Hong Kong Law Journal 1971 - 2024

The words “malice” and “malicious” continue to be found in Hong Kong legislation and case law, particularly in crime and defamation where they remain embedded as elements of offences and defences. The meaning of these terms is highly variable, dependent on their context and a host of impressionistic factors, causing significant problems for courts, counsel and laypersons alike. The courts have developed rules and practices to mitigate these problems in some quarters and to some degree, but legislative reform, which has been carried out in other jurisdictions, should be undertaken to retire this obfuscating terminology and promote the clarity, accessibility and utility of the law.

When medical disputes arise, it is painful for both the patient/family and the doctor if the resolution takes a prolonged amount of time and/or involves high costs. The major options available for resolution are litigation or complaint to the Medical Council. Both options can be lengthy, and the former is costly. The latter option only provides judgment on professional standards; it does not lead to compensation for damages. Mediation as a form of alternate dispute resolution (ADR) for medical issues has not been widely used in many common law jurisdictions which share similar systems of medical training. A new system for handling complaints to the Medical Council/Board should be considered not only to speed up the process but also to integrate ADR within the system. Hong Kong as well as other common law jurisdictions in the Asia Pacific region, such as Singapore and Australia, impose similar medical standard and are also arbitration friendly with the rule of law protecting the public interest. These countries could be appropriate places to test out the feasibility of medical arbitration. Society is expecting more disputes in medicine with increasing emphasis on standards of care through the “prudent patient test”. It is time to consider medical arbitration as a form of ADR to resolve disputes more quickly and efficiently in lieu of court proceedings.

In this comment, we argue that the co-location arrangement proposed by the Hong Kong Special Administrative Region Government is consistent with the Basic Law. Co-location does not engage art 18 of the Basic Law because, for the purpose of art 18, the land comprising the Mainland Port Area (MPA) would no longer be in Hong Kong. This is the legal consequence of the Government’s exercise of its power under art 7 of the Basic Law to relinquish legal control over land. Specifically, the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA in favour of the PRC authorities for customs, immigration and quarantine procedures as (1) co-location is derivative of, and in service to, the Government’s power under art 7 of the Basic Law to lease land; (2) the Government’s aim of achieving efficient high-speed rail interconnectivity between Hong Kong and Mainland China is legitimate; (3) co-location is reasonably adapted to the attainment of this legitimate aim; and (4) co-location does not violate fundamental rights enjoyed by residents living in Hong Kong. Since the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA for co-location, the provisions that deem the MPA outside Hong Kong are constitutional, and therefore, the land comprising the MPA would not be in Hong Kong for the purpose of art 18.

Around the world, it is common for courts to defer to executive or legislative authorities in adjudicating human rights issues, on the ground that the latter possess more expertise or democratic legitimacy to assess such issues. Hong Kong is no exception. This article reports the findings of the first empirical study of judicial deference in this jurisdiction. This study identified how often deference arose as an issue in human rights cases, what jurisprudence shaped the courts’ approaches to deference, and the relative impact of various factors on the degree of deference between 1997 and 2014. These findings will enhance an understanding of deference and provide an empirical basis for descriptions on, and normative assessments of, the courts’ approaches to deference.

A legitimate expectation is said to arise as a result of a promise, a representation, a practice or a policy made, adopted or announced by or on behalf of a government or a public authority. Even in the absence of a contractual or substantive right, a legitimate expectation may enable an individual to seek legal redress which makes the legitimate expectation a key principle in a number of domestic and international legal orders. First, this article presents the concept of legitimate expectations in its broader context with the objective to define in different (and sometimes overlapping) legal orders. The source of the concept in each legal order shall be briefly discussed. Second, this article focuses on invoking the concept of legitimate expectations in bringing judicial review proceedings before a Hong Kong court and an investment arbitration dispute before an international arbitral tribunal. Great effort was made to identify and compare the discrepancies of the concept in the two legal orders. In particular, the analysis seeks to conclude whether international investment law or domestic public law provides a broader notion of the concept in favour of the suing party. Third, in light of the contexts, it was concluded to which the concept applies. Finally, the article demonstrates that the concept of legitimate expectations under international law applies a wider notion of that than in the domestic judicial review proceedings. However, having acknowledged the wide and divergent socio-legal considerations of domestic public law and international investment law, this article concludes that whether an applicant is more strategic to launch a judicial review proceeding or an international investment arbitration is based on the facts of each particular case.

Investor-state dispute settlement remains bedevilled by a search for a balanced standard of review. Although there is an increasing reliance on the proportionality doctrine, which partly adopts a reasonable analysis as a subpart of a broader standard of review, it has not effectively engendered a balanced outcome. Rather, it has essentially undermined the generation of normative coherence. Consequently, it is contended that a reasonable standard of review benchmarked on the interpretative flexibility should be adopted in the investment arbitration. Such a review will be defined by the following dynamic features: (1) an autonomous reasonable review, (2) a reasonable review applied as a subpart of broader standards of review provided fair outcomes define the analysis and (3) the application should be restricted neither to an objective review nor to a subjective review. Rather, a conflation of both could be considered, if necessary, depending on the circumstances.

Since the Asian financial crisis of 1997, Hong Kong and Singapore have implemented reforms that promote independence and monitoring competency of the boards of directors of their listed companies. However, with the advent of the financial crisis of 2007/2008, a wave of fraud cases prompted the question as to the effectiveness of these reforms. Analysing a sample of 62 listed companies which were found to have committed fraud between 2007 and 2014 and comparing them against a matched sample of non-fraud companies, we found that fraud companies tend to combine the roles of chairman and chief executive officer (or they are close family members) and have fewer non-accounting finance experts on their boards. They were also likely to be overseas Chinese firms. Analysing the specific case studies of fraud, the reasons for the lack of effectiveness in the independent directors in preventing fraud are likely due to the difficulties in obtaining access to information in approving conflicted transactions, low threat of enforcement actions, their incentives to side with controlling shareholders and the challenges in regulating foreign listings

The Court of Final Appeal repeated in Yau Wai Ching v Chief Executive of HKSAR its position as stated in a few previous cases that the Standing Committee of the National People’s Congress (NPCSC) can clarify and supplement the Basic Law through its interpretation. This article questions that position. Through examining the evolution of the NPCSC’s legislative interpretation authority, this article argues that the enactment and implementation of the Legislation Law has imposed limits on the NPCSC’s authority to supplement the Basic Law through legislative interpretation. It further discusses the interaction between the NPCSC and the CFA in the interpretation of the Basic Law and makes a comparison with the mechanism to resolve conflict in interpretation between national courts and the European Court of Human Rights with regard to the European Convention on Human Rights. This article adds a novel intellectual approach to a very thorny issue and proposes some alternatives to resolve possible conflict between the NPCSC and the CFA with regard to the interpretation of the Basic Law.

This article debunks the myth that securities regulation in Hong Kong is less accommodating to crowdfunding (CF) activities when compared to regulation in other international financial centres. While the Securities and Futures Commission has been less proactive in responding to calls for lighter regulation on CF, this article shows that Hong Kong’s existing securities regulation does not lag behind in providing gateways for CF activities. Among the gateways available, while the small-size offering exemption threshold is lower than those provided in other jurisdictions such as the United Kingdom or Singapore, when it comes to raising capital from accredited investors — the type of investors most coveted by entrepreneurs and start-ups — the Hong Kong regime is more friendly. In fact, it is arguably broadly on the same page as the accredited investor exemption regime in the United States. This article examines how the key exemptions to securities regulation in Hong Kong can be fully utilised in the context of CF, especially after the recent Court of Final Appeal decision in Securities and Futures Commission v Pacific Sun Advisors Ltd. As it appears that the market has not fully grasped the purport of Pacific Sun, this article attempts to untangle the regulatory thicket. Hopefully, small and emerging companies will see the potentials of Hong Kong as a platform for capital raising via the Internet.

Drawing from courtroom discourses in the petition office of a Chinese court, this article analyses an emerging politicised legal discourse, deployed by judges to accommodate petitioners. Embedded in the political context of contemporary China, this discourse reconciles the tensions between the rule of law policy and the stability maintenance concerns and enforces the official perspective of legality. To construct a “lawful” claim and relieve petitioners with reference to the law, petitioners are diverted to exhaust routine legal proceedings and to pursue retrials, most of which end up fruitless. In this process of legality construction, petitioners’ resistance against the official discourse dominance is defined as unlawful or even criminalised, and their voicing of grievances is oppressed. The findings and analysis shed light on how the law matters to the management of popular resistance in authoritarian regimes.

China is making yet another attempt at civil codification, a process that in reality will re-conceptualise private law and lay down the fundamental principles that will regulate civil and commercial relationships between and among individuals and economic entities. This article first provides a brief review of the legislative efforts at civil codification in China and, through this review, explains the various ideological and theoretical battles that raged during these attempts at civil codification. This article also outlines challenges facing jurists, policy and law makers involved in this latest attempt at codification. It is the view of the author that the final outcome of the continuing ideological and theoretical battles will not only shape the form of the present civil codification (and its resultant civil code) but also, much more importantly, define the nature of private law in China.

As persons with mental disabilities become more frequently involved in the justice system, China faces the task of strengthening rights protection for this vulnerable group. This article is an overview of China’s recent efforts in conducting mental health law reforms. It explores the international and domestic forces shaping mental health law reforms in China. After discussing the primary accomplishments of these reforms, it identifies the limitations of the reforms and explores how international standards are implemented by recommending the necessary procedural safeguards for further improving China’s mental health law.

This is the first comprehensive research on the regulatory behaviours of the China Securities Regulatory Commission (CSRC). The CSRC’s regulation of sponsors will be investigated through a historical perspective to determine its general regulatory strategy and the underlying motivations. The CSRC makes great efforts to achieve a subtle balance among the Party-state’s political will, its own desire as a regulator and market demands. The CSRC distinguishes the primary goal from the subordinate goal of the Party-state’s political will, and it aims to ensure that the primary goal is realised. However, it sometimes protects its regulatory domain at the expense of the subordinate one. Furthermore, through implementing “hidden rules” and “assimilating self-regulation”, the CSRC has enlarged its ex ante regulatory power and built a solid interest-exchanging regime with powerful financial intermediaries. The CSRC also notes that the market has needs that must be fulfilled (maybe only partly), especially when the pressure from individual investors is rapidly mounting. Finally, maintaining such a subtle balance among different goals incurs excessive cost. The CSRC’s regulation lacks basic stability and consistency, and it is merely an instrument to coordinate different goals and values.