Realising Universal Suffrage in Hong Kong after the Standing Committee's Decision

Of all the preconditions to realising universal suffrage of Hong Kong’s Chief Executive in 2017, the most challenging is getting two-thirds of the 70 legislators to agree on a reform proposal. On 31 August 2014, the Standing Committee of the National People’s Congress made this challenge even more difficult by imposing restrictive and controlling conditions on the nomination process. The decision sparked unprecedented protests and acts of civil disobedience on the streets of Hong Kong in September and October 2014. Legislators have until the middle of 2015 to determine whether they can agree with the central and local governments on a single reform proposal. This paper assesses the arguments for and against reform, within the constraints of the Standing Committee’s decision. It argues in favour of reform so long as there are sufficient reassurances and measures to regain the trust of the Hong Kong people. The complete reform proposal will need to have sufficient safeguards and counter-balances to ensure that the central government does not control both the nomination and election results. All stakeholders need to take positive steps to make for more favourable reform conditions.preprin

Immunity in Hong Kong for kleptocrats and human rights violators

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Defending white collar crime in Hong Kong: a case study of the Lee Ming Tee Case

The Lee Ming Tee case, stretching from 1998 to 2004, is the longest and most expensive criminal prosecution in the Hong Kong Special Administrative Region thus far. This article examines the strategies employed by the defence to try to delay and abort the prosecution. The strategies are many of the same ones documented by Kenneth Mann in his study of American white collar crime attorneys. The effectiveness or potency of strategies, such as information control, information access and deflecting attention, depends on the underlying rule of law values and institutions of the society where the prosecution occurs. While some may criticize the outcomes and the many detours taken in this case, they nevertheless serve to underline the robustness of Hong Kong's independent judiciary, due process safeguards, and system of jury trials post-1997.published_or_final_versio

Judicial Review of Elections in Hong Kong: Resolving a Contradiction

Analysis of judicial review of elections in Hong Kong reveals a contradiction: strong review of restrictions on voting and candidacy, but weak review of serious institutional inequalities. Weak review occurs when the issue is within the scope of Hong Kong’s political reform trajectory and of interest to the Chinese government. Beijing’s assertive role in the 2013-15 reform exercise may influence courts to adopt an even more deferential posture. However, this should be resisted, as it would fail to accord sufficient importance to entrenched political rights and involve unwarranted deference by courts, especially if the reform trajectory has hit a wall.postprin

A Hong Kong perspective and book review of Declan McGrath, Evidence, Dublin: Thomson Round Hall, 2005, 728 pp, hb euro 350

McGrath on Evidence is a new and impressive treatise on the law of evidence in Ireland. The use of a wide range of jurisprudence from across the common law world makes the book much more than a text on Irish law. There is a remarkable degree of similarity between the law in Ireland and Hong Kong. Practitioners in Hong Kong and beyond are sure to find useful examples and ideas within this book.published_or_final_versio

Role of the Criminal Law in Maintaining Hong Kong as an International Financial Centre

While criminal law is an essential part of the legal environment used to maintain Hong Kong’s status as an international financial centre (IFC), its role is limited. Criminal law and processes are reserved for serious cases that involve the protection of property rights, economic interests, or the integrity of the financial system. Deterrent and remedial civil processes are increasingly being used as a more effective way to enforce law designed to maintain Hong Kong’s IFC status.postprin

A Decade of Self-Incrimination in the Hong Kong Special Administrative Region

The topic of self-incrimination has reached the Court of Final Appeal in only a handful of cases in its first decade. The Court decided most of these cases under the common law and in only one case was consideration given to the protections against self-incrimination under the Hong Kong Bill of Rights. While the Court has fortified the common law position in discrete areas, it has yet to recognise a constitutional right to silence which opens the door to greater coherence in the law and protection for individuals. This article analyses the case law on self-incrimination between 1997 and 2007 to identify general legal propositions, trends in the development of the jurisprudence, and possible areas of future development.published_or_final_versio

Constitutional Rights in Hong Kong's Court of Final Appeal

This article analyzes the first ten years of constitutional rights cases in Hong Kong’s Court of Final Appeal from 1999 to 2009. In its caseload of 45 rights cases, the Court heard a diverse range of rights issues and upheld the majority of the rights arguments. It decided cases efficiently, made strategic use of its procedure to allow an overseas common law judge to sit on cases, and generally spoken in one voice. The Court’s jurisprudence and track record provides a foundation for the continued protection of human rights in Hong Kong.postprin

Restricting Basic Law Rights in Hong Kong

In Bahadur v Director of Immigration, the Court of Final Appeal considered the question of whether rights found in Hong Kong's constitution, the Basic Law, are subject to restrictions. Bahadur concerned the right of residents to travel and enter Hong Kong, which is found in the Basic Law but not in the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. To its credit, the Court eschewed an approach making such rights subordinate to ordinary legislation. Questions concerning the approach to restrictions on parallel Basic Law rights, ie Basic Law rights that have a parallel right in the ICCPR as applied to Hong Kong, have yet to be determined. It is argued here that these rights and their possible restrictions should have an autonomous interpretation and not have to conform to the minimum standards in the ICCPR.published_or_final_versio

Sentencing in Hong Kong

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