Hong Kong Law Journal 1971 - 2024

In a highly controversial statement, the Liaison Office of the Central People's Government in Hong Kong claimed that it is not "a department of the Central People's Government" within the meaning of art 22 of the Basic Law and hence not subject to the constitutional restraint of non-interference with the internal affairs of Hong Kong. The statement has received support from the Hong Kong and Macau Affairs Office and the Chief Executive of the Hong Kong Special Administrative Region, but has aroused widespread concern on the extent of the autonomy of Hong Kong under the Basic Law. This article argues that the view of the Liaison Office is untenable, and may represent a change of policy towards Hong Kong.

This Analysis demonstrates in the simplest manner that the Basic Law of the Hong Kong Special Administrative Region could not have authorised the courts it established to enforce non-applicable laws that violate itself. This lack of judicial authority to enforce laws inconsistent with the Basic Law cannot in itself be curtailed, even by a Standing Committee Interpretation without contradiction. Nor can the courts' obligation to ascertain the consistency of primary and subsidiary legislation with the Basic Law be prohibited by such an Interpretation without reducing the Basic Law into a non-justiciable paper tiger. Judicial enforcement of the Basic Law does not imperil Chinese sovereignty; if anything, it enhances the reputation and credibility of the Basic Law, the centre-piece of "One Country, Two Systems".

On 4 March 2020, the Court of First Instance gave judgment in Infinger v Hong Kong Housing Authority, allowing the application for judicial review against the Housing Authority's policy to exclude same-sex couples from eligibility to apply for Public Rental Housing (PRH) as "Ordinary Families" under the "General Application" category (the Spousal Policy). Specifically, the Court observed that there was "a dearth of evidence" on the impact of the differential treatment under the Spousal Policy on the advancement of the "Family Aim", which is to preserve family formation constituted by heterosexual marriage. Neither were there sufficient materials to conclude that the Spousal Policy made any "significant or real difference" to the overall availability of PRH to traditional families. The Court also held that a fair balance had not been struck between the Spousal Policy and the protection of equality for lesbian, gay and bisexual (LGB) persons. In response to the judgment, this article reviews quantitative evidence to demonstrate that the differential treatment under the Spousal Policy did not significantly advance the Family Aim, and that the Spousal Policy imposed a severe economic penalty on LGB individuals in Hong Kong. The data analysis presented buttresses the Court's ruling that the Spousal Policy failed the third and fourth limbs of the proportionality test.

Air travel, by definition, involves multiple foreign elements. It is therefore important that there be uniformity of relevant laws across jurisdictions. A unified liability regime was first created by the Warsaw Convention of 1929 and then modernised by the Montreal Convention of 1999. Although the Warsaw Convention and the Montreal Convention have been regarded as successful conventions in international air law, art 17, the key article for passenger injuries, has been criticised for being ambiguous and outdated. Consequently, domestic courts that have interpreted art 17 have tended to stretch the textual meaning of "bodily injury". This article reviews landmark passenger injury cases in the United Kingdom and the United States and analyses the Hong Kong decisions on passenger injuries. Further, the article anticipates that Hong Kong courts are likely to render decisions that include mental injuries under the Montreal Convention.

Laying down how Hong Kong is to be governed and the fundamental rights and freedoms to which people here are entitled, our constitution the Basic Law is entrenched and safeguarded by the judicial remedy of constitutional review. If susceptible of a remedial interpretation, problematical legislation will be rendered constitutional by reading up or reading down. Otherwise it will be struck down. If a striking-down order is unavoidable, it will be tailored to preserve as much of the legislation qualitatively as constitutionally possible. Where the struck-down legislation's aim is worthwhile, the courts may, in cases of necessity, suspend the striking-down order for a limited period to afford an opportunity for corrective legislation. This enables the executive, during the suspension period, to function under what had been declared unconstitutional without acting contrary to the declaration. But it does not provide a shield from legal liability.

This article provides an analysis of the contribution of two justices, Sir Owen Dixon and Sir Victor Windeyer, of the High Court of Australia in the 1950s. Each of them, in their contrasting ways, has left an enduring and important legacy. While Dixon CJ was the more famous of the two jurists with his adherence to strict and complete legalism, it may well be that Windeyer J's approach with his focus on the historical development of principle, grows ever more prominent in the twenty-first century. The impact of what can be discerned as their mutually reinforcing composite legal method continues to resonate in terms of the common law, and the long-standing ties between the United Kingdom and Australia.

This article addresses the remedial approach which ought to be taken in relation to proprietary estoppel, an important matter which Hong Kong courts have yet to address explicitly. Drawing from the divergent experiences of England, Australia and Singapore, it makes two central points. First, the provision of expectation relief, as opposed to compensation for reliance loss (the "minimum equity" approach) ought to be adopted as a weak starting point for analysis. Second, to say that "expectation relief" is the starting point should be taken to mean that the claimant's expectation will prima facie be enforced in specie, as opposed simply to a prima facie award of the monetary value of the claimant's expectation.

In common with much of the world, the populations of both England and Hong Kong are ageing. One of the most important questions of our age is therefore how to allocate the burdens of providing and funding the care that increasing numbers of people are likely to need. Another vital question affecting the elderly and their families is that of inheritance: How legitimate is the claim of family members (including adult children) to a person's assets? The aim of this article is to explore the relationship between these questions, with reference to concepts such as the "social contract" and family solidarity, and the law of family provision in England and Hong Kong.

This article describes the current laws regarding parental corporal punishment against children in Hong Kong and contrasts them with the region's obligations under the United Nations Convention on the Rights of the Child. Hong Kong permits certain forms of corporal punishment through the defence of "reasonable chastisement" and is therefore in prima facie breach of the Convention. However, the Convention invokes the de minimis principle to restrict the scope of prosecutions in favour of keeping families together. It advocates education and sensitisation in all but extreme cases. Hong Kong's restrictions on the application of this defence and its positive actions to shift cultural norms away from corporal punishment, mean that the substance, if not the letter, of the law is relatively well-aligned to that of the Convention. However, the continuance of the defence may provide an obstacle to early stage intervention and the evolution of cultural norms. The article considers whether the defence of reasonable chastisement remains necessary today, the possible virtues and costs of removing the defence, as well as policy improvements in light of human rights law that could help to realise the right of children to be protected from corporal punishment.

The granting of intellectual property rights to outer space activities is of great significance for the sustainable development of space commercialisation. While the space treaties and intellectual property treaties contain no legal provision which explicitly mentions the protection of intellectual property rights in outer space, it does not necessarily mean that there is a legal loophole in this regard. This article argues that art VIII of the Outer Space Treaty itself offers a self-contained mechanism that would enable guaranteed levels of functional intellectual property rights in outer space. This mechanism uses space objects as a connecting factor to link space activities with existing laws to realise functional sovereignty. Thus, art VIII provides a solid legal foundation for enhanced space legislation by individual countries: intellectual property rights stemming from space activities remain legally protected through the extension of existing intellectual property laws. In the long run, the legal harmonisation of an international treaty for intellectual property protection in outer space may be needed.

Empirical studies suggest that robots could outperform humans in commoditised legal tasks which have traditionally been assigned to, and undertaken by, humans. We should therefore not be surprised to witness "robotised arbitrations" in the near future. That prediction, however, raises a number of questions: Can we rely on a decision delivered by a source with which we have had no human interaction previously? Do we appreciate and actually seek emotionally detached decisions after all? More importantly, are we emotionally prepared to task a machine with fact-finding-and-resolution skills that may outperform us? This article proposes a thought-provoking look into the strengths and weaknesses of robots and humans and aims (i) to raise awareness to the effects of artificial intelligence (AI) in international arbitration; and (ii) to draw to the readers' attention that this is an opportune occasion to embrace AI as a tool to develop and perfect dispute resolution mechanisms and the approach to problem-solving.

An increasing number of academics, in and outside China, have expressed unprecedented pessimism or dismissiveness regarding China's legal reforms under the leadership of Xi Jinping, especially with regard to the future direction of the reforms. These are such, despite the continuing, extensive legal reforms which were launched in 2013/2014 and continue till today. This article takes a contextual approach to examining several aspects of legal development that are important to the establishment of a rule of law in China. It analyses the various emerging trends in Xi's "New Era" that seem to have set off alarms of retreat from politico-legal reforms that were initially launched in 1978. This article concludes that, if Xi's China is entering a "New Era", this new era, as far as legal reforms are concerned, is likely to be one regressing from, rather than progressing towards, establishing a genuine rule of law. While the pace and path will be uncertain and difficult to predict, many of the politico-legal reforms initiated by Deng Xiaoping, developed by his successors, and theorised by no less than three generations of legal scholars have ended.

This article examines the Chinese law in respect of third parties' rights against insurers and insurers' defences on claims brought by third parties in liability insurance. The article considers whether injured third parties receive sufficient protection by the operation of the Chinese Insurance Law and judicial practice, and demonstrates that existing law does not provide third parties with sufficient protection in the event of the insured's insolvency, death or disappearance. The article recommends that where such an event occurs, rights should be conferred upon third parties against liability insurers. Moreover, the article identifies a lacuna in Chinese Insurance Law in respect of insurers' rights to rely on defences to the third parties' actions. Finally, a number of ambiguities in art 65 of the Insurance Law and in judicial rules are identified and clarified.

The Qing Dynasty maintained an elaborate case review system under which, subject to the severity of the punishment, criminal cases were to be mandatorily reviewed by superior authorities and eventually by the emperor himself. Many authorities at different levels were involved in the review process. This article analyses the reasons why the Qing Dynasty maintained such a complex and well thought out case review system. Scholars offer different explanations of why judgments were subject to mandatory review during the Qing Dynasty. There is no crystal-clear answer to this question. However, two purposes seem to have been decisive. First, the Qing Dynasty used the case review system to develop its laws. Second, the case review system ensured the unified application of Qing law. Judicial bodies were highly integrated with the political system of the Qing Dynasty. The Qing Dynasty's case review system is thus a prime example of Shapiro's model of political courts.

This article examines the content of the Legal Treatise of the Draft Qing History from the perspective of a modern classification of morality: absolute, relative and that internal to law. The selection of edicts and memorials cited by the compilers as well as their own comments show: (i) the purpose of the law to support the moral teachings enshrined in the ritual and historical classics, as exemplified by a concern for the weak and oppressed and the exercise of benevolence and compassion in government (dimension of absolute morality); (ii) the correction of bad practices held by the people to be "good", such as the killing of adulterers (dimension of relative morality); and (iii) the need for openness, clarity and consistency in the enactment, formulation and application of the laws (dimension of the internal morality of law).