10 years of the basic law: the rise, retreat and resurgence of judicial power in Hong Kong

Since the National People's Congress Standing Committee's (NPCSC) reversal of the Court of Final Appeal's abrasive decision of Ng Ka Ling, the court has become cognizant of the repercussions of its decisions and has now adopted a pragmatic view toward its adjudicatory role. Where decisions implicate the validity of Mainland Chinese laws or NPCSC decisions, the court would always defer to the central government. Notwithstanding the court's recognition of the supremacy of the NPCSC, the court has remained very diligent in preserving its prerogative as the primary interpreter of the Basic Law. Where disputes concern alleged human rights violations that have no People's Republic of China (PRC) implications but have law and order implications in Hong Kong, the courts are generally conservative so as to afford the legislature or the executive much latitude in maintaining peace and stability. With regard to disputes with neither NPCSC nor domestic law and order implications, the court is confident that any political backlash against an adverse decision would be minimal; in these instances, the court is therefore more conscious of avoiding the austerity of tabulated legalism and is enthused about providing a generous interpretation of the Basic Law.published_or_final_versio

Collateral Challenges in Criminal Proceedings: Mayday for Citizens Radio

Analysispublished_or_final_versio

Vallejos Evangeline B. v Commissioner of Registration: why foreign domestic helpers do not have the right of abode

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.published_or_final_versio

Naked Error or Fashion Blunder? Condoms and Fancy Wear in the High Court

AnalysisRecently, Anselmo Reyes J in the Court of First Instance handed down two decisions on trade marks registration. In the first, Re Naked, his Lordship allowed the applicant to register the word 'Naked' as a trade mark for condoms whilst in the second, Re Alldressedup, the learned judge denied an application to register 'alldressedup' as a trade mark for jewellery, articles made from animal skins and clothing. This Comment seeks to argue that the approaches taken by Reyes J in the two cases vis-à-vis the registrability of trademarks are inconsistent with each other. It is also this author’s submission that Re Naked was correctly decided whilst the second applicant’s 'alldressedup' mark was wrongly denied registration for the class of goods relating to jewellery and articles made from animal skins and was correctly rejected for the class on clothing.published_or_final_versio

The "Dead" constitution: Crime and punishment in singapore

In Yong Vui Kong v Public Prosecutor, the Singapore Court of Appeal recently reaffi rmed the constitutionality of the mandatory death penalty for drug traffic cking offences under the Misuse of Drugs Act. Specifi cally, the Singapore Court held that the judicial obligation to impose a capital sentence, once guilt for the drug offence was so established, was neither a violation of the accused's constitutional right against the deprivation of his life in accordance with law nor a denial of his right to equal protection under the law. In this article, the author argues that, whilst one may be sympathetic to their Lordships for reaching the result they did, in light of the political realities underpinning Singapore's constitutional arrangement, the legal arguments advanced by the Court of Appeal for their decision unfortunately do not withstand close scrutiny.published_or_final_versio

Democratic Republic of the Congo v FG Hemisphere: why absolute immunity should apply but a reference was unnecessary

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.published_or_final_versio

Legislative Oaths and Judicial Intervention in Hong Kong

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.postprin

Public Welfare and The Judicial Over-Enforcement of Socio-Economic Rights in Hong Kong

This comment argues that the Court of Final Appeal (CFA) in Kong Yunming has erred insofar as it applied the proportionality analysis vis-à-vis any restriction placed on the Art 36 right to social welfare. Even if the CFA was right to apply the proportionality analysis, it is argued that there is a rational connection between the 7-year residence requirement and the Government’s aim of ensuring the sustainability of the welfare system by addressing the problems raised by the following issues: (a) immigration from the Mainland under the One-Way Permit scheme; (b) Hong Kong’s ageing population; and (c) the rise in Comprehensive Social Security Assistance Scheme expenditure. Finally, even if the impugned 7-year residence requirement was unconstitutional, the CFA should have issued a temporary suspension order, rather than restore the 1-year residence requirement.published_or_final_versio

Validation of a New Semi-Automated Technique to Evaluate Muscle Capillarization.

The method of capillary domains has often been used to study capillarization of skeletal and heart muscle. However, the conventional data processing method using a digitizing tablet is an arduous and time-consuming task. Here we compare a new semi-automated capillary domain data collection and analysis in muscle tissue with the standard capillary domain method. The capillary density (1481 ± 59 vs. 1447 ± 54 caps mm(-2); R(2):0.99; P < 0.01) and heterogeneity of capillary spacing (0.085 ± 0.002 vs. 0.085 ± 0.002; R(2):0.95; P < 0.01) were similar in both methods. The fiber cross-sectional area correlated well between the methods (R(2):0.84; P < 0.01) and did not differ significantly (~8 % larger in the old than new method at P = 0.08). The latter was likely due to differences in outlining the contours between the two methods. In conclusion, the semi-automated method gives quantitatively and qualitatively similar data as the conventional method and saves a considerable amount of time