2015 Fall

Hong Kong Student Law Gazette Fall 2015 ¡ Issue 7

Feature Interview with Mr Justice Tang PJ

Articles Can Law Enforcement Agencies Decrypt Messages in the Public?

A New Age for Chinese Bilateral Investment Treaties Consumer Protection: Moving with the Times

TABLE OF CONTENTS

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HONG KONG

Re-assessing the Requisite Mens Rea in Money Laundering Cases 4 Hong Kong to Set Chilling Precedent Against Credit Rating Agencies?

6 Prioritising Cybersecurity, Safe-guarding Businesses

8 Busking in Bustling Hong Kong 10 Nuptial Agreements: A Post-Radmacher View 11 Promissory & Proprietary Estoppel – One ‘Conflated’ Concept?

12 A New Direction on Insurance Law: Introduction of the Fair Duty of Presentation 14 Ageing Legislations for Elderly Care Home 16 The Threat of the Competition Ordinance on Hong Kong’s Shipping Industry 17 Can Law Enforcement Agencies Decrypt Messages in the Public?

18 Domestic and Cohabitation Relationships Violence Ordinance – Effective Measure or ‘Paper Tiger’? 20 No Warrant? No Problem: ISP’s Role in Voluntary Disclosure of Users’ Metadata to Authorities 22

CHINA

After Qualcomm: Are Foreign Firms Unfairly Targeted by China’s Antitrust Enforcement?

The Hollow Hope: Can the New Pollution Law Bring Real Changes in China?

A New Age for Chinese Bilateral Investment Treaties: Expropriation Re-examined

FEATURE

Interview with Mr Justice Tang PJ 28

24 25 26

INTERNATIONAL

Repealing the UK Human Rights Act 1998 – Conservative Proposals for a British Bill of Rights 36 Cambodian Substantive Rule of Law Undermined by Anti-NGO Legislation 37 Tag-team Regulation: Financial Institutions and Regulatory Agencies 38 Consumer Protection: Moving with the Times 40 Remotely Piloted Drones: Self-Defence or Extrajudicial Killing?

42 Orphan Drug Act: Patent Abuse on Both Sides of the Border 44 It’s not whether but how Same Sex Marriage is Legalised 46 Rethinking America’s Cuban Immigration Policy 48 Freedom of Panorama in the European Union 50

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LETTER FROM THE EDITOR

W

hen the Gazette began in fall 2012, the then Editorial Board took on an academic direction and wanted to produce a publication which recognised ‘legal scholarship with integrity’. Testament to our success in that direction, our publication has grown from year to year. We remain the largest circulating law student publication in Hong Kong and each issue covers an array of legal topics.

The writing and editorial process offer students a chance to pursue further legal research in an area of interest whilst refining their abilities to write, research, and respond to suggestions. The dialogue between writers and their editors become an important process in studying the selected area of law as well as examining the issues through different perspectives. Whether or not our readers agree with our writers, these articles should be fertile ground for further discussions and thought. It is my hope that our readers will find this publication interesting, informative, and engaging.

For this issue we had the privilege of speaking to Mr Justice Robert Tang PJ in the old Supreme Court building which now stands as the newly refurbished Court of Final Appeal. Apart from being a symbol for the continuity of the common law and rule of law tradition in Hong Kong, the new building also stands as testament to the changes Hong Kong has witnessed over the years. As 2015 comes to an end, we are conscious of the demand and speed of change. The law will adapt, as it always does, to these changes and challenges. Yet we are also mindful that as students of the common law tradition, we must not lose sight of the best of the old. Mr Justice Tang PJ shared with us his insights into the law from his years as a barrister and now judge. Our readers should find his insights and comments thought provoking and deserving of rereading.

Our publication would not be possible without the continuing support from Clifford Chance LLP. This year we are also fortunate in securing additional sponsorship and support for the Gazette. A full list of names can be found in our Additional Thanks page at the end of this publication. We are truly grateful for their support.

A part of the unchanging tradition of the Gazette has been its ability to attract writers and editors who are genuinely interested in legal developments. I am also grateful for the editors and layout editors who have worked tirelessly on this publication. Like our writers, I am equally grateful for their insights and hard work. This publication is a testament to their efforts.

As the winter exams approach, I wish you all the very best and a festive winter break ahead.

Keith Cheung Editor-in-Chief

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THE BOARD

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Editorial Board

Keith Cheung

Natalie Lau

Quentin Wong

Edki Sek

Bryan Lam

Noel Chan

Layout Team

Charlotte Lin

Winky Lee

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HONG KONG

Re-assessing the Requisite Mens Rea in Money Laundering Cases Candice Lau

A

re you aware that by helping a longtime friend in a bank transfer transaction may render you liable for money laundering?

Would you be suspicious of the nature of such transaction at all?

Under the Organized and Serious Crimes Ordinance (Cap. 455) (OSCO) and the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) (DTRPO), there is a risk that even law-abiding citizens may be convicted of money laundering. This article aims to provide a critical evaluation on the approach adopted by the court in HKSAR v Pang Hung Fai [2014] HKEC 1831 in avoiding the miscarriage of justice resulted from the lower threshold test for the requisite mens rea in HKSAR v Shing Siu Ming [1998] HKCA 199.

sonable grounds to believe’ are something less than knowledge.

In Shing Siu Ming, Mayo JA pointed out, obiter, that proving knowledge is straightforward but proving ‘having reasonable grounds to believe’ could lead to difficulties. How can the court ascertain whether there is any ‘reasonable grounds’ for the accused to believe the monies are proceeds of crime?

faced by the accused in each case.

A two-stage test for proving “having reasonable grounds to believe” was applied in Shing Siu Ming and the same line of authority: 1. Objective element: proving there are grounds that a common sense, right-thinking member of the community would consider sufficient to lead a person to hold

The mens rea required under OSCO and DTRPO To convict a person of the offence of money laundering, the prosecution has to establish that he has the mens rea in dealing with the proceeds of any indictable offence or drug trafficking. Under s. 25 (1) of both OSCO and DTRPO, the mens rea is prescribed as ‘knowing or having reasonable grounds to believe’. As expounded by Spigelman NPJ in HKSAR v Pang Hung Fai [2014] HKEC 1831, recklessness would be equated to ‘knowing’ and, in contrast, ‘having reaHKSLG · FALL 2015 · ISSUE 7

Before HKSAR v Pang Hung Fai (CFA) The cases before the decision in HKSAR v Pang Hung Fai illustrated that it was very easy to convict a person under the OSCO and the DTRPO. The previous approach adopted by the court seems to tilt towards the objective point of view from a reasonable man and fail to consider the distinctive situation

a particular belief 2. Subjective element: proving those grounds were known to the defendant In various cases, the court was satisfied that the objective element had been proven. For example, in HKSAR v Tam Lap Shek & Ors [2013] HKCA 369, the second defendant is a long-term cohabitee of the first

HONG KONG defendant. She claimed that she was unaware of the provenance of the first defendant’s monies and was not told why he did not use his own accounts. Similarly, in HKSAR v Wan Yet Kwai [2009] HKCA 171, the trial judge concluded that the loan from the appellant’s friend was tainted by crime. The counsel for the appellant reasoned that a right-thinking member of the community would have reasonable grounds to believe the money had come from a legitimate source as an alternative explanation. However, the Court of Appeal in this case upheld the ratio in HKSAR v Yam Ho Keung CACC 555/2001 that where an event can reasonably be explained on the basis of more than one ground, the person contemplating the issue holds reasonable grounds for belief in them all.

Nevertheless, to a lay person’s understanding, it can be ‘reasonable’ for a long-term co-habitee not to question the other about the source of the monies obtained.

Likewise, if a friend agrees to lend you a huge sum of money for your urgent need, would you be suspicious of its provenance? Seemingly it had been too easy to satisfy the objective element especially when a substantial sum of money was involved. There could be a tendency for the judge or jury to come to a conclusion that a ‘reasonable’ person should be skeptical about the alleged transactions.

Moreover, the Court of Final Appeal in Oei Hengky Wiryo v HKSAR (No 2) [2007] 1 HKLRD 568 ruled that the prosecution does not even have to prove that the relevant funds dealt with by the accused in fact represents the proceeds of an indictable offence. Therefore, whenever the accused deals with a large sum of money, it is most certainly he would be convicted under the two-stage test in Shing Siu Ming.

The landmark judgment HKSAR v Pang Hung Fai

of

The judgment of Pang Hung Fai is plausible since it addresses the problematic situations discussed above by raising the difficulty in proving the second limb of the mens rea. The Court of Final Appeal criticised that there are ‘unnecessary complications’ in the previous two-stage test. It decided that the personal beliefs, perceptions and prejudices of an accused could be taken into account as they may form ‘grounds’ which affect the accused’s belief. Also, the Court ruled that the test of ‘would believe’ was applicable to s. 25(1) OSCO as opposed to the lower standard ‘could believe’ test wrongly applied by the Court of Appeal.

The judgment shows that the court is now more cautious in convicting an accused by narrowing the scope

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of ‘grounds to believe’ with greater reasonableness and certainty.

Applying the higher threshold test in this case, the Court took into consideration the close personal and business relationship between the accused and his friend extending over decades and the trust between them. It is now fairer to the accused because the court appears to put itself into the shoes of the accused instead of analysing the case as a third party. Also, the wide approach of ‘could believe’ is now narrowed as the court no longer takes all possibilities as the accused’s belief.

Successful appeal in HKSAR v Zhang Xiaoguang After Pang Hung Fai, the accused in HKSAR v Zhang Xiaoguang [2015] HKEC 1700 successfully appealed and his conviction was quashed. The accused and Mr. Yang, who was involved in tax evasion transactions, are good friends.

He came to Hong Kong to open a bank account for Mr. Yang’s use and believed the purpose was to help Mr. Yang to circumvent the strict foreign exchange control of Nigeria. This is indeed a common example of trusted relationships among family members, friends, and business partners. The previous lower standard of proving ‘having reasonable grounds to believe’ certainly failed in considering the above relationships and imposed an unreasonably serious penalty as if the accused was proven to have actual knowledge. Adopting the new approach, the court can adequately deal with the specific circumstances faced by each accused so as to avoid any evaluation from the perspective of an unrelated third party.

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HONG KONG

Hong Kong to Set Chilling Precedent Against Credit Rating Agencies?

Andrew Lau

M

oody’s Investors Service (Moody’s) began an appeal in September 2015 against a decision by the Securities and Futures Commission (the SFC) to fine the credit rating agency for HKD 23 million over a 2011 report identifying warning signs – so-called ‘red flags’ – for Mainland Chinese firms listed in Hong Kong. The case, which went before the Securities and Futures Appeal Tribunal (the SFAT), is the first disciplinary action taken against a credit rating agency since the SFC began regulating these agencies and their rating analysts in June 2011.

The report titled Red Flags for Emerging-Market Companies: A Focus on China (the Report) tested 61 Chinese companies against 20 possible red flags covering areas such as corporate governance, opacity of business models, speed of growth, and the quality of earnings and fiHKSLG · FALL 2015 · ISSUE 7

nancial statements. Share prices at several of the firms, in particular those with large numbers of red flags, dropped substantially following the publication of the Report.

In the SFAT hearing, the SFC argued that the Report contains errors amounting to a failure of due diligence in preparing credit ratings, and that Moody’s has breached the Code of Conduct for Persons Providing Credit Rating Services (the Code) issued under s. 169 of the Securities and Futures Ordinance (Cap. 571) (SFO). Although Moody’s acknowledged some of the errors made in the Report, it argued that the regulator had overstepped its authority in claiming the Report was akin to a credit rating. Moody’s also contended that the SFC’s action has infringed on its constitutionally protected right to freedom of expression.

‘Red flags’ report was within the regulatory ambit The work of a credit rating agency goes beyond simply issuing credit ratings. There are necessary activities that are part and parcel of the agency’s business, such as communicating to the market and public investors about its methodologies and practices.

Moody’s business of providing credit rating services is a Type 10 regulated activity under Sch. 5 SFO. Under this provision, ‘providing credit rating services’ is defined to mean ‘preparing credit ratings’ for public dissemination and distribution. Meanwhile, the term ‘credit ratings’ is defined as ‘opinions, expressed using a defined ranking system, primarily regarding the creditworthiness of (a) a person other than an individual; (b) debt securities…’.

HONG KONG Moody’s argued that its obligation to comply with the Code is limited only to the extent of carrying on the regulated activities for which it is licensed, namely credit rating services, but not any other activities such as publishing commentaries on market related issues, which is what they claimed to have done in the Report.

However this is inconsistent with what was detailed in the Report.

Moody’s explained that the Report was prompted by market concerns about the efficacy of its existing ratings, and was carried out to ‘provide transparency’ on its approach and to ‘identify potential areas of concern for follow up and closer scrutiny’. Moreover, in a press release, the author of the Report maintained that the ‘red flags’ framework is in fact ‘supplemental to Moody’s methodological approach to rating non-financial corporates’. A reader of both documents would reasonably understand the Report as an explanation of its rating methodology applied towards firms whom Moody’s had rated. It is difficult to imagine why this would not come within the meaning of ‘preparing credit ratings’ or why such an activity would not be regulated.

It is also worth pointing out that paragraphs 15 and 16 of the Code impose a positive duty upon credit rating agencies to monitor and update its ratings in light of new information. Moody’s decision to embark on a review of the companies whom they had rated was in fact part of its regulatory responsibility, given the market’s concerns over its approach to ratings.

Freedom of speech defence not justified Moody’s noted that it regularly publishes supplemental reports

and should be on a ‘level playing field in terms of freedom of speech as Reuters and Bloomberg’. In particular, Moody’s questioned the SFC’s jurisdiction to issue the Code under s. 169 SFO and to accuse Moody’s of misconduct for breaching it, as this would impact their constitutionally protected right to freedom of speech under the Basic Law and the Bill of Rights Ordinance (Cap. 383) (BORO).

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Paragraph 9 of the Code places a restriction on what Moody’s may say, namely that it must not make misrepresentations or misleading statements as to the general creditworthiness of its rating targets.

This restriction is clearly prescribed by law and serves the legitimate aim in protecting the reputation of others, and maintaining economic order within the market. The restriction is also proportionate: Moody’s applied for a license to carry on a regulated business and, in obtaining its license, it has voluntarily agreed to be bound by the Code. Therefore, there is no disproportionality in subjecting it to sanctions for breach of the Code.

No risk of a chilling effect

This argument is unsatisfactory, as the value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. Moody’s differs from other media outlets in one important aspect: it is a licensed body under the SFO. This entails certain responsibilities that cannot be disregarded. It is trite law under Article 16(3) BORO that the freedom of speech is not absolute: a restriction is only allowed if it is provided clearly by law, necessary for the rights of others and proportionate.

At the time of writing, the SFAT has yet to publish its determination. The decision would provide much needed clarifications on the definition of ‘credit rating services’ and the ambit of the SFC’s regulatory powers with respect to licensed credit rating agencies.

Meanwhile, some commentators suggested that if the SFAT rules in favour of the SFC, it could have wide implications for critical market commentary. While it is true that free markets depend on free speech and the open exchange of opinions and analysis, it is incorrect to say that a credit rating agency may express any opinion whether its underlying analysis was in fact correct or plainly wrong. The crux of the matter is not that the SFC seeks to restrict a credit rating agency’s freedom of speech; rather, it is about the duty of a licensed agency to take proper responsibility for what it says.

Had the Report not been erroneous, the SFC would have no basis to take disciplinary action against Moody’s, irrespective of the market impact such a report may have had.

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HONG KONG

Prioritising Cybersecurity, Safeguarding Businesses Brigitte Kiu

W

hile rapid technological developments have greatly increased efficiency for organisations of all sizes, it has also presented new challenges as volumes of sensitive information are digitised and stored in cyberspace, leaving them vulnerable to hackers. Cybersecurity incidents are increasing in frequency, sophistication, and impact.

The UK Government announced in September 2015 that 90% of major businesses experienced security breaches in the past year. In Asia, a report from the Economist Intelligence Unit puts this figure at 53% in 2014. For Hong Kong, a security firm ranked it as the second most targeted jurisdiction in terms of attacks in the Asia Pacific region.

Cybersecurity is defined by the US National Initiative for Cybersecurity Education as the protection of information and communications systems against ‘damage, unauthorized use or modification, or exploitation.’ The UN International Telecommunications Union expands this definition to include not only the protection of users’ assets, but also the attainment and maintenance of security across all devices, infrastructure, and systems.

Nowadays, as business operations increasingly rely on cyberspace to conduct commerce, it is imperative for businesses to prioritise cybersecurity and implement cyber defence strategies to pre-empt and limit the damage of cyber attacks.

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Types of cyber attacks Cyber attacks can be categorised into two broad areas: breaches in data security and sabotage. Businesses are most vulnerable to information leaked through poor data security awareness or intentionally by insiders. Sabotage attacks include disabling systems through sending phishing electronic messages or creating fraudulent websites to harvest data. In Hong Kong, attacks reported in 2014 mostly involved the intrusion of networking and information systems, distributed denial of service attacks, and encryption of the victim’s computer files.

The cost of cyber-attacks The impact of cybersecurity incidents on businesses is significant.

The UK Government reported in June 2015 that the estimated average cost of a severe incident on big businesses starts at GBP 1.46 million. It leads to brand or reputational damage, often affecting stock market valuations. Businesses also risk losing competitive advantage through compromised negotiations or business ventures. There may also be legal ramifications and increasingly, repercussions for failing to comply with regulatory and law enforcement agency requirements.

Hong Kong Government’s initiatives to bolster cybersecurity awareness for businesses In light of the need to raise public awareness on the dangers of cyberattacks, the Office of the Government Chief Information Officer

HONG KONG (OGCIO), which is primarily responsible for the development of the Government’s information and communications technology policies, established the Cyber Security Information Portal (Portal) early this year. The Portal aims to ‘raise public awareness of information security’ through providing expert advice, guidelines and hosting seminars. Specifically targeted at enterprises, the Portal released a publication on September 2015 recommending that businesses embed security across all operations and communications system; build a ‘risk-aware’ culture; monitor contractors and suppliers; implement intelligence to detect and respond to attacks quickly; as well as constantly upgrade security systems.

The Cyber Security and Technology Crime Bureau, under the Hong Kong Police Force, was also established in 2012 to investigate, undertake computer forensic examinations and promote public awareness of technology crime.

Such steps taken by the Government indicate its commitment to safeguarding the cyber environment. Although a step in the right direction, greater support and collaboration with the government is needed. In particular, the financial sector has responded to the inadequacy of targeted policies by issuing its own recommendations.

How the financial sector is prioritising cyber security risk management In terms of malicious attacks, financial institutions are most at risk. The Hong Kong Monetary Authority (HKMA) recognised the importance of strengthening cyber security controls and has requested authorised institutions (AIs) to comply with its ‘Cyber Security Risk Management’ circular, issued

on 15 September 2015. HKMA expects the Board and senior management to proactively oversee at minimum: risk ownership and management accountability, periodic evaluations and monitoring of cyber security controls, contingency planning, collaboration with other industries as well as regular independent assessments and tests. The Board should evidence ‘concrete’ progress made in Board meetings. The HKMA can also demand information to assess such progress.

Similarly, the Securities and Futures Commission (SFC) also recommended a review of policies and procedures to identify, manage, and assess the risk of cybersecurity threats in a circular issued last year titled ‘Mitigating cybersecurity risks’. The SFC explicitly stated that senior management are responsible for supervising data management.

The involvement of senior management reflects the risks at stake and the need for a top-down approach in managing cyber attacks.

Prosecuting cyber attacks Currently, victims of cyber attacks have a right of action under ss. 24 and 27 of the Telecommunications Ordinance (Cap. 106), ss. 59, 60, 85 and 161 of the Crimes Ordinance (Cap. 200) and ss. 11 and 19 of the Theft Ordinance (Cap. 210). Amendments were made to expand the definition of criminal offences. It now includes unauthorised access to any computer; damage or misuse of property including computer programmes or data, obtaining access to a computer with dishonest intent as well as unlawfully altering, adding, or erasing the functions or records of a computer.

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Hong Kong has chosen not to adopt the mandatory legal requirement for data users to notify authorities about data breaches, unlike most US states and countries including Germany and Indonesia.

This lack of disclosure makes it difficult for businesses to cooperate in managing cybersecurity and to ascertain the extent of information stolen.

Securing the defences: strategies to manage cybersecurity Given the high-stakes involved in cybersecurity, it is imperative that senior leaders of businesses adopt a top-down, proactive approach.

Businesses can consider greater collaboration with the Government or forming a united front with other businesses to share intelligence on risks and strategies. It is important to design controls specific to the business. Other recommendations include regularly conducting reviews, assessing risks and prioritising information assets based on the level of risk as well as developing technologies to aggregate information and actively uncover attacks.

A crisis management plan should also be adopted to effectively respond to a breach. Such measures would foster a culture of awareness of the value of information assets across all levels of the business.

Conclusion Improving cybersecurity can be costly, but the consequences of not doing so can result in greater damage. Protecting cyberspace is difficult as the types of attacks mutate rapidly with the pace of technology. The world will only move with ever increasing speed towards ‘the Internet of Things,’ it is therefore up to businesses to prioritise securing their systems, or risk abetting omnipresent attackers.

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HONG KONG

Busking in Bustling Hong Kong George Lau

O

n a Saturday night at the Tsim Sha Tsui Star Ferry Pier, two young musicians stood out from the passersby. Plugging the guitar strings and crooning the most popular songs, they indulge themselves in their lively performance on a crowded street.

It is not surprising to find buskers in Hong Kong, be it on a seaside promenade or at a busy MTR station. While some may find it obstructive or annoying, busking in itself is legal in this densely populated city.

The Basic Law right In late April 2010, Mr Andrew So Chun-chau was charged with obstruction of public places under s.

4A of the Summary Offences Ordinance (Cap.228) (SSO) while he was performing at Great George Street. Deputy Magistrate Mr Lau Wai-chung stated that Art. 34 of the Basic Law protects the freedom to engage in cultural activities. He ruled that although the Defendant’s act was obstructing pedestrians, there was still sufficient room for bypassing the crowd and the act did not present a danger to others.

The legality of busking is challenged again in a more recent case

香港特別行政區

訴

黃宗成

[2015] CHKEC 1107. The Appellant had earlier been convicted of playing musical instrument in a public street without a permit issued by the Commissioner of Police and without any lawful authority or excuse, contrary to s. 4(15) SSO. His conviction was overHKSLG · FALL 2015 · ISSUE 7

turned on his appeal to the Court of First Instance.

Judge Li pointed out that there are limitations to the Basic Law right.

The requirement of a permit enables the police to manage risk and ensure public safety but the Commissioner’s authority is not unfettered. He ruled that the limitation imposed in s. 4(15) SSO is reasonable and commensurate.

Lawful authority or excuse Judge Li then considered the element of ‘without lawful authority or excuse’. Citing Yeung May Wan & Others v HKSAR [2005] 8 HKCFAR 137, he held that the prosecution has the burden to prove that the Appellant did not have lawful authority or excuse, having due regard to the degree of obstruction and the Basic Law right. Since there was no evidence showing that the Appellant was causing obstruction or nuisance, he ruled that the Magistrate inadequately considered whether the prosecution discharged the burden. As such the conviction was unsafe or unsatisfactory.

Striking a balance The two judgments highlight that buskers have the right to perform

in the public under the Basic Law, unless they cause unreasonable disruption. The fine distinction between what is reasonable and what is not, however, may be hard to draw. Rather than having the situation unregulated, other major cities including London and Singapore have more developed licencing schemes. They often impose time, duration, location, and equipment restrictions and may require auditions to assess the applicant’s level of skill. The advantage is that quality can be maintained and licenced buskers will have an equal opportunity to perform at popular locations.

Nevertheless, it can be criticised that these policies may curb the development of street performance.

One of the biggest concerns in all licencing schemes is the representativeness and legitimacy of the regulatory body. Another concern is that licencing will undermine spontaneity, which arguably represents the cornerstone of street performance.

As busking in Hong Kong grows, perhaps it is now time to explore a viable way to strike a balance between the maintenance of public order and the promotion of the culture of busking.

HONG KONG

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Nuptial Agreements: A Post-Radmacher View Darren Tai

Background

N

uptials are agreements between couples entered before (pre-nup) or during (postnup) marriage that governs the rights and obligations of the parties should the marriage dissolves.

Nuptials have been given legally binding effect in Hong Kong after SPH v SA (2014) 17 HKCFAR 364 which applied Radmacher v Garantino [2011] 1 A.C. 534.

Nuptials are binding provided they are ‘entered freely’ with a ‘full appreciation of its implications’ and are ‘fair’ in the sense that they address the ‘needs’ of the financially weaker spouse. Despite this, subsequent cases show that application of the decision remains uncertain, especially when assessing ‘needs’ to determine the weight to accord to an agreement.

Approach to assessing needs In Luckwell v Limata [2014] EWHC 502 (Fam), the wife had net worth of GBP 6.7 million while the husband had net debts of GBP 226,000 at the time of divorce. Despite reinforced attempts to ring-fence her assets through a pre-nup and other supplemental agreements, the court was unable to give weight to the agreement as it would be unfair to do so. The husband had no home, income and had considerable debts. Enforcing the agreement, which only made minimal financial provisions, would have placed the husband in a ‘predicament of real need’ while the wife enjoyed a ‘sufficiency or more’, a gravely unjust outcome

that cannot prevail in the eyes of the Court. In coming to that decision, the Court was considered to have adopted a ‘standard’ approach of assessing ‘needs’ in Radmacher, emphasising the importance of not putting a spouse in a situation of destitution.

thus it was fair to hold the parties to the agreement, resulting in the husband being compensated for a relatively meager amount. It was further suggested that despite the ‘over-arching criterion remains the search for fairness’, if the ‘conduct in question is obvious and gross, it

The Court distinguished itself from that approach in assessing ‘needs’ in the more recent WW v HW [2015] EWHC 1844 (Fam). In that case, the wife again had considerably more wealth and income than the husband. On a standard ‘needs’ basis, the husband would have been entitled to a significant sum as the relevant pre-nup was not enforceable given the lack of financial provision for his needs. However, the court was faced with the question whether to take into account the husband’s conduct prior to and during the marriage. It was discovered that the husband had deliberately overstated his wealth in the pre-nup (so as to make himself look more self-sufficient) to ensure that the marriage would proceed. He had also sought to pass certain tax liabilities onto the wife. The judge held that the husband’s conduct justified a narrower interpretation of his ‘needs’ and

would be inequitable for the Court to disregard it’.

The decision in WW is just one of many cases that demonstrates the uncertainty of ascertaining what constitutes fairness within the purview of the Court after Radmacher.

Wealthier spouses will undoubtedly applaud the decision in that it acts as an additional hurdle before the other party can get their hands on their assets. To others, the restrictive approach, not only in enforcing an otherwise invalid agreement but also punishing spouses for self-interested acts, would have been unjust. The UK Law Commission’s report in 2014 recommended the introduction of ‘Qualifying Nuptial Agreements’ that would oust the Court’s jurisdiction in ordering financial relief, perhaps it is now time to implement those recommendations to prevent unpredictable judicial arbitrariness.

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HONG KONG

Promissory & Proprietary Estoppel – One ‘Conflated’ Concept?

Ruby Ng

R

ecently, the Court of Appeal (CA) in Hong Kong Hua Qiao Co Ltd v Cham Ka Tai [2015] HKEC 394 rejected the appellant’s argument that ‘the [lower court] judge had conflated the concepts of proprietary estoppel and promissory estoppel’. The conflation argument is founded upon two observations. First, in this case where only promissory estoppel was pleaded, the judge changed and improved the counterclaim plaintiff’s case by applying promissory estoppel. Second, proprietary interest, as opposed to personal equity, was awarded to the counterclaim plaintiff on the basis of promissory estoppel. This article argues that the formulation of promissory estoppel has been widened through CA’s affirmation of the CFI’s decision. As a result, the Hong Kong position has gathered more momentum towards the suggestion that the two estoppels have been practically merged, when applied in disputes on proprietary interests.

What is being widened?

Luo Xing Juan v Estate of Hui Shui See [2008] HKEC 996 is the latest CFA authority on promissory estoppel that started the ‘conflation’.

It ruled that a defeat in proprietary estoppel ‘does not prevent recourse to promissory estoppel’, since many of their constituent elements are now shared. As such, promissory estoppel was unprecedentedly HKSLG · FALL 2015 · ISSUE 7

a property was eventually granted to the counterclaim plaintiff on the basis of promissory estoppel.

‘Tacit priority’ overstepped In Hong Kong Hua Qiao, the ‘tacit priority’ of proprietary over promissory estoppel was eschewed as evidenced from the judges’ reasoning both at appeal and at first instance.

In the appeal case, one central argument against CFI’s ruling was the injustice caused by the judge’s application of promissory estoppel in benefiting the counterclaim plaintiff who did not plead on that.

This echoes with an actual observation on the CFI judgment, that the judge did not explain but merely applied promissory estoppel formulated in Luo to the proprietary estoppel claim. used as a cause of action in a counterclaim , instead of a defence. To set apart the two doctrines, limits are prescribed to the application and effect of promissory estoppel in the proprietary context. First, CFA maintained that proprietary estoppel had a ‘tacit priority’ over promissory estoppel. Second, the nature of promissory estoppel is mere equity, giving rise to ‘equitable rights of a personal character…, not… any beneficial interest in property’. Notwithstanding, in Hong Kong Hua Qiao, CA’s affirmation of CFI’s reasoning clearly surmounted such limitations. A remedy of proprietary interest in

At CA, Kwan JA defended the CFI’s ruling only through a retrospective explanation on why proprietary estoppel did not apply in Hong Kong Hua Qiao. She also relied on the fact that ‘estoppel by representation’ was mentioned in the counterclaim plaintiff’s pleading to suggest that both promissory and proprietary estoppel were pleaded under the umbrella term.

In effect, Kwan JA’s reasoning has not only evidenced a closer proximity between the two doctrines, but has also arguably overstepped the ‘tacit priority’ under the formulation in Luo.

HONG KONG Proprietary remedies arising out of Promissory Estoppel Another issue at appeal was whether CFI erred in ‘countervailing benefits’ to the counterclaim plaintiff by granting an order to the effect of transferring to her the legal title of the property in question. In supporting CFI’s judgment, Kwan JA made reference to Luo, yet still ruled in favour of the transfer as an appropriate remedy on the basis of a clear-cut promise made to the counterclaim plaintiff whose expectations should be fulfiled.

It was argued in Hong Kong Hua Qiao that the fulfilment of expectations principle, as originated from the proprietary estoppel applied in Jennings v Rice [2002] EWCA Civ 159, should not be applied in the claim of promissory estoppel.

However, Kwan JA justified CFI’s application of the fulfilment of expectations principle by enunciating that the court’s discretion ‘is not constrained…by the lack of legal precision’. Therefore, to grant a proprietary interest to the coun-

terclaim plaintiff would be a better result than having ‘the relief which may be granted insignificant’.

Hence, CA’s exercise of discretionary power in granting proprietary remedies in Hong Kong Hua Qiao gave rise to two difficult issues.

First, it is unknown whether the fulfilment of expectations principle, originating from proprietary estoppel authorities, was appropriately applied on the basis of promissory estoppel. Second, in applying the fulfilment of expectations principle, CA’s ruling in effect exceeded the formulation of promissory estoppel as a mere equity in Luo. What’s next: can an interest of Promissory Estoppel claim priority?

A further conflation can be anticipated if there is a case where a successful claimant of an interest in land through promissory estoppel would deprive a subsequent proprietary interest holder. It is trite law that a personal interest in respect

13

of land cannot override a subsequent proprietary interest in land.

The limitation of mere equity, as formulated by Luo shall no longer stand if proprietary interest established in Hong Kong Hua Qiao is granted against a subsequent party.

This speculation, however, should only arise in a drastic case of injustice at the cost of doctrinal merge, given that the court of equity is always bestowed with discretionary power in awarding remedies.

Conclusion This article has critically analysed the effects of the recent CA judgment in Hong Kong Hua Qiao as the first post-Luo Xing Juan case applying promissory estoppel. It is obvious upon analysis between proprietary and promissory estoppels that only a fine line exists between the two doctrines in relation to disputes of a proprietary nature.

On the other hand, the discretionary nature of equity seems to be equally capable of driving itself both away from and towards the conflation.

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HONG KONG

A New Direction on Insurance Law: Introduction of the Fair Duty of Presentation

T

he UK’s Insurance Act 2015, which will come into effect in August 2016, is the result of a joint review by the Law Commission and the Scottish Law Commission.

This new legislation introduces substantial changes to the long-standing Marine Insurance Act 1906 (MIA), which governs disclosure in non-consumer insurance contracts, warranties, and remedies.

The century-year-old MIA has attracted academic and judicial criticisms for failing to be in line with modern commercial practices. The implementation of the new duty of fair presentation will replace the existing pre-contractual duty of disclosure, with the aim of balancing the harsh responsibilities of disclosure on the part of the insured and preventing the insurer’s unjust remHKSLG · FALL 2015 · ISSUE 7

edy of contract avoidance. With a record of following UK insurance law, Hong Kong legislators should take an initiative to adopt the new law.

The current position: pre-contractual duty of disclosure The doctrine of uberrimae fidei (‘utmost good faith’) is at the heart of all marine insurance contracts and was first developed in Carter v Boehm (1766) 3 Burr 1905 decided over two centuries ago. S. 17 MIA also reiterates this. Before a contract is concluded, both the insurer and the assured have the obligation of voluntary material disclosure. Although the duty applies to both parties, in practice, it is more relevant to the assured because the assured is

Hans Pui-Hing Choi

under a duty to disclose all material information relating to the insurer’s calculation of risk. S. 18(2) MIA provides that the duty to disclose only requires parties to disclose circumstances that are ‘material’ and would ‘influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk’. Failing to fulfil this requirement, the insurer can avoid the entire contract pursuant to s. 17 MIA. However, there has not been any consensus on defining ‘material’. The House of Lords attempted to clarify this in Pan Atlantic Insurance Co Ltd [1994] 3 All ER 581 but the new tests created further confusions and law remains unsettled.

HONG KONG The new position: the duty of fair presentation The new Act reallocates responsibility between both the insurer and the insured at the pre-contractual stage. S. 3(4)(b) MIA introduces a ‘second limb’ to the duty of disclosure: if the insured has said enough during the application process to put a prudent insurer on notice for the latter to ask further questions, the duty is fulfiled. A prudent insurer, therefore, needs to make inquiry during the underwriting process even if the insured has provided sufficient information. The position is different in case law where, if the insured puts an insurer on notice, the insured may have a defence of waiver when the insurer fails to inquire further . However, in having the insurer taken a more active role, the insured would have to disclose in a manner which would be ‘reasonably clear and accessible to a prudent insurer’. This prevents the insured from overwhelming insurers with large quantities of unsorted information in order to fulfill the disclosure requirement. Notably, s. 14 of the new Act abolishes the remedy of avoidance for breach of the duty of utmost good faith and introduces a proportional remedial system.

Besides, there are also changes brought about by the new Act as to the constructive knowledge of the insured and the insurer. In particular, s. 4(6) MIA imposes a heavier burden on the insured that he should know ‘what should reasonably have been revealed by a reasonable search of information available to [him]’. The new test of reasonableness contrasts s.18(1) MIA’s subjective characteristics of constructive knowledge ‘in the ordinary course of business’.

Regarding the requirements as to the insurer’s knowledge, s. 5(2)(b)

MIA states that the insurer ought to know if the relevant information is ‘held by’ and ‘readily available’ to the insurer. In view of the wordings, information on the internet will not qualify since it is not ‘held by’ the insurer, but information on insurer’s intranet system or subscribed databases may suffice. What information qualifies as being ‘readily available’ is a question of fact taking into account the previous cover and claim history.

How would Hong Kong cases be decided today if the UK Insurance law were adopted locally?

Hua Tyan Development Ltd v Zurich Insurance Co Ltd (Ho Feng 7) (2014) 17 HKCFAR 493 is a Court of Final Appeal decision concerning insurers’ constructive knowledge and warranty. In this case, the insurer rejected a claim relying on the basis that the assured was in breach of the Deadweight Warranty because Ho Feng 7 (the Vessel) was less than 10,000 tonnes.

Cheung JA in the the Court of Appeal considered whether the insurer could be presumed to have knowledge of the Vessel’s deadweight capacity. He held that the fact that information could be obtained did not mean that, as a matter of law, it had been obtained. In the Court of Final Appeal, the insured raised an additional argument that, since the Vessel’s deadweight capacity was a readily available information on the

15

Internet, this had to be taken into account in deciding whether the insurer was presumed to know. Ma CJ rejected this argument, stating that the meaning and effect of the Deadweight Warranty in the case was clear and no assistance could be derived from the factual circumstances surrounding the insurance contract.

Applying s. 5(2)(b) of the new Insurance Act, an insurer ought to know something if the relevant information is ‘held by the insurer and is readily available’. While the deadweight tonnage is readily available on the Internet , is the information ‘held by’ the insurer? The view from the International Underwriting Association is that information on the Internet will not qualify. However, in the circumstance where the information is available to a reasonable layman who can obtain the deadweight tonnage by inserting the name of the Vessel on a search engine, the relevant information should not only held by the insurer but also ‘held by’ anyone in the industry. The Court should adopt a generous approach to rule in favour of the insured by holding the insurer had constructive knowledge.

Conclusion The Marine Insurance Ordinance (MIO) was enacted in Hong Kong in 1961, ‘importing’ the MIA from the UK. It is advisable for Hong Kong to pass legislation akin to the UK’s Insurance Act because, most importantly, there will be a competitive pressure on local insurers from insurance buyers to adopt the more generous legal principles in the new Act in the UK. With the aid of actuarial science, insurers and reinsurers can calculate their risks accurately and hence the new law will have the least impact on their business model while allowing the insured a fairer disclosure requirement.

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HONG KONG

Ageing Legislations for Elderly Care Home Roger Suen

O

n 26 May 2015 some elderly were left naked or half-undressed on an open-air podium at Cambridge Nursing Home in Tai Po (the Incident) which immediately caused public uproar.

Despite the Social Welfare Department (SWD) rejecting Cambridge Nursing Home’s licence renewal application, many blame the current legislative framework, which remained unchanged for over 20 years.

Current situation in Hong Kong There are currently 31,420 residential cares service providers for the elderly in Hong Kong. All elderly care homes are regulated by the Residential Care Homes (Elderly Persons) Ordinance (Cap. 459) (EPO). Its subsidiary legislation, the Residential Care Homes (Elderly Persons) Regulation (Cap. 459A) (the Regulation) and the Code of Practice for Residential Care Homes (Elderly Persons) (the Code), further stipulates the standard of care for care homes.

SWD rejected Cambridge Nursing Home’s renewal application because of its non-compliance with the EPO and the Code. According to s. 8(3)(iii) and s. 10(1) EPO, the Director may refuse to issue or renew a licence if ‘such premise does not comply with any requirements…set out in any Code of Practice issued’.

The Incident, however, revealed that not only is the legislative framework outdated, there are also HKSLG · FALL 2015 · ISSUE 7

regulatory gaps in the legislation since insufficient space and substandard employees are major factors leading to the Incident. One of the issues is that Sch. 2 Regulation sets an unsuitably low requirement of minimum floor area per resident at 6.5m2. This is hardly a reasonable standard, given the average floor space per resident in a contracted elderly care home in Hong Kong is 20.8 m2. Another issue is that Sch. 1 Regulation provides that healthcare workers can replace nurses in elderly homes.

This is a defect because healthcare workers are less qualified than nurses. One needs to attend a 3-year course of 1496 hours to become a registered nurse, while only a 6-month course of 238 hours is required for healthcare workers.

tion and supervision of a registered nurse’.

To improve the situation, foreign legislations are exemplary references. The National Minimum Standards for Care Homes for Older People (NMS) was introduced under s. 23(1) of the Care Standard Act 2000 in the UK. Standard 23 NMS requires all elderly care homes to provide at least 12 m2 for a single room, and 16 m2 for a shared room. For staffing, in Washington State of the US, there are, similar to Hong Kong, two distinct categories of staffs in nursing homes: registered nurses and nursing assistants. Contrary to the Regulation in Hong Kong, instead of replacing registered nurses, nursing assistants can only ‘assist in the care of individuals as delegated by and under the direc-

An ageing Hong Kong

A clearer distinction of responsibilities between nurses and healthcare workers in Hong Kong is necessary as it would genuinely reflect the differences in their abilities, so as to safeguard elderly’s dignity as well as to prevent placing the elderly in another peril.

Apart from legislative improvements, the government should also look into other peripheral factors contributing to the unsatisfactory situation of elderly home today, including the lack of qualified nurses and insufficient community support, and take appropriate actions to address the situation.

It is expected that, by 2041, the elderly will account for 30% of Hong Kong total population. This raising number comes with the surging demand for care homes.

Given that the elderly have once been the pillars of Hong Kong, now it is our responsibilities to be the anchors in their old age.

HONG KONG

The Threat of the Competition Ordinance on Hong Kong’s Shipping Industry

O

n 17 July 2015, a commencement notice appointed 14 December 2015 as the date of the full implementation of the Competition Ordinance (Cap. 619) (the Ordinance). If the Ordinance is implemented in its current form, many forms of co-operation agreements that have formed the backbone to the operation of shipping companies may effectively be rendered illegal.

The First Conduct Rule The First Conduct Rule (the Rule) under the Ordinance prohibits agreements, decisions, and concerted practices among undertakings that have as their objects or effect that prevents, restricts or distorts competition in Hong Kong.

The Rule identifies four categories of anti-competitive conduct: price fixing, market sharing (including allocation of customers, sales, territories or markets), output restriction, and bid-rigging.

The prevailing business model of shipping companies relies largely upon participation in co-operative agreements. The agreements allow carriers to discuss rate fixing, vessel sharing, joint scheduling, and agreements over services (including frequency of sailings, cargo carrying capacity and ports of call).

By strictly applying the Rule, these co-operative agreements may be subject to infringement proceedings before the Competition Tri-

bunal. If found to be in breach, shipping companies could be fined up to 10% of their Hong Kong turnover for a maximum of three years in which the contravention occurs and ordered to modify or terminate their arrangements.

Granting of a block exemption The Ordinance provides that an undertaking may apply to Hong Kong Competition Commission (HKCC) to determine whether a particular agreement is exempted from the Rule by virtue of the issuance of a block exemption order.

Attempts have been made by the Hong Kong Liner Shipping Association (HKLSA) to lobby the government and persuade the HKCC to grant an exemption.

Despite this, on 21 July 2015 the HKCC disclosed in a statement that it will not offer any rulings on block exemptions before the commencement date of the Ordinance, providing little certainty for the legality of the co-operative agreements.

If a block exemption cannot be granted, another option HKCC could consider is to grant an interim block exemption order that would apply from 14 December 2015. This option was adopted by Malaysia where a temporary block exemption was introduced on the date the Malaysia Competition Act took effect and lasted until a final ruling on the industry’s application for a block exemption

17

Carmen Mak

was made. However, in the latest Revised Draft Guidelines released on 27 July 2015, there was neither any discussion nor confirmation of the possibility of such interim exemptions being issued.

Effects on the shipping industry Without any indication from HKCC as to what might occur on 14 December 2015, the HKLSA published comments inferring that shipping companies will be unlikely to accept the risk that their agreements might be challenged under the Ordinance and would reduce or even cease services in the Hong Kong trade routes.

In June 2015, the Hong Kong Container Terminal Operators’ Association also warned that the transshipment business could easily be shifted to Shenzhen.

Currently, 70% of Hong Kong’s throughput consists of transshipment. This type of cargo is highly portable and is easily transshipped to other ports including Shenzhen and other Asian countries such as Singapore or Kuala Lumpur where exemptions have been granted.

This may have devastating effects on Hong Kong’s position as the world’s fourth largest container port. Once business is moved from Hong Kong to other ports, it might not return.

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HONG KONG

Can Law Enforcement Agencies Decrypt Messages in the Public Place?

Iris Chong

I

n 2006, the HKSAR Government introduced a historic bill to regulate electronic surveillance, including wiretapping and bugging. This bill gave birth to the Interception of Communications and Surveillance Ordinance (Cap. 589) (ICSO).

The ICSO regulates the interception of communications and covert surveillance conducted by law enforcement agencies (LEAs). Approvals for electronic surveillance are categorised into two types.

Where electronic surveillance requires LEAs to enter into a person’s home or office clandestinely to install intercepting devices, such surveillance must be approved by one member of a specially-appointed three-judge panel. Other forms of electronic surveillance can be approved administratively by a senior officer in the department engaged in the surveillance.

In addition, any approval must satisfy three conditions. First, the proposed surveillance must be for the investigation of ‘serious crimes’ or for protecting ‘public security’.

Second, requesting officers must articulate a reasonable suspicion that the person in question has been or will be engaged in criminal activity or threaten public security.

Third, the judges or senior officials must balance the seriousness of the likely offence and the value of any information that may be obtained against the intrusiveness of the proposed surveillance.

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The question that this article seeks to ask is whether the ICSO is drafted in a way such as to ensure encrypted messages in the public place or on the Internet are free from interception and decryption?

What is Encryption?

Encryption is the process of encoding messages from its readable plaintext to ciphertext (i.e. encrypted or encoded information) that can become intelligible to humans or computer only if decrypted. Decryption is the inverse of encryption. It turns ciphertext into readable plaintext using the shared secret key. Encryption is a function commonly available in applications and devices. However, encryption alone does not prevent interception.

As shown in top-secret documents revealed by Edward Snowden, intelligence agencies in the US and UK have successfully cracked a number of online encryption systems. Such conduct has greatly compromised the assurances Internet companies had given to their consumers that their communication, online transactions, medical records, and other documents would be indecipherable to criminals or governments. It was revealed that intelligence agen-

cies applied a variety of methods, including supercomputers, to break such encryption codes.

In Hong Kong, the situation appears to be the same. This is apparent from recent revelations that the ICAC has been seeking decryption capabilities from an Italian online surveillance company. It is therefore essential to examine the weaknesses of the ICSO. Relevant weaknesses of the ICSO The ICSO, since its genesis, is fraught with defects. The ICSO regulates only four law enforcement agencies, namely the Customs and Excise Department, the Hong Kong Police Force, the Immigration Department, and the Independent Commission Against Corruption.

Other Government departments, foreign agencies, or even PRC state forces are not covered. It was believed that PRC agencies have increased their political surveillance in Hong Kong since the wake of 1 July 2003 protests against Art. 23 of the Basic Law and the 2014 Umbrella Movement. Hence, even if the four listed LEAs are precluded from peeping into our private communications at will, other agencies can do so on their own initiatives.

Aside from this, there is ambiguity as to whether communication transmitted through the Internet is covered by the law. The ICSO defines ‘communication’ as ‘any communications transmitted by

HONG KONG

telecommunication system’. Technically, this phrase is broad enough to cover communications on the Internet. However, the Commissioner of Interception of Communications and Surveillance and the Secretary for Security has repeatedly expressed that Internet communications and information are beyond the scope of the ICSO’s regulation.

In response to this loophole in the law, an advocacy group has called on the Government to amend the ICSO to include ‘internet communication’.

wide and clear enough to shield information in the public place from interception, albeit encrypted. But this is not the end of the matter.

HKSAR Government’s role

Additionally, there is lack of clarity regarding what ‘public security’ is.

The ICSO and the Code of Practice prescribe ‘public security’ as excluding advocacy, protest or dissent unless there is a likelihood of ‘violence’. ‘Violence’ is defined as not to cover minor scuffles or minor vandalism. However, advocacy groups have challenged the Government on irregularities in enforcement particularly during the Umbrella Movement, where the police considered the wearing of goggles and plastic warps as violence and hence threatening public security in Hong Kong.

Art. 14 of the Hong Kong Bill of Rights Ordinance (CAP 383) (HK BORO), which is the equivalent of Art. 17 of the International Covenant on Civil and Political Rights (ICCPR), guarantees the right to privacy, including correspondence.

In Coeriel v The Netherlands Communication No. 453/1991, U.N. Doc.CCPR/C/52/D/453/1991 (1994), the Human Rights Committee clarified that the notion of privacy refers to the ‘sphere of a person’s life in which he or she can freely express his or her identity.’ The ECtHR expanded this notion of privacy in the Case of Segerstedt-Wiberg v Sweden App. No. 62332/00 to include information in the public place where it is systematically collected and stored in files held by the authorities. Doutbless, information and messages in the public place fall within the sphere of privacy, and are therefore protected under Art. 17 HKBORO.

Such vagueness in the law may cause the ICSO to fall foul of the principle elucidated in Malone v United Kingdom (1991) 13 E.H.R.R. 448.

In that case, the European Court of Human Rights (ECtHR) held that a law which confers a discretion on the police as to the lawfulness of interception of communications ‘must indicate the scope of any such discretion with sufficient clarity, having regard to the legitimate aim of measure in question, to give the individual adequate protection against arbitrary interference.’

Consequently, it can be said that the historic ICSO had not been drafted

Furthermore, it was clarified under General Comment 16 on Art. 17 (Right to Privacy) that the Government has a positive duty to guarantee our right to privacy through the enactment of laws and other measures such as monitoring. Any interference must not be arbitrary and must be envisaged by law in compliance with the principles of the ICCPR. In practice, this means that what the ICSO does not cover, the Government must not do. Hence, for example, if the Internet is not covered by the ICSO, then the LEAs must not intercept messages or obtain information on the Internet.

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Finally, by United Nations General Resolution 28/16 on the Right to Privacy in the Digital Age, the Human Rights Council stressed that what is traditionally protected offline must be equally protected online. Encrypted messages are analogous to postal packets. They embody the form and intent of excluding unauthorised recipients from reading the contents. Given that the Post Office Ordinance (Cap. 98) forbids any person from opening any postal packet, the same protection should be accorded to online encrypted messages. In other words, online encrypted messages should be strictly off limits from anyone other than the recipient unless there is proper authorisation.

Conclusion The ICSO as it stands today lacks the necessary provisions to ensure non-arbitrary and lawful interference by the Government. Unclear scope and ambiguous terminologies could easily undermine the fundamental right to privacy of individuals. Perhaps a judicial review is needed to invite the courts to ascertain the scope of the ICSO. Until then, encrypting messages may only serve limited purposes. At any rate, LEAs or even non-LEAs may decrypt messages in the public place.

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HONG KONG

Domestic and Cohabitation Relationships Violence Ordinance: Effective Measure or ‘Paper Tiger’?

Incomprehensive drafting

Introduction

T

he Domestic and Cohabitation Relationships Violence Ordinance (DCRVO) aims to ‘provide protection of persons from violence in domestic and cohabitation relationships’. According to the Hong Kong Police Force, the number of domestic violence cases between January to August in 2015 is 965 . The number is astonishing when contrasted with the number of reported cases in courts. It appears that there are only two reported cases where the court granted injunctions to protect the alleged victims . The stark difference between the number of reported crimes and court cases demonstrated the DCRVO’s impotence. This article contends that it is as a result of the DCRVO’s poor drafting, social misconceptions, and police inactivity towards the issue that there is this disparity in reported cases and court decisions.

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DCRVO lacks a clear definition of ‘domestic violence’. A 2002 study revealed that men tended to have a narrower definition of the term ‘violence against women’ than women. The study highlights that while men do not regard foul language, dirty jokes and sexual discrimination towards women as ‘violence’, women do. With this ambiguous definition of ‘violence’, victims are unsure if the way they are treated fall under the governing scope of the DCRVO. The problem is further aggravated by the fact it is an offence in Hong Kong to waste police resources. Victims may get prosecuted if the police subjectively reckon that their case is ‘capricious’. This fear of prosecution coupled with the complicated and lengthy procedures in police reporting, may explain why the abused do not report their situation.

Compared to the DCRVO, the Istanbul Convention is drafted in a clearer manner, providing concrete definition of the term ‘domestic violence’. Under Art. 3(b), ‘domestic violence’ means all acts of physical, sexual, psychological or economic violence’. This is a broad definition and it maximises protection against physical, psychological, and even economic exploitation. This wide definition enables victims to understand that relief is available for their situation.

Timothy Chow

In contrast, the vague scope of DCRVO means that victims have to bet on whether the police will perceive the alleged violent treatment as serious enough to warrant further investigation.

Social misconception The concept of family lying in the private domain is another hindrance on the DCRVO. Traditionally, it is generally accepted within the Chinese community that what happens inside one’s family is of no concern to an outsider. As a result, domestic violence becomes a clandestine practice in many families. It might be argued that ‘rules of a family’ ought to differ from one another in order to cater for the unique situation of each family. However, this traditional

HONG KONG perception which condones domestic violence to some extent means that victims may not be aware of their entitlement to protection. This concept explains the low number of reported cases on domestic violence in Hong Kong.

Some cases of domestic violence have been justified by this social perception. Coupled with the uncertain definition of the DCRVO, a low rate of utilisation of the statute is foreseeable.

Police interaction with domestic violence also affects the reporting rate of domestic violence. LC Leung’s 2014 research suggests that the police tend to adopt a non-intervention approach towards domestic violence. They may overlook the seriousness of the situation and dissuade the victims from pursuing their claims. Arrest is rare, unless the violence is so intense that it causes injuries amounting to a criminal offence.

Recent studies have argued that the traditional Chinese concepts have perhaps been weakening in Hong Kong, given that this is a place where eastern and western values fuse. The concept of individual rights may trump over the conservative Chinese beliefs surrounding the family unit. However, as the abovementioned studies have shown, this misconception does exist and it may thwart DCRVO’s effectiveness.

The police’s passive attitude towards domestic violence can be explained in two ways. Firstly, traditional Chinese beliefs affect how the police deal with the case. Breaking a structurally intact family is deemed to be shameful and unscrupulous.

This may account for the prevalence of the ‘mediation’ approach taken by the police in face of domestic violence. Secondly, the police have generally adopted a skeptical attitude towards the people they deal with. The purpose of police investigation is to cautiously deduce the truth based on facts which may be

Police inactivity

21

fabricated and suspicious. As a consequence of this ‘suspicion-oriented mindset’, police officers may unintentionally adopt an ‘untrustworthy’ attitude towards the victim.

The police’s decision on further investigation directly affects the victim’s relief. As the police may be reluctant to interfere, it is highly probable that reporting the case would not result in a victim receiving any assistance.

Conclusion DCRVO remains an ineffective legislation but improvement of the situation requires both legal and social efforts. A clearer definition of ‘domestic violence’ would provide more certainty in the law.

Meanwhile, society should change its perception towards domestic violence. There should not be any tolerance for violence of any kind, whether they be in public or in private. The police should also take a sympathetic and proactive attitude in handling reports of this nature.

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HONG KONG

No Warrant? No Problem: ISPs’ Role in Voluntary Disclosure of Users’ Metadata to Authorities

L

ast September, the Hong Kong Transparency Report revealed the staggering number of user data requests made by the Hong Kong Police Force (the Police) to Internet service providers (ISPs).

The report came as a revelation as it disclosed the fact that not all user data requests were made under court orders, and that such requests were sometimes acceded to

by ISPs voluntarily. In the aftermath of the unprecedented Umbrella Movement, the practice of warrantless user data requests raise serious questions as to the extent to which the Police can easily obtain online activists’ real identities with the help of ISPs and, more importantly, the legality of such practice.

regarding legality of warrantless requests is thus ambiguous. The Police knows and does not dispute that it could be rejected without legal consequences on the receiving parties. If such requests are not acceded to, they can then try to obtain a court order to compel the ISPs to disclose the data. Given the consequences of the requests, which had the effect of revealing someone’s true identity and uncloaking his or her anonymity, it is worrying that the Police could actually opt for a route that bypasses judicial authorisation.

While disclosure of data by ISPs pursuant to court orders is legal, the legality of voluntary disclosure

Edwin Chau

less any applicable exemptions of the Ordinance apply. Exemptions include s. 58(1)(a) ‘prevention or detection of crime’ and (b) ‘the apprehension, prosecution or detention of offenders’. However, they are not blanket exemptions that anything falling within it will automatically be qualified. While it is certain that a request from the Police would meet the first criteria, the second limb of the exemption test must not be overlooked. S. 58(2) stipulates that the exemption could only operate if the application of DPP3 ‘would likely prejudice’ the above matters.. The PDPO puts the liability on the parties who hold and choose to disclose the data instead of the requesters. The exemptions work as defences that data users – here the ISPs – can raise if they find themselves involved in legal proceedings for contravening DPP3. The crux of the issue of ISPs’ voluntary disclosure is thus whether they can show to the court that the second condition has been met.

Objective test requirement to ‘prejudice’ in s. 58(2)

Police requests and voluntary disclosure In a LegCo meeting in April 2015, in response to a question on warrantless requests, a government representative confirmed that if such demands did not follow legal procedures, the ISPs could choose not to comply. Thus the status HKSLG · FALL 2015 · ISSUE 7

to a warrantless request by the Police is highly disputable. In Hong Kong, the only relevant legal framework is the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO) under which Data Protection Principles 3 (DPP3) stipulates that personal data shall not be used without the data subject’s consent for any other new purposes, un-

When will non-disclosure of data prejudice matters such as detection of crime? Whether non-disclosure will likely prejudice the relevant purpose does not solely depend upon the subjective belief of ISPs. It is an objective inference, according to the Administrative Appeals Board’s 5-2006 decision on a similar case involving voluntary disclosure of client’s personal data by the Hong Kong Jockey Club to the Police. It is

HONG KONG

insufficient for ISPs to claim that the test has been met simply because the Police has said so. The data user must objectively assess the request, consider the consequences of non-disclosure, and even seek further clarifications regardless of delay. Otherwise, the defence based on the exemption may fail and the requirement of DPP3 be contravened. The data user also has no duty to be compelled to disclose data subjects’ personal data even if the warrantless request was made by police force in relation to crime.

Police force’s unilateral guarantee is insufficient, if not misleading, as to ISPs’ actual liability. It is thus obvious that the risk lies completely with the ISPs instead of the Police.

The ISPs must, for their own interest, take a more cautious approach under such a risk.

Could the test ever be met for a warrantless ‘mere request’?

To eliminate such risk, the ISPs could even argue that the objective test in determining whether refusing the Police’s warrantless request would prejudice the matter could

rarely be met. The meaning of ‘prejudice’ to the matter can bear two meanings. The first is the mere delay caused by rejection to the Police’s request and by the fact that the Police would need to resend a more detailed request, or simply go through court procedures, to obtain an order from panel judges. The second is a delay that materially and adversely affects the status of the evidence as well as the subsequent operation by the Police to bring the criminal to justice. The first delay is harmless and could not reasonably be seen as prejudicial; an interpretation otherwise would make the threshold unreasonably low. Prejudice must bring about a more substantive impact as in the second scenario.

However, ISPs could have reasoned: if the matter was urgent, why didn’t the Police in the first place apply through court procedures on the basis of having reasonable grounds?

The fact that they have sent a mere request knowing the possibility that the receiving parties could reject it is the manifestation of its non-urgent nature.

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It is doubtful whether ISPs receiving a warrantless request could have objectively and reasonably arrived at the conclusion that refusal could cause prejudice to the matters, knowing that the Police has in front of them legally binding and speedier options but nevertheless chooses not to use any of them.

Accordingly, ISPs’ compliance with such request always run the risk of contravening DPP3.

The practice of warrantless user data request is wholly dissatisfactory and should be curbed. It not only puts ISPs in risky situations just for the sake of the Police’s convenience, but also sends chilling effects to online political activists who are entitled to hold reasonable expectations of online privacy when acting within the limits of the law. Even though legal reform to further enhance protection of online data in the imminent future does not seem practical, properly construing the current PDPO should at least restore rights and protections that Internet users are entitled to.

Conclusion HKSLG · FALL 2015 · ISSUE 7

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CHINA

After Qualcomm: Are Foreign Firms Unfairly Targeted

by China’s Antitrust Enforcement?

Introduction

I

n February 2015, the National Development and Reform Commission (NDRC) issued a record RMB 965 million fine to Qualcomm for breaches of the AntiMonopoly Law (AML). Not only was the penalty unprecedented for foreign multinationals, it also raised questions of whether the AML serves purposes other than antitrust enforcement.

The issues in Qualcomm In its decision, the NDRC found that Qualcomm had dominant positions in four relevant markets for wireless technology patents and that Qualcomm breached Arts.

17(1) and (5) of the AML by charging unfairly high royalties to its Chinese licensees. In turn, legal commentators have compared the decision to past NDRC cases involving domestic firms and pointed to anomalies in the Qualcomm investigation.

First, in Qihoo 360 v. Tencent (2014), the Supreme People’s Court did not find Tencent to have HKSLG · FALL 2015 · ISSUE 7

a dominant position even with 80% market share in instant messaging services. By contrast NRDC found Qualcomm to be dominant in the WCDMA baseband chip market despite having a lower market share of 53.9%, barely passing the Art. 19 AML threshold of 50%. Second, critics have questioned the timing of NDRC’s investigation. Texas Instrument had first raised the same anticompetitive complaint against as early as 2008 yet a formal investigation was only initiated in 2013. As a result, critics were compelled to conclude that the Qualcomm case is further evidence that China is using antitrust enforcement for the purposes of domestic protectionism. With the growth of domestic industries within China and the NDRC’s increasing focus in these areas, there are mounting concerns that the AML is applied unevenly to foreign multinationals.

A different interpretation Although the Qualcomm case has raised alarms in multinational companies dealings with China, government and academic commentators, have downplayed such fears.

Since the AML’s operation from 2007, the NDRC prosecuted over 335 cases for antitrust infringements, with only 10% of the cases involving foreign companies. As such, antitrust proceedings against foreign multinationals remain an exception. In fact, the NDRC has

Quentin Wong

taken action against state owned China Unicom and China Telecom for anti-competitive behaviours. This suggests that antitrust law enforcement is not in fact selective against foreign firms.

In addition, commentators point out the fact that the Qualcomm case is not part of a wider trend of targeting foreign companies. In fact, US and EU authorities had already commenced antitrust proceedings against Qualcomm. The evidence shows that China’s regulators are following the steps of their peers abroad. As a result, it would be natural for their investigations to involve multinationals.

Conclusion: mixed messages on enforcement on foreign firms?

Nevertheless, even if one cannot disregard one’s suspicions towards the Qualcomm case, the non-merger antitrust regime in China is constantly evolving. In 2015, the AML will mark its seventh anniversary. While commentators have praised the Chinese government for putting in place an antitrust regulatory that conforms to world standards, enforcement standards will inevitably be shaped within China’s unique economic and political environment. The State Council will convene in September 2015 and review the AML as part of a legislative program. It remains to be seen whether more guidance and certainty would be given to major stakeholders such as foreign multinationals.

CHINA

The Hollow Hope: Can The New Pollution Law Bring Real Changes in China?

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n August 2015, the Standing Committee of the National People’s Congress passed the newly amended Law of the PRC on the Prevention and Control of Atmospheric Pollution (PCAP). Given the current efforts by China in solving its chronic environmental problem, it is useful to examine the efficacy of the new law in the context of a broader anti-pollution movement.

For individuals, the PCAP fails to recognise individuals’ rights to a healthy and clean environment.

Rather than by imposing a positive obligation for responsible stakeholders to protect atmospheric environments, the efficacy of the legislation is maintained solely by penalty and deterrence. As such, it is doubtful whether the law can be effective in its implementation if the government is its sole enforcer.

Progress in the new law In its amended form, the PCAP presents certain developments.

In terms of length, the number of clauses was doubled in the former legislation. The new law also gives the government better tools to regulate unlawful practices.

For instance, the deterrent effect of penalties is strengthened as the maximum ceiling for fines is removed. In short, the overall aim to improve the national atmospheric environmental quality is more or less reflected in the amended legislation.

Defects and practical challenges Generally, a law should contain more than general guiding principles. However, the PCAP is drafted in a vague way without concrete instructions. Phrases such as ‘should/may take measures’ are common throughout the new law without specifying any timetable or method of enforcement. In this sense, the deficiencies of the PCAP on paper are obvious.

Also, the PCAP fails to recognise basic individual environmental rights, and as a result the Western system of public interest environmental litigation (PIEL) is absent in the new legislation. Under a PIEL system, a strategic and successful case can benefit, for example, residents who suffer from severe atmospheric pollution without every individual affected having to engage in litigation themselves. PIEL can be used as a tool to challenge governmental policies to ensure that appropriate administrative orders are issued to regulate polluting behaviors. Similarly, PIEL can also shape the development of environmental law by seeking clarification on gaps or any untested point of the law.

As such, without a robust PIEL system in place, potential environ-

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Henry You

mental NGOs that can complement the enforcement of the new environmental law are excluded from the picture. With potential restrictions from the Foreign NGO Management Law , environmental NGOs such as Greenpeace tend to be heavily restricted to bring lawsuits against the government for failing to enforce environmental laws. Consequently, the burden of supervising the enforcement of the PCAP is completely placed on the government.

The practical problem of legal enforcement of Chinese legislations is noteworthy. The clearest example is localism. To develop local economies, local governments in China place excessive reliance on energy consumption and resources exploitation and such a development pattern is completely against the aim of the PCAP. Thus, the local governments’ incentives to enforce the PCAP are questionable.

In addition, local regulations are often drafted in a way to promote narrow departmental or local interests rather than the common good, which aggravates the problem of localism.

Conclusion It is an encouraging sign that the PCAP is finally amended since its last revision in 2000. However, with deficiencies on paper as well as practical problems with enforcement, it is doubtful that the PCAP will be effective in reducing atmospheric pollution.

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CHINA

A New Age for Chinese Bilateral Investment Treaties: Expropriation Re-examined

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nder public international law, a state can exercise its sovereign claim over any property located within its territory, including foreign-owned private property.

However, this prerogative is not an absolute right. Indeed, customary international law holds that expropriation must be: (i) for a public purpose; (ii) non-discriminatory; (iii) in accordance with due-process; and (iv) compensated. Problematically, while states agree to these conditions in principle, they hold divergent views in their interpretation. In particular, controversies are common on the construction of ‘compensation’ and difficulties also arise when states expropriate investments for legitimate regulatory purposes.

Bilateral Investment Treaties (BITs) supplement public international law in this respect by bringing precision to the rules governing international investments. Through BITs, states are free to agree on the rules governing ‘compensation’ and ‘expropriation’ between themselves. Ultimately, the role of BITs is to create consistency to prevent disputes and ensure clarity to facilitate the settlement of disputes.

In these ways, BITs give investors confidence in the security and potential of their investments.

How BITs coincide with Chinese interests China’s inflow investment potential is sizeable. While China is the world’s largest economy, China acHKSLG · FALL 2015 · ISSUE 7

counts for only 4-5% of European investments abroad. In a similar vein, China’s outflow investment potential also remains largely untapped: China’s foreign direct investments (FDI) represent less than 3% of FI in the EU. Outside the EU, China is looking increasingly towards Africa, Latin America, and Central Asia for FDIs in raw materials.

Given these considerations, it is imperative that China draws a new road map for economic trade to replace the one it has used since becoming a World Trade Organization member in 2001. Accordingly, modern BITs would allow Chinese financial potential to manifest in new streams of trade and investment.

The makings of a modern BIT Although China’s legal framework has changed drastically in the past two decades, the legacy of its prior regimes continues to influence investment attitudes. Therefore, fair and transparent BITs that assure mutual protection of foreign investments in China and Chinese investments in foreign states would go a long way in boosting investor confidence. In part, this would require Chinese BITs to demarcate the boundary between different constructions of ‘compensation’ and to resolve the inherent tension between ‘expropriation’ and ‘legitimate regulations’.

Compensation

Crystal Yeung

In the past, China embraced the Calvo Doctrine to assess compensation for the expropriation of foreign assets. The Calvo Doctrine highlights that the treatment of foreign investors should be ‘no more favourable than’ that accorded to national investors. Under this definition, foreign investors are not protected if a State’s domestic laws on compensation are intrinsically unfavourable.

Since around 2000 however, China began adopting a variation of the Hull Formula. The Hull Formula better embodies the principle of just compensation as it prescribes that compensation must be ‘prompt, adequate, and effective’.

However the Hull Formula remains inadequate because it leaves open critical determinations such as the valuation date and interest terms.

For example, the China-Chile BIT only requires that compensation ‘shall amount to the real value of

CHINA

the investment’ and the SwedenChina BIT simply declares that compensation should ‘place the investor in its original financial position’. Although this appears just and reasonable, these terms do not delineate a consistent method to determine the actual compensation owed to an aggrieved investor.

This article suggests that the compensation provisions in Chinese BITs should define the appraisal methods for both valuation dates and interest terms. Valuation can be explicitly designated as ‘immediately before expropriation was made public knowledge’ or ‘immediately before the expropriation took place’. The latter designation is reflected in the China-Peru Free Trade Agreement where compensation is held to be ‘equivalent to the fair market value of the expropriated investment immediately before the expropriation took place’.

Similarly, interest could be defined as ‘the prevailing commercial interest rate from the date of expropriation to the date of payment’.

Expropriation Direct expropriation, defined as ‘the mandatory legal transfer of property or its outright physical

seizure’, is rare today. Instead, expropriation usually exists in an indirect form as ‘a measure that does not involve an overt taking, but that effectively neutralizes the enjoyment of the property’. Disputes on this often hinge on the difference between lawful regulation and indirect expropriation because unlike expropriation, states are generally not liable for losses resulting from the good faith application of policy measures.

The tension between economic regulation and expropriation was explored in Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6. In Tza, the claimant was a Chinese national who owned a purchase and exporting company (the Company) in Peru. The question before the Arbitral Tribunal was whether interim measures imposed by the Peruvian taxing authority, which included a direction to Peruvian banks to retain any funds passing through them in connection with the Company’s transactions, amounted to indirect expropriation. In arriving at its decision, the Tribunal considered whether the interim measures ‘significantly interfered’ with the Company’s operations as well as the ‘arbitrary nature’ of the interim measures.

On the question of ‘significant interference’, the Tribunal found that the interim measures were a ‘strike at the heart of the operative capacity of [the Company]’. Since the Company’s business model used Peruvian banks to conduct its transactions, the interim measures ‘severely and substantially’ interfered with the Company’s operations. On the question of ‘arbitrariness’, the Tribunal found that the tax measures were arbitrary in nature because they did not comply with Peruvian taxation guidelines.

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Viewed in totality, the Tribunal held that the imposition of interim measures constituted an indirect expropriation of the claimant’s investment, thereby breaching the China-Peru BIT. Tza is illuminative as it sets out the default factors for determining indirect expropriation. More importantly, it highlights the importance of minimising ambiguities in regulation-caused expropriation. To that end, the Chinese BITs should adopt a formula for indirect expropriation similar to the 2012 Model U.S. BIT. Under Art. 4 Annex B of the Model U.S. BIT, factors such as: (i) the economic impact of the government action; (ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and (iii) the character of the government action, contribute to the determination of whether an action constitutes a legitimate sovereign act or indirect expropriation.

Towards stronger investment relations Since signing its first BIT with Sweden in 1982, which provided very limited protection for foreign investment, Chinese BITs have evolved significantly. The emergence of ‘second-generation’ Chinese BITs in 1998 offered more substantive protection for foreign investment and transformed China’s FDI framework. However, China’s legal, political, and economic models have progressed immensely since that time. It should therefore embrace a comprehensive and anticipatory approach in its BIT negotiations and re-negotiations. Such a transition would assist China in building its foreign investment capabilities.

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FEATURE

Interview with Mr Justice Tang PJ Keith Cheung

Bryan Lam

Noel Chan

Mr Justice Robert Tang PJ

at the end of the day one feels less tired. So I am very glad to be back in this building.

M

What do you do in your leisure time?

r Justice Tang PJ is one of the three permanent judges who currently sits on the Court of Final Appeal.

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• • • •

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Called to the the English Bar at Gray’s Inn in 1969 and Hong Kong Bar in 1970 Appointed Queen’s Counsel in 1986 and became Senior Counsel in 1997 Appointed Recorder of the Court of First Instance in 1995 Appointed Judge of the Court of First Instance in 2004 Appointed Justice of Appeal in 2005 and Vice President in 2006 Appointed a Non-Permanent Hong Kong Judge of the Court of Final Appeal in 2010 Appointed a Permanent Judge of the Court of Final Appeal on 25 October 2012

Since the restoration of the Supreme Court recently how has that impacted you in anyway?

I was called to the Bar in this building on the 5th of December 1970 and so I am very happy to be back.

And of course, after I began my practice I practiced in this building as well. But more importantly, the accommodation that we had on Battery Path was really inadequate, the court there was much too small and on the bench it was very cramped. There was not enough elbow space or space for our papers.

Here we can spread them out.

For the judges, it is much more HKSLG · FALL 2015 · ISSUE 7

comfortable. For counsel, Battery Path was also worse. I remember practicing there as a barrister.

There was simply no room for documents. You can’t open more than one or two files. I remember having to put some of the files on my lap in order to look at them. And sometimes you need to look at two or three files at the same time, so it was very difficult for counsel. Now there’s plenty of room for everybody. There isn’t the same tension and so one feels more relaxed and it’s a much more comfortable court. It is quiet and the acoustics are good and it is more relaxing. So

I’ve been a judge for 11 years. I have young children because I married late so I spend a lot of time with my family. Otherwise I don’t think there is much difference between being a judge and a barrister.

When I was at the Bar I was extremely busy, I had less leisure time than now. In my case anyways, I don’t think I was a very sociable person, I tend to work six, seven days a week.

Well I’m a collector and recently I’ve published a book on part of our jade collection. There will be an exhibition about our jade in November this year. So I spend time collecting. I spend a lot of time reading because I enjoy reading and I spend some time listening to music. I read all sorts of things. I like to read biographies.

I like to read about politics. Sometimes I even read novels. I like to read history especially Chinese history. Reading tends to take up my leisure time, also I exercise, I try to keep fit.

How does it compare to be a permanent judge on the Court of Final Appeal and judging cases at the lower courts?

FEATURE I became a judge eleven years ago.

I was a judge of the Court of First Instance for about a year. And then I was in the Court of Appeal about seven years. I have to say that it is very different in the Court of Final Appeal. The cases that we have to deal with tend to be interesting and important cases. Important certainly to the parties and very often to the community as well.

Because this is the third time round for the parties, they tend to be much better prepared. Although surprisingly the fact that they’re doing it the third time doesn’t make it any easier. From my personal experience, arguments which sound convincing the first two times round can suddenly fall flat and sound completely hollow.

And so one has to refine one’s arguments for the final appeal.

And we have more time to prepare for our cases and sometimes we may take a week preparing a hearing because of the documents we have to read and the authorities that we have to digest. But in the lower courts there wasn’t this luxury of time, one was always pressed for time. And also in the Court of Final Appeal, we have the benefit of the judgments from the courts below. It doesn’t matter whether we agree with them or not. It is immensely helpful to have the benefit of carefully reasoned judgments at first instance and then at Court of Appeal. They help us to arrive at our ultimate decision. So I think the Court of Final Appeal is very different. We are busy but we are not so busy that we don’t have time to think.

Even on the bench, judges often disagree with each other, either

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on the outcome of the decision or a decision’s reasoning. What do you find to be the significance of that?

Dissenting judgements can be important. As I was saying, we have more time to prepare and I think it is important to understand that although there’s only one judgment prepared by a named judge, it doesn’t mean the other judges who simply agree with their colleague did not work on the case or had not thought about it deeply. I think the modern trend is towards one judgement. I was recently told that in Canada they try to produce one judgment. If there is dissent, they have one majority judgment and one dissenting judgment. We now live in an increasingly complex world and lawyers and the community demand or require clarity and certainty in the law.

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FEATURE

“Law actually reflects life and is the product of a culture. Common law is the product of a civilisation which values freedom.

It is also the product of a culture which practices self restraint in the exercise of power.

A culture which believes in the rule of law and not rule by law.”

It wouldn’t do to have nine judgments all saying different things although they all arrive at the same conclusion. The lower courts would not know what represented the ratio of the particular decision. So the modern trend is towards one judgment and we try to reach consensus. We have lengthy discussions and sometimes animated discussions about our cases.

We write memos to one another and the process can begin before the hearing has begun. So we talk about cases, think about them and after the hearing we discuss it some more. After someone has prepared a draft we will all study the draft and often we would meet to discuss to see if we can all agree.

Sometimes a judge may have certain suggestions over the language.

Sometimes a judge may wish to put the matter differently. So we work and try to see if we can arrive at consensus.

Very often one knows very early on whether one is likely agree or disagree. Speaking for myself, for example, there have been cases where I have prepared my own judgment but ended up not using it at all because my colleague’s draft has accommodated my views HKSLG · FALL 2015 · ISSUE 7

or convinced me that I was wrong.

Sometimes I do not deliver my judgments because I prefer hi draft because he has put the matter more clearly. So we all try to – well hope – to arrive at the correct answer. I think one good thing is that even if we don’t agree we respect one another’s view. I would dissent if it is a matter of principle or if I arrive at a different conclusion or if I feel that there is something that I needed to say then I would write my own judgment. So there is no question of ego involved or grand standing. We all try to come up with a satisfactory conclusion.

The differences in reasoning gives people an insight into the law. If there is more than one way at arriving at a conclusion, in the particular case it may not make a difference. But there may be cases where the difference is important. So if one has arrived at the conclusion in a different way, and it may add to the jurisprudence that may be a good reason for a separate judgment.

When we interviewed Mr. Denis Chang SC, he noted that ‘law is life; although life is of course much more than law’.

What do you think about that?

How has this view affected your views on life?

FEATURE This is quite a difficult question and I have read Denis Chang’s article with some care. Denis and I are of course old and good friends.

I think I’ll say this. Law actually reflects life and is the product of a culture. Common law is the product of a civilisation which values freedom. It is also the product of a culture which practices self restraint in the exercise of power. A culture which believes in the rule of law and not rule by law. For us in Hong Kong, although common law and the rule of law belong to an alien culture, we have embraced it. But are the roots deep enough?

In our country’s long history, we have produced much that we can be proud of. But the rule of law which we enjoyed in Hong Kong never developed in our country.

Freedom is indispensible to the

common law. And common law is the product of a free people. In England they have the Magna Carta. In Hong Kong we have the Basic Law’s solemn promise of one country two systems. I believe when the Basic Law was promulgated, those who had power over Hong Kong understood that our fundamental freedoms were an inseparable part of our system. They are the freedoms as understood and practised under common law. And that they also understood that without such freedoms there could not be the rule of law. As part of the rule of law, you must have an independent judiciary and an independent legal profession: they’re essential.

For the rule of law to continue in Hong Kong, it is vital that such understanding continues.

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How do you view the development of the common law under the Basic Law which enshrines one country two systems?

When one looks at the two systems, one has to ask what is the Hong Kong system and what is integral to Hong Kong’s system.

I think the common law is integral to our system. It is essential for the survival of the rule of law that we continue to enjoy the freedoms that we have always enjoyed such as the freedom of expression.

Without the freedom of expression, other freedoms cannot exist.

It is the most basic thing: you are free to express your views, to think what you think. I think that’s very important. I don’t see one country two systems should impact on that. And that is why I said in my

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FEATURE

earlier answer that people who were responsible for the Basic Law understood that our fundamental freedoms are an inseparable part of our system. That is also why I said in my previous answer that for our system to continue, we need that understanding to continue too.

Do you think the general public in Hong Kong has sufficient and satisfactory access to justice and in what ways do you think access to justice can be improved in Hong Kong? What steps if any do you think the legal profession can be reflective of the society as a whole and if there are any such steps to take in this direction, who should take those steps or is it a collective effort?

Access to justice is of course important but I think it is important not to take a dogmatic view. I’m a firm believer of legal aid in criminal and human rights cases. I also believe in

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“We mustn’t allow one’s natural sympathy to cloud one’s judgment. There’s a difference between compassion and judgment.” the importance of equality of arms.

But in civil disputes, I think it is important not to lose sight of cost and benefit. Since resources are limited, choices have to be made. The com-

munity must decide on the allocation of limited resources. Access to justice comes at a price. In civil disputes –one has to be careful not to overlook that litigation is expensive.

And if one has legal aid, one may litigate without costs or at very low cost to oneself. And in certain cases like PI I can understand the provision of legal aid or supplementary legal aid. But with respect to other civil disputes, if one were to look at access to justice in a theoretical way, one may say that it is wrong for a person not to be able to go to court due to lack of means. But I would also say this: there are bound to be cases where if one has to spend one’s own money, one would not go to court. But if that person qualifies for legal aid, is it right that the community should pay so that he could go to court. So access to justice is not an easy question. One has to decide when resources are limited how they are spent.

FEATURE in response to difficult situations, in particular during the Occupy Central period. How should our laws protect citizens exercising their rights of expression as well as our law enforcement officers?

As for the legal profession being reflective of Hong Kong society as a whole, we really don’t have a class system in Hong Kong. Education is available to literally everyone who wants to be educated. I don’t believe it is likely that a person could not become a lawyer because he/she couldn’t afford it. I think in that respect we are very lucky there is upward mobility and free education in Hong Kong, with the exception of universities. But there are ways one can obtain the means to acquire a university education. So I think the legal profession in Hong Kong as far as I can see is reflective of society in Hong Kong.

In HKSAR v Chow Nok Hang [2013] HKEC 1813 you made the following observation [at 178]: In the common-law world, I can say with confidence that, if [police officers] use excessive violence in effecting arrest, they will be visited with the full force of the law.

Many recent events involved allegations of excessive police force

I can’t really comment on current affairs but speaking generally I think we have a police force which is second to none in the world. But if individual officers use excessive force, they can expect no favours from the courts just as people who attack the police can expect none. I can’t comment on specific cases which must be resolved in the courts. I would, however, counsel against labelling a court according to its decision. I see no inconsistency in a court convicting a police officer one day for using excessive force and convicting a citizen the next for attacking a police officer. Each case would turn on its own facts. Whether these cases are heard by the same judge or different judges, the principle is the same.

Freedom of expression is of course a core freedom and any limitation placed on it would be most carefully scrutinised and must be proportionate if it is to have effect. It is also vitally important that the exercise of freedom of expression must not carry adverse consequence.

In response to assertions that a decision might invite floodgates (of migrants), you noted that ‘the solution is not to reduce Hong Kong’s human rights standard.

The rule of law has real consequences and effect must be given to them’ (C v Director of Immigration [2013] HKEC 428 [51].

How would you characterise Hong Kong’s human rights standards in particular to refugee cases?

I think our human rights record is good. You can see that in, for example, the large number of Vietnamese refugees who were accommodated in Hong Kong and who

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were accepted here. But I think it is important not to allow our natural sympathies for people who are driven by economic circumstances to leave their homes and embark on a perilous journey to seek a better life. We mustn’t allow one’s natural sympathy to cloud one’s judgment. There’s a difference between compassion and judgment. If I am not called upon to enforce the law or that the law permits me to do as I please, I might welcome economic migrants with open arms.

But rightly or wrongly there are national boundaries which have to be respected. There are thousands of asylum seekers or torture claimants. The fact of life is that many of the claims are unfounded but it is important that when the claims are genuine we must live up to our human rights standards. I think our decisions have made that clear.

“It is essential that the concept of one country which is widely accepted in Hong Kong should not be understood as requiring any diminution of our freedoms.”

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FEATURE

Without a doubt arbitration is playing a key role in dispute resolution. However, arbitration is about consent. For instance, parties may be able to restrict discovery. How should a court or tribunal handle these delicate issues of on the one hand respecting party autonomy but also on the other concerned with doing justice?

I think open justice is important.

Discovery of course should not be excessive because it can be oppressive. But there must be adequate disclosure of documents for the proper determination of the dispute. I think that is where one should draw the line, there should be no more discovery than is needed for the proper determination of the dispute.

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Courts should be slow to interfere.

We have to respect the autonomy of parties to the arbitration. What I think the courts can do, is to look at its procedures. To see why it is that people should prefer arbitration to litigation. Is there anything our system of civil litigation can be improved so that people should not choose arbitration over litigation. We have to keep up with the times. The difficulty as I see it is that in arbitration there is anonymity and confidentiality which with our system of open justice we cannot provide. And I would not be prepared to give up open justice in order that people should prefer litigation over arbitration.

But apart from that, we have to see what can be done so that more people use the courts than arbitration. I

say this not because we want more business but because resolution of disputes are important for the development of the law. If arbitration were in vogue say 300 years ago, then much of our law merchant might not have been developed at all. So it’s not a question of wanting more business. I think for the healthy development of the law, we must have enough litigation.

Do you think Hong Kong has improved its speediness of resolving disputes for people to prefer litigation?

I wish I can say that. The courts are very busy and some delays are unavoidable. But when one talks about delay, arbitration can take years too.

They may not be as speedy as people think. Complicated commercial

FEATURE

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“Law students cannot take the continuation of the rule of law, as we understand it in Hong Kong, for granted.” disputes which go to arbitration often take years to resolve. Sought-after arbitrators are very busy. When I was at the Bar, I was once asked to be counsel in an arbitration where the arbitrator was so busy he can only sit one month a year and only during the summer vacation, the arbitration was expected to take several months which meant the arbitration would span several years so I turned it down. And not surprisingly that case was settled.

So arbitration is not as speedy as they are cracked up to be.

Our readers are mostly law students. What words of wisdom or advice would you like to impart on our readers?

I don’t want to repeat the sort of common advice which are given about hard work and the need for integrity etc. I’ll say this however.

Law students cannot take the continuation of the rule of law, as we

understand it in Hong Kong, for granted. The concept of the rule of law is not indigenous to Hong Kong. However, the rule of law is the foundation of our system, under one country two systems. The rule of law does not and cannot stand alone. It is inseparable from our freedoms such as the freedom of expression, academic freedom etc. It is essential that the concept of one country which is widely accepted in Hong Kong should not be understood as requiring any diminution of our freedoms. If we cannot speak what we feel but only say what we ought to say, Hong Kong would not be the same. It would not be one country two systems. Nor could the rule of law survive in such an environment.

So I would say to law students, the future of Hong Kong is in your hands. It is your privilege and your burden. Even if things look unpromising to you now, do not give up. You can make a difference.

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INTERNATIONAL

Repealing the UK Human Rights Act 1998 – Conservative Proposals for A British Bill of Rights

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rince Zeid Ra’ad Al Hussein, the United Nations’ High Commissioner for Human Rights, has recently denounced the UK Conservative Party’s proposals to repeal the UK Human Rights Act 1998 (HRA), as promised in its 2015 election manifesto. He lamented that it was ‘profoundly regrettable’ that the UK Government had ‘threatened’ to withdraw from the European Convention of Human Rights (ECHR). Although such comments are considered unorthodox for a UN official, it reflects a growing concern over the possibility of the substantial degradation of human rights protections in the UK. Ever since the HRA was passed in 1998, the Conservative Party has contended for its repeal. S. 2(1) of the HRA provides that UK courts ‘must take into account any…judgment, decision, declaration or advisory opinion of the European Court of Human Rights (ECtHR)’ when determining a question in connection with a ECHR right.

The Conservative Party wants to repeal the HRA because it believes that s. 2(1) of the HRA gives the ECtHR too much influence over UK courts. By repealing the HRA, it will effectively ‘break the formal link between British courts and the ECtHR’.

However, this raises more problems. Every member of the ECHR is subject to the jurisdiction of the ECtHR. If the UK remains a party to the ECHR, it cannot withdraw from the jurisdiction HKSLG · FALL 2015 · ISSUE 7

Lincoln Jim

of the ECtHR, unless the ECHR is amended. Amendment of the ECHR would require the consent of all 47 parties of the Convention, which would undoubtedly be difficult to obtain. Therefore, several leading figures of the Conservative Party has indicated that it is prepared to withdraw from the ECHR in order to leave the ECtHR’s jurisdiction if an agreement between the 47 parties of the Convention cannot be reached.

rights by other means in the event that the HRA is replaced with a weaker piece of legislation. In particular, the UK Supreme Court has renewed its emphasis on using the common law ‘as a source of fundamental rights and values’, as opposed to simply ‘relying exclusively on the HRA’. In the end, it may well be the case that the Conservative Party’s ambition to abolish the HRA may not achieve much in practical terms.

In principle, if the proposed British Bill of Rights (BBOR) affords the same extent of protection provided under the HRA and the ECHR, there would not be much cause for concern. However, the fear is that the Conservative Party appears to be narrowing the scope of protection under the BBOR, such as preventing terrorists from using ‘human rights law to resist being deported’. Such fears may prove to be unfounded, as ECHR jurisprudence, which have been previously litigated in English Courts, would have become part of English law.

Judges are also defending these

To further complicate matters for David Cameron and his Party, Nicola Sturgeon, the First Minister of Scotland, has stated that the Scottish Government will rule out any attempts by the UK Government’s to repeal the HRA and enact in its place the BBOR. Whether the Conservative Party will be able to successfully engineer the reforms it has set out to achieve is uncertain and needs to be seen.

What is certain, however, is that if the Conservative Party does succeed, it will significantly transform the constitutional structure of the UK.

INTERNATIONAL

Cambodian Substantive Rule of Law Undermined

by Anti-NGO Legislation

I

n 2014, Hun Sen, the Prime Minister of Cambodia expressed his vision for the Cambodian rule of law which includes: 1. A codified legal framework made of a hierarchy of laws and regulations that complement and reinforce one another to uphold rights and obligations; 2. A framework that is known and understood and that has the support of the vast majority of citizens; and 3. Enforcement mechanisms (justice, police, and prison) that is effective, fair, equitable, and predictable.

However, the recent Law on Associations and Non-Governmental Organizations (LANGO) unilaterally passed by the Cambodian People’s Party (CPP) on July 2015 appear to undermine the freedom of civil society and the rule of law ideals expressed by Cambodia’s Prime Minister.

Art. 8 LANGO encapsulates the Cambodian government’s primary legislative intent to regulate NGOs

which ‘endanger the security, stability and public order or jeopardize national security, national unity, culture, traditions, and customs of Cambodian national society’.

The Ministry of Interior (MoI) has apparent discretionary powers to ‘remove’ NGOs deemed as a threat to ‘the security, stability and public order’ under Art. 36(3) LANGO. Art. 12 LANGO provides for rigorous bars to NGO entry. Applicants are required to obtain letters from various government department before a Memorandum of Understanding is granted. The MoI must approve it before an NGO can operate in Cambodia.

However, the International Center for Not-for-Profit Law (ICNL) has found that as of September 2015, administrative orders governing the procedures (prakas) have not yet been drafted. It is unclear how the prescribed procedures in LANGO will be put into practice This ambiguity appears to vest the MoI with even more discretionary power and warrants concerns to Cambodian rule of law.

Art. 36 LANGO suggests that LANGO is an instrument to ensure national security as it imposes criminal sanctions on NGOs who ‘conduct activities which endanger the national security or involves money laundering, terrorist financing or terrorist crimes, or other criminal offenses’. It is unpredictable how NGOs will be considered a threat to ‘the security, stability and public order’ and how the charges will be investigated accordingly. Also, it is unspecified

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Jessica Lau

whether informal associations such as university student groups and religious organisations will qualify as NGOs under LANGO. LANGO also appears to contravene the spirit of democracy as implied in the Cambodian Constitution. Art. 24 LANGO states that ’domestic non-governmental organizations, foreign non-governmental organizations, or foreign associations shall maintain their neutrality towards political parties in the Kingdom of Cambodia’.

This article may stifle the rights to freedom of expression stated in Art. 41 of the Cambodian Constitution and rights to the freedom to create associations in Art. 42. It is likely that LANGO is unconstitutional and may violate the International Covenant on Civil and Political Rights (ICCPR) to which Cambodia is a party.

According to ICNL, there are a total of 3,492 registered NGOs out of which 1,350 are active. LANGO may affect stakeholders in rural-urban development organisations and beneficiaries of NGO services that provide welfare provision and poverty relief.

LANGO’s alleged unconstitutionality will further chip away at the rule of law and may have knock-on effects on the Cambodian economy. The Cambodian government must recognise that NGOs do play a substantive role in the economy and civil society, in order to foster a lively democracy that it claims to be.

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INTERNATIONAL

Tag-team Regulation: Financial Institutions and Regulatory Agencies Alan Lee

I

n response to the 2008 financial crisis, financial regulation legislation around the world enacted legislations to prevent future systemic failures. This article introduces the notion that financial regulation has become excessive. By placing onerous requirements and restrictions on financial institutions (FIs), the functionality of the financial system becomes inhibited. This would create undesirable outcomes that could be widely felt. Instead, it would be preferable to adopt a framework that places emphasis on both FIs and the regulators.

The financial system In principle, regulation aims to protect the public from harm. It is clear that the financial services industry is one that requires regulation. Subjecting FIs to financial HKSLG · FALL 2015 · ISSUE 7

regulation is logical, as FIs play an important part in society. As evidenced by the failure of Lehman Brothers, Fannie Mae and Freddie Mac, a level of regulatory oversight is necessary to prevent another financial catastrophe. However, the objective of protecting the public must be balanced against the need for a financial system to function properly. FIs play an important role of being an intermediary between businesses and the general public.

Generally speaking, whether it is retail banking, investment banking or alternative asset managers, FIs operate by locating investors who are willing to lend money and connecting these investors with individuals who need capital. By facilitating this process, FIs help the economy function.

However, with the trend of in-

creasingly onerous regulation, FIs have been less able to carry out this task. For example, the Dodd-Frank Act is so expansive that it requires more than 60 million hours of paper work for compliance. These are work hours that could otherwise be used to create a more productive financial system. Moreover, new legislation has caused FIs to have less freedom in choosing the type of investments in which they can be participants. In the United States, the Volcker Rule generally prohibits banking entities from acquiring ownership or sponsoring in hedge funds and private equity funds.

From an economic perspective, such trends are undesirable because they lead to more expensive financial services and increased costs of business. This ultimately affects a country’s economic output.

INTERNATIONAL

an otherwise possible investment, do not exceed its benefits. Reducing the intensity of financial regulation is not a callous position that only gives regard to economic growth – systems that are too safe will see profitability suffer, staff being laid off, and tax receipts decline.

These are not fanciful problems: as a result of tackling increasing compliance costs, FIs are anticipating drops in profitability and massive staff lay-offs.

The regulator in the spotlight Given the consequences of overregulation, governments should reconsider its regulatory framework.

One possible method of mitigating the economic disadvantages of the current regulatory framework is for the FIs and regulators to share the responsibility of upholding financial stability. This would have the effect of optimising the allocation of regulatory responsibility.

Currently, legislations such as the US Dodd-Frank Act and the implementation of Basel III place the majority of the burden lies with the FIs. This may be in the form of capital adequacy ratios or restrictions on certain types of investment activities. However, this may not be the most economically efficient manner to regulate, as legislature is not a body with specialised knowledge. As evidenced by the problems plaguing FIs noted above, the current framework is not ideal. Instead, it may be preferable to draft legislation in a manner that confers greater power to the regulators and less restrictions on FIs. With their superior expertise and information, regulators are likely to be better positioned than the legislature in striking a balance between the needs to protect the public and to promote economic growth.

lators could avoid some of the economic inefficiencies caused by the current framework. For example, insurance companies do not bear the same level of risk as banking entities. However, some regulatory requirements apply based on the amount of assets controlled and do not take into account the specific risks that each type of FI faces. The result is that stringent regulations meant for the ‘too big to fail’ banks will apply equally to insurance companies. This over-regulation of insurance companies would unduly inhibit the financial system without effectively addressing any ‘real’ risk.

Adapting a framework that gives regulatory agencies more powers to devise regulations could resolve the inefficiencies because regulators could tailor their regulations based on the types of risk that a particular type of FI faces. This could reduce the economic inefficiencies resulting from the current framework while promoting a stable financial system.

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Conclusion It should not be mistaken that granting more powers to the regulators necessarily means that FIs would be free from all regulatory requirements. Certain provisions, such as capital adequacy ratios, are beneficial to the stability of the financial system because they mandate a certain level of financial health. However, promoting a stable financial system should be the responsibility of both the FIs and the regulators. Current financial regulation is excessively harsh on the financial system as a whole, and is not the ideal method towards financial recovery. Instead, laws should require the participation of both FIs and regulators in creating a safe financial system. Given the important role the financial services industry plays in the overall economy, the financial regulatory framework is one that requires careful consideration.

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INTERNATIONAL

Consumer Protection: Moving with the Times Charlotte Wong

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s the Consumer Rights Act (CRA) came into force on 1 October 2015, a modern and simple framework of consumer rights with strengthened protection of consumers’ interest is introduced in the United Kingdom.

The CRA aims to update and rectify the complexities of the existing rules in order to provide clarity to both the sellers and buyers. The CRA is divided into three parts, which respectively deal with: 1. Consumer contracts for goods, digital content and services; 2. Unfair terms; and 3. Miscellaneous provisions.

In Hong Kong, contracts for the sale of goods are mainly governed by the Sale of Goods Ordinance (Cap. 26) (SOGO) along with other enactments. SOGO is based on the English Sale of Goods Act 1893 and was last amended more than a decade ago in 1994. What can we learn from our English counterparts? Are there any areas that call for stronger statutory protection for consumers?

Digital content The introduction of a new regime to regulate the supply of digital content is one of the most significant changes under the new legislation. Under s. 2 CRA, digital content is defined as ‘data which are produced and supplied in digital form’. The definition is wide HKSLG · FALL 2015 · ISSUE 7

enough to cover all software, ebooks and music downloaded from online platforms. Implied undertakings as to quality, fitness, and any description given by the trader are inserted into every contract to supply digital content. In short, the consumers of digital content now enjoy the same degree of protection as those of general goods.

The coverage of SOGO for digital content, however, is narrower. In Peggy P. Liu v Alfa Com. Technology Ltd [2007] 1 HKLRD 528, the High Court, applying St Albans DC v International Computers Ltd [1996] 4 All ER 481, held that the definition of ‘goods’ under s. 2 SOGO only covers software applied in tangible disk. In other words, buyers of intangible digital content are not protected by the SOGO. This may be seen as a failure to respond to advancement in technology. In recent years, buying digital content online has undoubtedly become a trend because of its convenience. Most technology companies, such as Microsoft Corporation, Symantec Corporation, Electronic Arts Inc., offer online platforms that allow consumers to download software directly to their computers. Whilst the CRA illustrates an attempt by UK lawmakers to keep pace with the changing way in which goods are bought, the SOGO remains unsatisfactory in this regard.

Unfair terms

Tonny Yu

Under the CRA, a term will be deemed unfair if ‘contrary to the requirements of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer’ (s. 62(4) CRA).

Unfair terms in consumer contracts are unenforceable and may be severed from the rest of the contract. To provide practical guidance, the CRA incorporates from its predecessor a non-exhaustive list of terms which may be considered unfair and adds to this list three additional terms. The newly added terms have the effect of disallowing disproportionately excessive fees, disallowing trader to determine the subject matter of the contract after it has been concluded and the price after consumer is bound. However, a term can still be fair even though it is captured by the list as it is only indicative. Similarly, a term not included in this list can still be found unfair. In addition, it is presumed in the CRA that if a term is ambiguous and open to different interpretations, the meaning most favourable to consumer shall prevail.

Terms relating to the subject matter of a contract or price, also referred to as core terms, are exempted from the fairness requirement if two conditions are satisfied. First, core terms must be transparent in the sense that they are expressed in plain and intelligible language, and legible if in writing; second, core terms must be brought to the consumer’s attention such that the average consumer, being

INTERNATIONAL well-informed, observant and circumspect, would be aware of them.

Nevertheless, non-compliance with these requirements does not automatically render a core term unfair, rather it will subject the term to additional scrutiny.

In Hong Kong, SOGO and the Unconscionable Contracts Ordinance (Cap. 458) provide little protections against the encroachment on consumers’ rights by unfair terms. Neither of them defines unfair term, nor do they provide an indicative list of potentially unfair terms. Though the Unconscionable Contracts Ordinance lists several factors to be considered in determining unconscionableness of contract, they are far from satisfactory in providing any clear guidance in practice. Given the global trend of strengthening consumer protection, amendments to Hong Kong legislation regarding unfair terms in consumer contracts seem long overdue.

Remedies The CRA has gone one step forward in consumer protection by introducing several new remedies to further protect consumers’ rights.

For contracts of sale of goods, a layered approach to remedies is introduced (ss. 20-24 CRA). If goods fail to meet the standards specified in the contract, the consumer is entitled to reject the goods for a full refund within 30 days of delivery. Alternatively, the consumer can demand repair or replacement of the goods from the trader, which must be done within a reasonable time without causing significant inconvenience to the consumer.

If the problem persists after repair or replacement, the consumer can then elect to reject the goods for a refund or to keep the goods and claim an appropriate price reduction up to the full amount.

In contrast, remedies provided by SOGO are more restricted. Price

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reduction is not available, and it is unclear whether the trader has a duty to repair or replace nonconforming goods if the consumer so demands. In addition, although SOGO contains a remedy of rejecting nonconforming goods, the right must be exercised ‘within a reasonable time’. This loosely drafted time limit, compared with the 30-day period in the CRA, does not provide much certainty to both consumers and traders.

Conclusion By comparing the CRA with SOGO, it is apparent that the former is more sophisticated for its certainty, practicality and novelty in protecting consumer rights. The CRA can undoubtedly provide valuable guidance and reference for legislators in Hong Kong in the long awaited overhaul of SOGO and other consumer rights legislations.

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INTERNATIONAL

Remotely Piloted Drones: Self-Defence or Extrajudicial Killing?

Martin Hui

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hat are drones? Drones are the iconic military technology, which complement manned aircrafts in hazardous missions.

Because drones enable convenient air force mobility, various countries have started to integrate them into their military. However, the legal justification in favour of drones remain controversial.

In September 2015, the UK Parliament was informed that in an act of self-defence and following careful planning, a suspected British terrorist, was killed in a drone strike in Syria. Yet the legality of using drones to cross into Syria on the basis of ‘self-defence’ remains controversial.

Self-defence Pubic international law generally permits self-defence. Art. 51 of the HKSLG · FALL 2015 · ISSUE 7

Charter of the United Nations (the Charter) provides that ‘nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. In order to justify self-defence, the Caroline test must be met. First, there must be a necessity of self-defence, which is both instant and imminent. Second, there must be no choice of means and no moment for deliberation. Lastly, those asserting selfdefence must show that they did nothing unreasonable or excessive in accordance with the proportionality test. The necessity principle was first addressed in McCann and Others v The United Kingdom (1995) 21 EHRR 97, stating that the States should have exhausted other means at their disposal for anti-terrorism purposes before the use of lethal force. This is a stricter

and more compelling test of necessity to judge the legality of killing of the terrorist suspect. From the proportionality perspective, the force used has to be ‘no more than necessary’, which prevents undue invasions of the fundamental rights such as right to life. Likewise, the anticipated benefits must be proportionate to the expected detrimental effects.

The tension between individual rights and state interests Art. 2 of the European Convention on Human Rights (ECHR) recognises the right to life and operates as one of the most important provisions. It safeguards the right to life and sets out circumstances when deprivation of life may be justified – for instance, to protect any person from unlawful violence.

INTERNATIONAL Self-defence is a common justification for using reasonable force against an unjust threat, in both domestic and international criminal law. The Prime Minister of the United Kingdom, Mr. David Cameron justified the air strike on necessity. He stated that ‘we took this action because there was no alternative…there is no government we can work with. We have no military on the ground to detain those preparing plots. So we have no way of preventing this planned attacks on our countries without taking direct actions.’

Yet necessity alone is insufficient.

Although drone attacks can effectively eliminate all suspected terrorists, it falls short of international law standards if self-defence is to be the legal justification. Due weight must be accorded to the preservation of individual rights. The prevention and deterrence of crimes could be achieved through drone strikes but the elimination of criminal activities should not overlook the significance of rehabilitation particularly where suspected crimes do not always involve international terrorism. Furthermore, if the mere ‘suspicion’ of terrorist activity can justify self-defence, then States can justify the preservation of the majority by instigating any forms of attacks on suspected communities.

There are always practical measures available to States for counter-terrorism purposes before resorting to lethal forces. The US has taken measures to bring terrorists before justice by disrupting their operations and destroying their networks.

It includes working with their allies to identify, track, apprehend, prosecute, and punish them according to the rule of law. Understood in its proper context, the use of drones as a lethal force must be regarded as a last resort.

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In the recent UK drone strike, one victim was an adolescent who had featured in a prominent recruiting video of a terrorist organisation last year. However, this falls short of meeting the necessity and proportionality test. The UK should have examined whether the suspected terrorists have been actively involved in hostilities, or have merely expressed their point of view towards extreme militant groups without any evidence regarding their involvement of the planning of an attack.

countries in the world which are affluent to equip their army with unmanned aircrafts and advanced weapons. Thus, other countries or even the United Nations may not be able to challenge their actions.

While it may not be preferable for other countries to infringe the autonomy of a sovereign state, the United Nations does not even have a valid cause of action to take action against those States that are abusing the definition of self-defence and carrying out drones attack without legitimate grounds.

The way forward

To achieve a safer world, it is necessary to take further actions to combat terrorism. However, surgical drone strikes can not be the sole solution to the problem. Military actions with increasing brutality and destructibility are not a feasible solution in a long run. Instead, the States have to dig deeper and fix the root cause of terrorism. For example, poverty, failed states, religious extremist and lack or education.

Even though there are considerable disagreements as to the definite cause of terrorism, these factors they are obviously contributions to the preconditions of terrorism, providing fertile territory for terrorism to emerge.

In order to deal with the aforementioned tensions and prevent similar controversy from arising again, there are always solutions which could strike a better balance between ‘security’ and ‘liberty’. First the law should be updated; although there are various international agreements concerning human rights designed to combat international terrorism, informal political consensus on whether the sanctions conform to legality is still based on ambiguous test of necessity and proportionality. To tackle these issues, current rules and regulations have to keep up with the times.

Undoubtedly, the Caroline Test and the Charter are highly authoritative and persuasive and the legal principles referred to should be followed.

However, both of these came into effect in the nineteenth and twentieth century respectively. Thus, an updated international legal framework for operating unmanned aerial systems should be introduced to deal with the issues arisen in a more definite and specific way.

Introducing an accountability mechanism will be another solution. Most drone strikes are initiated by developed and powerful

That said, tackling all the aforementioned root causes still does not guarantee the end of terrorism.

But it will certainly be a huge step toward achieving a safer society.

Conclusion Although there may not be strong opposition from other countries or international organisations against Britain on its recent air strike, the UK should have given reasonable explanation to justify the legality of its action. Its failure to do so would render it as extrajudicial killing with no justifiable grounds.

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INTERNATIONAL

Orphan Drug Act: Patent Abuse on Both Sides of the Border Sean O’Reiley

In Smith, Kline & French v Attorney General of Canada [1986], 1 F.C. 274, the plaintiffs contended that the Canadian Parliament did not have the authority to limit the scope of their property rights. 11 years later in ICN Pharmaceuticals v Canada [1997] 1 F.C. 32, the plaintiffs challenged the PMPRB’s authority to lower the price of their medication. Both claims failed and were subsequently dismissed on appeal.

The world’s most expensive drug

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anada may lose its ability to control the price of foreign pharmaceuticals as a federal lawsuit is currently being filed against its Patented Medicines Prices Review Board (PMPRB) by the American drug manufacturer Alexion. This comes after the PMPRB’s allegations in February 2015 that Alexion’s pricing of their drug Soliris in Canada was excessive. The outcome will determine Canada’s ability to control the price of imported pharmaceuticals.

Soliris is currently the only treatment for the extremely rare disease Paroxysmal Nocturnal Hemoglobinuria (PNH). Soliris is one of the most expensive pharmaceutical product in the world: one year’s treatment can cost up to USD HKSLG · FALL 2015 · ISSUE 7

700,000 in Canada 409,500 in America.

and USD

Alexion’s claim The discrepancy between the American and Canadian price is the reason behind the PMPRB’s allegations. Pursuant to s. 85(1) (c) of the Canadian Patent Act, in considering whether the price of a drug is excessive the PMPRB will examine the price in other countries. Alexion asserts that the discrepancy was caused by exchange rate fluctuations. However, their main argument is that the authority of the PMRPB infringes on the jurisdiction of Canada’s provincial insurers.

Unsurprisingly this is not the first time a pharmaceutical company has taken the PMPRB to court.

There are some merits to Alexion’s claim as coverage of drugs varies between provinces. The PMPRB will likely argue that even though provinces have the jurisdiction over prices, prices are rarely exorbitant. Often the largest provincial insurer is actually the government, who tries to subsidise, rather than profit off pharmaceuticals. Yet even if this gets to a hearing (although most pricing disputes do not), it will unlikely be in Alexion’s favour.

The orphan drug explosion Even if Alexion loses in Canada, Soliris is still unaffordable to most patients, especially in America, which has some of the world’s highest drug prices. This is because pharmaceuticals research is costly, and for rare diseases like PNH there are not enough patients to incentivise development. Drugs for rare diseases are called orphan drugs and are regulated under the Orphan Drug Act (ODA) in the United States.

INTERNATIONAL The ODA offers numerous benefits to developers of orphan drugs.

Typically, pharmaceuticals have 17 years of patent protection in America. But 10 to 12 years can elapse during the approval process, leaving little time for companies to regain their investment . However, the approval for patentable orphan drugs is substantially quicker. Not only that, market exclusivity for orphan drugs is heavily protected.

Competitors are only allowed into the market if their drugs are more effective, safer, or make a large contribution to patient care. Lower cost is not considered a contribution to patient care. Because of the extensive protection the ODA offers, pharmaceutical companies are easily recouping their investment and are charging exorbitant prices.

Table 1: Net Profit of Orphan Drugs in 1991 Drug Name

Manufacturer

Humatrope Protropin Epogen

Eli Lilly Genentech Amgen

passed, and even though some of them commenced development pre-ODA, the firms easily made profit after only a few years. Sadly, the drugs in Table 1 are not outliers. Orphan drugs are massively profitable. For example Rituxan, manufactured by Roche, made USD 7.133 billion in sales in 2012.

Stifled progress The ODA has come under scrutiny before. The primary sponsor of the ODA has said even that ‘The [pharmaceutical] industry has taken advantage of the incentives to charge excessive profits and reap windfalls far in excess of their investment.’ Amendments have been attempted multiple times but most never went to vote, and those that passed were personally vetoed by George Bush.

R&D Costs Cumulative (Million Sales (Mil$USD) lion $USD) 16 150 45 580 150 893

The drugs in Table 1 entered the market shortly after the ODA was

Net Profit (Mil-lion $USD) 134 535 743

The same argument is wheeled out every time: curbing the ODA’s

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patent exclusivity would lower incentives to research orphan drugs.

However, what is the point, if average households cannot afford it, or exorbitant pricing balloons government healthcare spending? The evidence above shows two important things. Firstly, the excuse that pharmaceutical companies will not make enough money is untrue. Secondly and bizarrely, even though the government has to foot the bill when it provides these drugs, any significant amendments to curb excessive windfalls have mysteriously failed to materialise.

Are we out of options?

So what, if anything can be done?

Clearly the same things preventing previous amendments from passing will undoubtedly prevent any further legislative change. Ideally a mechanism to redistribute these excessive windfalls back into government research could be added, as most research for Soliris was done by university researchers working in publicly funded labs , but without significant public support this is idealistic at best. As it currently stands, development of orphan drugs is subsidised and profits are corporatised. Without the public support to spur Congress into action, it will remain that way.

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INTERNATIONAL

It Is Not Whether But How Same Sex Marriage Is Legalised Noel Chan

Introduction

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nder the doctrine of separation of powers, judicial review is to be tempered by judicial restraint in order to preserve the functions of the executive and legislative branches. However, on 26 June 2015, same-sex marriage was legalised throughout the United States by the Supreme Court’s ruling in Obergefell v Hodges 576 U.S. (2015). In Justice Scalia’s dissenting judgment, he criticised the decision as ‘a naked judicial claim to super-legislative power’. The extent to which the Supreme Court assumed law-making functions in allowing same-sex marriage provokes thoughtful discussion. It is also

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meaningful to reflect on whether Hong Kong courts will interfere with the ‘one man and one woman’ rule in the same way.

The decision The petitioners were individuals from various States claiming for their same-sex marriages to be recognised for various reasons, ranging from the right to be listed as a surviving spouse and the need to clarify legal rights over adoption of children. The Supreme Court ruled that the Fourteenth Amendment of the United States Constitution (the Constitution) protected the right to marry for same-sex couples pursuant to the Due Process Clause

and Equal Protection Clause. The relevant clauses guarantee a person’s liberties and equality before the law. Drawing from precedents that, on the basis of a person’s liberties, the court overturned a ban on interracial marriage; upheld the right for married couples to use contraception; associated marriage with family life; and observed the State benefits attached to marriage, the right to marry was held to be a fundamental right protected under the Constitution. Owing to the interlocking nature of liberties and equality, homosexual couples were entitled to the right to marry as much as heterosexual couples. This decision meant that same-sex marriage became legal nation-wide.

INTERNATIONAL Power justified on duties The exercise of judicial power was justified on the Court’s judicial duties towards upholding the Constitution and protecting minorities.

Firstly, the Court considered that it had a duty to the petitioners to ‘address their claims and answer their questions’. In particular, the petitioners’ stories were ‘showing a sense of urgency’ for same-sex marriage to be permitted. Thus, it was justified that the aggrieved petitioners need not wait for democratic legislation on same-sex marriage to assert an individual’s fundamental right. Secondly, it was solely the Court’s function to interpret the Constitution in order to identify and protect fundamental rights.

This duty required ‘reasoned judgment in identifying interests of the person so fundamental to which the State must accord respect’. The Court made clear that there was no specific formula for this exercise. Instead, the Court can consider an array of factors in arriving at a decision based on ‘principled reasoning and neutral discussion’.

On the footing of these duties, the Court specifically acknowledged that it was appropriate to rule that the Constitution directly required the states to licence and recognise same-sex marriages even without the benefit of legislation.

Giving weight to social consensus?

Legislation was contemplated by the Constitution to be the proper forum for changing the legal status of same-sex marriage. While the Court acknowledged the desirability of leaving the issue to democratic discourse, it considered legislation to be unnecessary due to the already sufficiently ‘widespread deliberation’ on the matter. The Court drew attention to the fact that there have been ‘referenda, legislative debates and grass

root campaigns, as well as countless studies, papers and books and other popular and scholarly writings’. Extensive litigation in both state and federal courts was also emphasised.

Overall, this indicated ‘general, societal discussion’ and understanding of same-sex marriage which was reflected in the supporting arguments presented before the Court.

In effect, the Court appears to have given substantial weight to social and policy arguments in favour of same-sex marriage based on an observation that there was a convergence of opinion towards same-sex marriage in the United States community.

Dissenting opinions Indeed, dissenting judgments to the decision all concentrated on attacking the means by which the Supreme Court had ruled in favour of same-sex marriage rather than the fact that it was now legal. Chief Justice Robert specifically drew a distinction between policy and legal arguments for extending marriage to same-sex couples. He noted that ‘the Court is not a legislature [and] whether same-sex marriage is of a good idea is of no concern to judges’. While policy arguments may be compelling, judges declare on what the law is, not what it should be. Justice Scalia concurred but also separately warned of ‘the Court’s threat to American democracy’. He stated that ‘it is not of special importance what the law says about marriage. It is, however, of overwhelming importance who it is that rules me’.

Can it happen in Hong Kong?

A case in Hong Kong that came close on reforming the ‘one man and one woman’ rule is W v Registrar of Marriages (2013) 16 HKCFAR 112. The Court of Final Appeal (the CFA) made clear its restraint

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from striking down Hong Kong’s marriage legislation for unconstitutionality, though generously accepting that, within the bounds of that rule, a transgender woman had the right to marry her male spouse.

The CFA elected to read in the relevant provisions governing marriage as ‘a voluntary union between one man and one woman’ to include a transgender woman under the definition of ‘woman’. While this decision arguably widened the ambit of legislation beyond the meaning intended by drafters, Bohkary PJ essentially reaffirmed that the constitutional right to marry was to be interpreted on the basis that it is between hetereosexual couples.

The Court also gave deference to legislature by suspending its remedial interpretation for 12 months so that the latter can provide legislative guidance on a more elaborate test for a transgender woman to qualify for marriage.

However, it can confidently be said that Hong Kong Courts are unlikely to exercise the same judicial activism on the issue of samesex marriage as their United States counterpart because Hong Kong does not have a robust judicial review system like the United States.

Any legalisation of the matter would most likely be through the legislative process.

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INTERNATIONAL

Rethinking America’s Cuban Immigration Policy Ellen Kar

Introduction

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he reopening of embassies in Washington D.C. and Havana on 20 July 2015 symbolised the official restoration of the formal diplomatic relationship and the start of ‘The Cuban Thaw’. However, should the privileges that Cuban refugees have long enjoyed under the Cuban Adjustment Act and its amendments be revised or even repealed?

Background During the Cold War period, a series of political turmoil such as Bay of Pigs Invasion and the Cuban Missile Crisis deeply severed the relationship between US and Cuba. As a strategy to topple the communist regime in Cuba, President John F. Kennedy imposed HKSLG · FALL 2015 · ISSUE 7

an economic embargo on Cuba.

Shortly after this, legislators proposed the Cuban Adjustment Act (CAA) to aid Cuban political refugees to flee Cuba.

Congress passed the CAA in 1966.

This allowed any Cuban national to gain US permanent residency in two years. Under the CAA, all Cubans who arrive in the US are presumed to be political refugees.

S. 8 of the Immigration and National Act Amendment in 1976 shortened the parole to one year. In 1995, the CAA adopted the ‘wetfeet, dry feet’ policy, under which only the Cuban refugees who made it on US soil would be granted permanent residency.

Normalisation and its impact The principal rationale behind the

normalisation was to ‘cut loose on the shackles of the past and pivot towards a policy of engagement’ according to President Obama in a speech he addressed on 17 December 2014. One of the key issues involved was the existence of the CAA. The CAA has been cristicised as a dated policy since the announcement of the normalisation. In close proximity to Cuba, a large number of Cuban-Americans reside in Miami. Soon after it was announced, the Miami-Dade County Commission unanimously voted to petition Congress to revise the Act. Many Cuban refugees who gained permanent residency in US would travel back and forth to Cuba. In fact, many are not genuine political refugees. Instead, they are economic refugees and some even see the CAA as a gateway to criminal activities.

INTERNATIONAL Revise or repeal?

The number of Cuban refugees has risen since the announcement of the normalisation because many feared that their special privileges would end . The call for revision of this Cold War relic is crucial for the progression of the normalisation. At minimum, the revision of the law should close the revolving door that allows Cuban refugees to travel back and forth while retaining their permanent residency in US until they have fully become US citizens. The revised law should protect genuine political refugees from Cuba.

On the other hand, a hardline alternative would be to repeal the CAA completely. The underlying justification would be that the CAA was a product of the Cold War but those days were long gone, and under the current normalisation, Cuba no longer imposes im-

mediate threat to the US . Yet, few still argue that the worrisome Cuban human right situation justifies the CAA . While the diplomatic uncertainty on communist Cuba has diminished, the discussion is now largely translated into domestic concerns. With the increasing number of Cuban immigrants in Florida, they could easily affect outcomes of domestic politics and public policy issues.

In the 2000 presidential election, Florida became the pivotal state in the election. It is believed that the outcome of the election was influenced by the Gonzalez v Reno case that took place earlier . There was a huge backlash on the Gonzalez case which a six-year old Cuban boy Elian Gonzalez who was a lone survivor of an unfortunate illegal immigration journey. After several custody court battles, he was ordered in Miami to be sent back to Cuba. The result angered the

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Cuban American community and distrusted the Democratic Party.

Hepperman suggests this eventually led to the recount of votes in Florida and the famous Bush v Gore case. By repealing the CAA it means that the privilege that Cuban immigrants have enjoyed as a voting bloc would no longer be in effect. Differential treatment should end and the standard of exchange between US and Cuba could be of higher quality.

Conclusion Under the emerging normalisation of the US-Cuba relationship, the Cuban Adjustment Act is outdated and it should reflect the situation of 2015, not 1966. The assessment of whether to have it revised or repealed would be a challenge for the administration. A modern approach on America’s Cuban immigration policy should be addressed with openness and impartiality.

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INTERNATIONAL

Freedom of Panorama in the European Union Phoebe Yeung

What is Freedom of Panorama?

T

he ‘Freedom of Panorama’ (FoP) is the right to take photographs of public spaces and use such photographs for personal or commercial purposes. It is commonly regarded as an exception to copyright protection.

Directive 2001/29/EC is a direction of the European Union (EU) enacted with regard to the World Intellectual Property Organisation Copyright Treaty (WIPOCT). Art. 5(3)(h) (WIPOCT) provides for the possibility of member States having a freedom of panorama clause in their domestic copyright laws, but does not make it a mandatory requirement.

Application of FoP in EU The optional nature of this copyright exception has led to fragmentation of national copyright laws among member States. FoP is acknowledged in a large majority of member States. It is restricted, however, in countries like France and Italy. For instance, French copyright restrictions make it illegal to publish pictures of the illumination of the Eiffel Tower without proper authorisation.

In June 2015, it has been proposed in the European Parliament that the commercial use of photographs and films of permanently located works should always require the authorisation of the rightholder. If this proposal is approved, FoP may be taken away from countries that have it now. Many spoke out and HKSLG · FALL 2015 · ISSUE 7

called for the rejection of it. On 9 July 2015, an overwhelming majority in the Parliament voted against this proposal with 445 votes to 65.

This decision led to preservation of status quo but stirred up a debate on the application of FoP. FoP should not be restricted Restriction of FoP can prevent big companies such as Facebook, or Wikipedia, from escaping copyrights payment. Without restriction, they can exploit works for commercial use and not just for educational purposes without compensating the authors. Thus, EU can protect them with financial compensation. It is true that laws should reward the authors and encourage creation. However, such protection should not hamper the use of information available in the public domain.

Indeed, restriction of FoP may limit the desire of people to share their experiences and thoughts, thus limiting the freedom of expression.

The freedom of expression should be guaranteed, especially when it comes to public-space art. According to Thomas Seymat, ‘part of the essence of public sculpture and public architecture is the dialogue between the work and the

surroundings and the people who experience it, and that dialogue is so much stronger when anyone can publish what they want.’

In practice, the restriction of FoP may lead to difficulties in law enforcement. The distinction between commercial and non-commercial itself is complicated. There is a ‘grey area’ that could affect personal images posted on websites generating revenue.

Restriction of FoP may also be catastrophic for public access to knowledge and culture. A lot of online collaborative encyclopaedias, which try to make knowledge accessible to all, would be put at risk.

For instance, thousands of images on Wikipedia may need to be removed due to copyright restrictions.

Conclusion FoP is of immense value to our freedom of expression and should not be restricted. Instead, it should be extended EU-wide to harmonise copyright law within EU for legal clarity and user-friendliness. Hopefully, this can also ensure the completion of a single internal market in EU and encourage cross-border cultural exchange through the Internet.

ADDTIONAL THANKS

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ADDITIONAL THANKS (in alphabetical order)

LEGAL COMMUNITY Allen & Overy Chinese University of Hong Kong, Faculty of Law Clifford Chance LLP Denis Chang’s Chambers Freshfields Bruckhaus Deringer Parkside Chambers Plowman Chambers Skadden, Arps, Slate, Meagher & Flom LLP INDIVIDUALS Ms. Jay Wong Ms. Jeannie Kow Ms. Joyce Wong Prof. Michael Lower Mr. Justice Robert Tang PJ Prof. Stuart Hargreaves LIBRARIES Court of Final Appeal Library High Court Library Legal Resources Centre

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lawyers who get it get it / making an making an impact mpact / culture culture of inclusion nclusion / lawyers lawyers who get get it / making making an impact mpact / culture culture of inclusion nclusion / lawyers

making an impact

SkaDDEn, aRpS, SLatE, mEaghER & fLom

ifyouthink.com

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Hong Kong Student Law Gazette Contact us for more information The CUHK Graduate Law Centre, 2/F, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong Website: http://hongkongstudentlawgazette.com