tested through an analysis of three technical terms used by the Board of Punishments in homicide decisions to evaluate sentences for offences recommended by the provincial authorities: yunxie (in agreement with the law), pingyun (equitable or fair), and ping (match between law and facts). The conclusion is reached that such expressions merely exhibit the way in which the Board ensures that the rules of the code are consistently applied by the various judicial authorities to the facts of the case. Judges have a discretion, but this is to be exercised within the constraints established by the rules.

Six months before leaving office, the Bush administration reawakened a sleeping giant. On 18 June 2008 it launched negotiations for a bilateral investment treaty (BIT) between the United States and China, reviving a failed struggle that was abandoned 20 years ago. With the potential to unleash billions of dollars of US investment into formerly sequestered sectors and to spur the spending of trillions of dollars of Chinese reserve funds back into the United States, this BIT could harbinger a new era of investment between the United States and China. However, it will not come without difficulties. In view of the sometimes clashing treaty viewpoints of the United States and China, what is the likely look of this BIT? And with promises of billions of dollars of investment at stake, what are its likely effects? These are the two questions this article aims to answer. The countries' staunchly divergent stances on pre-establishment, non-discriminatory, national, and most favored nation treatment will undoubtedly challenge the likely look, but the vast wealth controlled by both the U.S. and China portends a potentially immense effect. Overall, while the quest to sign a US-China BIT could be the "most difficult one in history", it may also prove the most worthwhile.