Hong Kong Law Journal 1971 - 2024

In this comment, we disagree with the Court of Appeal’s decision to disqualify two newly elected members of the Legislative Council from office. While we accept that the judiciary is empowered under Art 104 of the Basic Law to determine whether an oath taken is valid, it is our view that after the oath is judicially deemed invalid, it should be left to the President of LegCo to determine whether the lawmaker is to be denied a second chance of retaking the oath and be disqualified. First, the CA held that para 2(3) of the relevant Interpretation by the Standing Committee of the National People’s Congress “automatically disqualified [the pair of lawmakers] from assuming their offices”, but the term “automatic” or “automatically” is found nowhere in the Interpretation. The Interpretation only uses the term “forthwith”, which means “without delay”, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously. Second, reading ss 19 and 21 of the Oaths and Declarations Ordinance (Cap 11) together, we argue that a lawmaker can only be disqualified for declining to take the requisite oath if he had not taken a valid oath after a reasonable time had elapsed. Therefore, the lawmaker is not disqualified “automatically” on the first occasion where he declined to take the requisite oath. Third, the principle of non-intervention in the internal process of LegCo applies herein. Whilst the courts have jurisdiction to determine whether the President has the general power to grant or deny a newly elected LegCo member the opportunity of retaking the requisite oath after the original attempt was judicially deemed invalid, the courts will not exercise jurisdiction to determine the specific occasion or manner of exercise of this power by the President. Finally, if the Interpretation is treated as a piece of legislation instead of a judicial decision, and if Hong Kong courts were to approach this legislation using common law principles of statutory interpretation, the presumption against retrospectivity of legislation applies; and on the facts of this case, this Interpretation would not operate retrospectively to events that predated its announcement.

In Ho Kwok Tai v Collector of Stamp Revenue, the Court of Appeal held that the respondent taxpayer was not eligible for a refund of additional ad valorem stamp duty (AVD) where he completed the disposal of two residential properties he had previously owned shortly after entering into an agreement to purchase a single replacement property. This article critically analyses the court’s decision with reference to both the reasoning of the Court of First Instance’s judgment below, which found for the taxpayer, and the proper construction of s 29DF of the Stamp Duty Ordinance (Cap 117), which was the statutory provision on which the dispute turned. The Revenue’s appeal was allowed on the basis that the drafting of s 29DF suggested that a refund of additional AVD was only available in circumstances where the taxpayer disposed of a single original property shortly after acquiring a replacement property, and not, as in the appellant’s case, when two such original properties were sold. The commentary argues that with reference to the purposive context of the SDO and specifically the charge to additional AVD, the court’s decision was inconsistent with the plain policy purpose of the refund mechanism for additional AVD and by extension contrary to the legislature’s intent in enacting s 29DF.

The author, a Permanent Judge of the Hong Kong Court of Final Appeal, examines the offence of outraging public decency in order to illustrate the dynamism and limits of the common law. This article is the text of a lecture delivered by the author at the University of Hong Kong.

The author, the Companies Judge of the Court of First Instance of the High Court, examines the issues arising in recent years concerning cross-border insolvency in the Hong Kong context. This article is the text of a lecture delivered by the author at the University of Hong Kong on 17 November 2016.

Global constitutionalism is a popular topic among internationally oriented public law scholars. Drawing on modern comparative law scholarship, this article examines and discusses global constitutionalism from a critical point of view. Many contemporary authors seem to presume that the idea of constitutionalism is, or that it must be, universal. According to some views, constitutionalism has now gone global. In agreement with this thinking, the commitment to the rule of law, democracy and human rights has arguably become a defining feature in a global scale. In practice, this means that constitutionalism is regarded as relevant not only in the context of states but also when we assess and interpret the development of law beyond the state. This article interrogates underlying themes and calls the universality of global constitutionalism into question.

The escalating complaints of international brands about unauthorised use of their trade marks or resembling marks on non-competing goods or services have provoked rethinking of trade mark law. In Hong Kong, as in most other jurisdictions, there are specific statutory provisions for the protection of well-known trade marks. Comparing Hong Kong, UK and European authorities, this article examines the scope of ss 18(4) and 12(4) of the Trade Marks Ordinance (Cap 559), explains why they should be construed as limited to dissimilar goods and services and concludes that the Trade Marks Registry Work Manual is in desperate need of revision.

Although both failed attempts of copyright amendment in the Copyright (Amendment) 2011 and 2014 Bills shared with one another an emphasis on copyright’s limitation over free speech, the contract override issue indicates a particular confusion as to the nature of copyright, contract freedom and international obligation. As property right recognition gives constitutional support to copyright and contract serves as the means to individual freedom manifested in private property, contract override bears certain constitutional legitimacy. This article argues, however, that while property right has an inbuilt limitation from the needs of others, and the Victorian sanctity of contract has been gradually qualified by “the needs of the all”, the balance of rights and obligations to the consideration of public interest and social development is imperative and is an international obligation for intellectual property protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights subject to no derogation. The proposal that allows contract, as the means for individual freedom manifested in private property, to override those copyright exceptions aiming at limiting private rights for the balance of rights and obligations finds no jurisprudential support. This article calls for a careful examination of the nature of copyright, contract freedom and international obligation should Hong Kong’s copyright amendment effort resume.

The Global Competitiveness Index reveals that Hong Kong’s relative underperformance compared to Singapore is because it has lagged behind in boosting local innovation and performed less satisfactorily in technological advancement. This can be regarded as a result of inadequate government support. The Hong Kong government’s stubborn belief in its tax system prevents it from making a timely response to the changing environment. A global trend of providing generous tax incentives has made the tax system in Hong Kong less competitive in boosting and attracting investment into innovation. What can Hong Kong learn from experience elsewhere? This article explores the necessity of adopting research and development (R&D) tax incentives to spur innovation and achieve the technological advancement the Hong Kong government desires. The introduction of the R&D tax incentives in Hong Kong proposed in this article may present an opportunity for Hong Kong to keep up with the global trend of prioritising innovation.

While traditional Chinese medicine (TCM) has been categorically excluded as a valid medical system in many countries, it remains difficult to separate TCM from conventional medicine under the context of the creative economy. This is because there are increasing number of new drugs which not only rely solely on the technology of modern medicine but also take advantage of traditional medicine knowledge. The fragmentation of the international community has impeded the establishment of a more coherent international legal framework for the global health system. Moreover, the same degree of fragmentation at the national level also results in obstacles to the combination of the two medical systems. It is suggested that the World Health Organization could act as a platform to promote the combination of conventional medicine and TCM; however, national cooperation seems to be a more feasible and effective way of doing it, which could also complement the global health governance framework.

In Moody’s Investors Service Hong Kong Ltd v Securities and Futures Commission, the Securities and Futures Appeals Tribunal was required to determine whether a report issued by Moody’s fell within the scope of Hong Kong’s statutorily defined credit rating regime. The Tribunal determined that the report was either itself a credit rating or part and parcel of Moody’s credit rating services. This article analyses the Tribunal’s determination and concludes that it is flawed primarily as a result of concerns over its application of the purposive construction of statutory provisions and a failure to closely analyse the statutorily defined term “credit rating”. It is suggested that the determination gives rise to problematic consequences including blurring the regulatory perimeter of what constitutes a credit rating and providing credit rating services.

Since the activation of the new constitutional order of Hong Kong on 1 July 1997, a plethora of court decisions have directly or indirectly implemented the concepts of separation of powers, and constitutional review, in its strong form, although all two concepts were not explicitly stipulated in the Basic Law. On top of that, separation of powers and strong judicial review are distinctive features of the subnational constitutional order of Hong Kong given that they don’t mirror the constitutional configuration of China. While this unique configuration is explained by historical circumstances and is enshrined in the principle of “One Country, Two Systems”, this article takes into consideration the basic component of the separation of powers, the constitutional review, with the aim to distill how the doctrine of separation of powers in Hong Kong is influenced by subconstitutionalism. This article examines the development of judicial review, and how it was perceived and integrated in the current legal order. Then, it continues to analyse the breadth of this concept based on the relevant courts’ decisions. The main argument is that the model of separation of powers in Hong Kong due to its interaction with its subconstitutional character resembles the model of weak judicial review. This is a unique configuration which is explained based on two elements. First, the position of the Court of Final Appeal at the top level of the hierarchy of the judicial system with the power of finality, and second, the catalytic role of the National People’s Congress Standing Committee to interpret the Basic Law which can also be triggered by the Chief Executive.

United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses is the only international treaty that governs the uses and conservation of the waters that cross international boundaries. However, its major defects in territorial sovereignty and dispute settlement mechanism should not be ignored. International society should improve the Convention with amendments, interpretations and should play a bigger role of international organisation. China, although yet to ratify the Convention, will still be influenced potentially by the rule-making treaty on its uses and conservation of relevant waters. Given the advantages and feasibility of its accession to the Convention, China should make serious consideration to ratify the Convention for its national interests.

A letter of indemnity is commonly used in carriage of goods by sea. There are no relevant provisions in the Chinese Maritime Code 1992 regulating the letter of indemnity. The Chinese Contract Law 1999 is the appropriate statute law for issues relating to the letter of indemnity. However, Chinese judicial practice considered the letter of indemnity as part of a contract of carriage of goods by sea, and therefore the Chinese Maritime Code 1992 applies to disputes over the letter of indemnity. The judgments from the Chinese courts, including the Supreme People’s Court in The Orient Fortune and The Orient Fortune (No 2), showed a misunderstanding of the letter of indemnity and the uncertainty of judicial practice in maritime trials. This article examines the fundamental issues relating to the letter of indemnity in carriage of goods by sea and provides academic views on those issues.

The author is an American China scholar who spent 11 months in Hong Kong in 1963–1964 to study the Chinese law and government. This article portrays his adventures during his stay in Hong Kong, including his settling in the Colony, interviewing the refugees, establishing the Universities Service Centre, making a broad range of friends and learning some lessons on regionalism in China.