Hong Kong Law Journal 1971 - 2024

In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) de-cision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 deviated from the foregoing attitude to remedial constructive trusts. It recognised “unconscionabil-ity” as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad dis-cretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietary estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise from the adoption of such an approach in Hong Kong law.

The problem of online misinformation is one that jurisdictions worldwide have had to grapple with. Several countries have implemented legal strategies to counter online misinformation, in view of the threat that it poses to the foundations of liberal democracy. A leading example in this regard is Singapore, which enacted in quick succession the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA) and the Foreign Interference (Countermeasures) Act 2021 (FICA) — statutes which confer upon government authorities a range of powers to combat online misinformation of various stripes. These statutes, unsurprisingly, raise important issues relating to the constitutional right to freedom of speech in Singapore — several of which were directly addressed in the recent Singapore Court of Appeal decision of The Online Citizen Pte Ltd v Attorney-General [2021] 2 SLR 1358. This article will explore and analyse the interaction between the POFMA and FICA, on the one hand, and the right to free speech in Singapore, on the other, through the lens of this Court of Appeal decision.

Originally, perhaps ideally, disputes were resolved by the sovereign hearing the parties in person. But practicality has led to professional judges and professional advocates. The origins of present-day advocates in legal systems like ours can be traced to medieval England. Preparation before presentation in court is indispensable. Advocacy is like an iceberg, in that most of it lies beneath the surface. Cross-examination, much vaunted as an engine for discovering truth, is more apt to expose falsehood. Effective advocacy can win, and ineffective advocacy can lose, a case contrary to its merits. That uncomfortable reality is mitigated by the duty that advocates owe the court. And judges can sometimes redress an imbalance caused by inadequate advocacy. They are far better placed to do so when the inadequacy consists of putting something badly than when it consists of leaving out something important. Responding to interventions from the bench is an important aspect of advocacy. There is, today, more written advocacy than before. Overall that is an improvement, but it has a downside. Good, even very good, advocates can be made. Great advocates are born. While certain elements of advocacy are constant, precisely how any given case is best conducted depends on its circumstances. Advocates must exercise judgment. Settle, if possible. Battle, if necessary. Not everything objectionable on an opponent’s part calls for an objection. Advocacy is ultimately about persuasion.

It has been 25 years since the implementation of the Basic Law in Hong Kong, and half of the journey of “One Country, Two Systems” is over. It is time to look back on the past, reflect on the successes and failures, sum up experience and look to the future. This article examines six aspects of the history of the constitutional order of the Hong Kong Special Administrative Region, which are as follows: understanding of “One Country, Two Systems”, interpretation of the Basic Law, the making of national security law, political structure and its actual operation, constitutional order under the state of emergency and, finally, the Central Government’s governance and the expectations of Hong Kong residents. This article hopes to learn from history, identify problems, help seek solutions to problems and call for theoretical attention and innovation.

This article aims to contribute to the ongoing debate about the nature of the National Security Law in Hong Kong (NSL). It argues that the NSL represents the type of constitutional change that comes about not through a formal constitutional amendment, but is a result of both internal and external factors, in particular the rise of identity politics that has changed the political dynamics both within Hong Kong and between Hong Kong and Beijing since the 2010s. It also showcases the trilemma of national sovereignty, collective identity and Western liberalism.

This review surveys the case law dealing with the Hong Kong National Security Law (NSL) offences in the two years since the enactment of the NSL, with a view to identifying what we have learned about the four categories of NSL offences. The article is concerned primarily with Ch III of the NSL, headed “Offences and Penalties”, but also covers to a lesser extent Ch IV, dealing with “Jurisdiction, Applicable Law and Procedure”. Part 1 introduces the NSL offences regime. Part 2 will briefly summarise the enforcement of the NSL since its enactment. Part 3 will outline several key themes or rulings emerging from the case law relating to the integration of the NSL with existing HK criminal law and procedure. Part 4 will explore what we have learned about the NSL offences themselves and their elements, and how the courts have begun to shape these offences within HK’s existing common law legal system. Part 5 will offer some brief conclusions.

Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) in mid-2020, been vigorously enforced as an “offence endangering national security” within the meaning of the NSL by the National Security Department of the Hong Kong Police Force and the Department of Justice. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the NSL in order to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of sedition-like offences from other common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the NSL could be curtailed or circumscribed: (1) sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights Ordinance (Cap 383), and accordingly there is nothing to be revived for enforcement; (2) remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalising speech and expressive acts merely and plainly for their ascribed “intentions” and (3) several of the seven categories of “seditious intention” have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the NSL’s system of enforcement against persons alleged to have committed acts under those categories of “seditious intention”.

While the judiciary is generally regarded as the defender of the rule of law and fundamental rights, it is not uncommon that judges could also suppress democratic values. Courts around the world have legitimised undemocratic or even repressive law and practices. Authoritarian regimes tend to capture the judiciary, not only because the judiciary would provide the legitimacy for anti-democratic measures, but the nature of the institution could also masquerade such measures as a legitimate exercise of power that makes it more difficult to detect and respond to. This article examines the relationship between the Central Government and the judiciary of the Hong Kong Special Administrative Region (HKSAR). It focuses on the judicial responses when the Central Government decided to shift the emphasis from “Two Systems” to “One Country” under the constitutional design of the HKSAR and to exercise “full jurisdiction” over Hong Kong. By focusing on the reasoning and the context of the relevant cases, it argues that the responses of the judiciary amount to a weak form of “abusive judicial review”. The constitutional model of “One Country, Two Systems” implies mutual accommodation of the two systems, and convergence means reconciliation of the two systems rather than changing one system to conform with the other system. While there are incidents suggesting a strong form of “abusive judicial review”, it is argued that it is too early to draw this conclusion. The article also cautions that when the pendulum has swung from one extreme to the other, it is even more important for the judiciary to make full use of the tapestry of common law principles to strike a better balance between fundamental rights and protection of national security.

If rights are interpreted purposively, what is the purpose of the right to vote in Hong Kong? It means more than casting a ballot or being a candidate in elections. The right to vote serves to enable permanent residents to participate meaningfully in the electoral process and public affairs more generally. Meaningful participation implies that voters are informed of the relevant issues. Hong Kong underwent major reforms in its electoral systems in 2021. In the eyes of the public, the reforms had the effect of rendering the right to vote less meaningful, if not meaningless. In the future, the central and regional governments need to restore people’s confidence in the elections and bring back vibrancy to the right to vote in Hong Kong.

Excessive pricing is a controversial concept in competition law. Responses to excessive pricing vary around the world. A number of competition jurisdictions do not prohibit excessive pricing explicitly, and many jurisdictions that prohibit excessive pricing in their competition laws rarely enforce that prohibition. Some jurisdictions, however, are more proactive about enforcing excessive pricing rules. Hong Kong enacted its first cross-sector competition law, the Hong Kong Competition Ordinance (Cap 619), in June 2012, which came into effect in December 2015. Yet there is uncertainty about whether excessive pricing can be regulated through the Hong Kong Competition Ordinance. This article examines the enforceability of excessive pricing rules under that ordinance. Given the unique characteristics of Hong Kong competition law and related regulations, this article suggests that the Hong Kong Competition Commission should enforce excessive pricing rules strategically and presents recommendations about how to do so.

Article 50(4) of the Basic Law of the Macao Special Administrative Region (Macao) gives the Chief Executive the power to issue executive orders. The system of executive order that it establishes derives from three legal sources: the power granted to the Governor of Macao to issue commands, the Basic Law of Hong Kong Special Administration Region and relevant administrative provisions in the laws of the People’s Republic of China (PRC) regime. Macao’s system of executive orders covers a wide range of categories and topics, in line with the principles of legal reservation and administration by law. The basic legal attribute of an executive order in Macao is that of an administrative normative document, with a degree of legal effect lower than those of laws and administrative regulations but higher than those of the external normative instructions articulated by the Chief Executive and principal officials.

In July 2022, the United Nations Human Rights Committee, the treaty-monitoring body for the International Covenant on Civil and Political Rights (ICCPR), completed its fourth review of the Hong Kong Special Administrative Region of China. The Committee expressed grave concerns regarding the recent restrictions on civil liberties, particularly since the Law of the People’s Republic of China on Safeguarding National Security in Hong Kong (NSL) came into force. The Committee’s Concluding Observations — and the Hong Kong Government’s initial response to them — raise serious doubts as to whether local officials still view the ICCPR as a meaningful constraint on governmental power. The local courts could improve this situation by making a concerted effort to use the ICCPR and the jurisprudence of the Human Rights Committee as a guide to interpreting vague statutory language in the NSL and local sedition legislation. This would be entirely consistent with the approach that has long been followed by Hong Kong’s appellate courts. Yet, for some reason, we have not yet seen this approach in recent judgments convicting defendants of NSL and sedition offences. If this trend continues, then the ICCPR may eventually be viewed as mere “window dressing” in Hong Kong’s legal system.

China participated in the Singapore Convention on Mediation in 2019 with the aim of attempting to construct an effective mechanism to resolve international commercial disputes. This article analyses the challenges of the Singapore Convention to the Chinese mediation system by exploring the different functions and ideologies of dispute resolutions in different social contexts. The tension between the Singapore Convention and the domestic mediation law in China is analysed at both definitional and regulatory levels. The article concludes that not only is the tension conducive to the controversy around legal texts and institutional settings, but it also reflects the cultural and social differences beneath them.

Part I of the article provided an analytical review of the latest developments of domestic regulatory reform on foreign investments, the external pressures of the China–United States and China–European Union (EU) bilateral investment treaty (BIT) negotiations, the establishment of Free Trade Area of the Asia-Pacific and China’s participation in the Regional Comprehensive Partnership. Part II will address how these developments promoted China to adopt a gradual dual-track position for the legislative process of reforming foreign investment law. This Part will focus on how China used BIT negotiations to place pressure internally and improve domestic law to conform to global standards of investment liberalisation. With that in mind, this Part argues that China has achieved consensus over how investment liberalisation could be achieved in the legislative process of China’s foreign investment law. This Part further argues that regarding sensitive areas such as the scope of market entry in the negative list, intellectual property, competitive neutrality, labour standards and environmental protection, the basis of legislative considerations should be set scientifically and with due process, with considerations given to the external pressures of the investment liberalisation standards established by the EU and the United States. In all, this article concludes that the ideal approach of China’s foreign investment liberalisation is to connect China’s reality with the investment standards of the world, where the uniqueness of the Chinese characteristics of market governance are embraced but not overemphasised.

Through a comparative study of the UK House of Lords and the Chinese People’s Political Consultative Conference (CPPCC), this article intends to analyse how useful insights and experiences from the House of Lords might be applied to the construction of the CPPCC system. It argues that a number of similarities exist between the CPPCC and the House of Lords in terms of their nature, composition, power, status and actual functions. A key insight is that, like the House of Lords, the CPPCC also provides output legitimacy factors to the legislature system as a whole, for instance, by means of proportional party balance and the various expertise provided by its members for the optimisation of public policy and legislation. This existing functional advantage should be retained and further strengthened. The propositions of introducing an electoral system into the CPPCC or codifying its status and powers are likely either to lead to the loss of the CPPCC’s existing advantages and extremely high reform costs or to lack practical urgency. Long-term practice demonstrates that the CPPCC has formed a set of well-functioning mechanisms by relying on a soft law system that can adapt to its expected functions both at present and for the foreseeable future. Continued use of the soft law system to establish a mechanism for routine legislative consultation will be the key to fully realising the existing functions of the CPPCC and this constitutes the direct experience of the House of Lords to the construction of the CPPCC.

This article is the first to critically analyse China’s unique legislative approach on the right to explanation, which distinguishes between the public and private law scenarios. It argues that the differences in objects and goals between public and private law jurisprudence make it impossible to design a right to explanation that is uniformly applicable. In an individual–government scenario, an individual should have a right to request an explanation from public authorities of specific algorithmic decisions ex post, as a logical corollary to their right to know. If the explanation of algorithmic decisions infringes on the trade secrets of third parties or is impossible, the public authorities should not use the automated decision-making algorithm and refuse to explain the algorithmic decisions on this basis. Conversely, in an individual–enterprise scenario, an individual may only request an enterprise to disclose the basic information of algorithms ex ante and not infringe on the enterprise’s intellectual property rights; the enterprise should inform the individual of the potential adverse effects of the algorithm.

Drawing on 1,882 personal injury lawsuits involving medical negligence, this study presents the first empirical analysis of pain and suffering awards given by Chinese judges in the real-world setting of personal injury litigation. It investigates when judges refuse to award pain and suffering damages in personal injury cases, and whether the relevant guiding factors suggested by the Supreme People’s Court have a significant influence on award amounts of pain and suffering damages, as well as whether the deep pockets effect and the anchoring effect exist in Chinese personal injury litigation. We find that Chinese judges are more likely to refuse to award pain and suffering damages in cases where the plaintiff suffers minor injuries and a lesser amount of economic damages and where the plaintiff has not claimed pain and suffering damages. We further uncover that the injury severity, the economic damages and the causal contribution of the defendant’s negligence have a significant and positive influence on award amounts of pain and suffering damages in personal injury litigation. However, this study does not find any evidence supporting the deep pockets effect and the anchoring effect in Chinese personal injury lawsuits.