Final Appeal Research Articles

When Socialist Chinese Law Meets Common Law Interpretation: Mandatory Sentencing and Mitigation Under the Hong Kong National Security Law

Abstract In HKSAR v Lui Sai Yu [2023] HKCFA 26, the Hong Kong Court of Final Appeal (CFA) delivered its first judgment on the mandatory sentencing regime under the newly introduced National Security Law (NSL). Adopting a common law approach to interpreting the NSL, the CFA held that mitigating factors not listed in the NSL cannot bring about a sentence below the minimum prescribed by the relevant provision. In this article, we propose an alternative approach to interpreting the NSL. We argue that, contrary to the CFA’s rejection of any reference to Mainland Chinese laws in constructing the NSL, both a common law purposive approach and the principle of ‘convergence, compatibility and complementarity’—one of the working principles in the enactment of NSL—would support such reference. The implications of our proposed approach would be to (i) recognize that the sui generis nature of the NSL, being a Chinese national law applied in its Special Administrative Region of Hong Kong, necessitates the consideration of relevant Chinese legal norms; and (ii) allow for a broader range of mitigating factors—those recognized by both Hong Kong common law and Mainland Chinese law—to be applied to the minimum sentencing regime in the interest of fairer and more principled outcomes for defendants.

The temptation of Occam’s Razor: jurisdiction, admissibility and party autonomy

Abstract Since the implementation of the UNCITRAL Model Law on International Commercial Arbitration in 1985, its jurisprudence has been developed in a broad array of aspects amongst which is the distinction between jurisdiction and admissibility. It has been said that the distinction is a useful tool in adjudicating the issue of whether an arbitral award should be set aside by a domestic court—but is it necessarily so? In C v D (2023) 26 HKCFAR 216, the Hong Kong Court of Final Appeal had the opportunity to revisit the usefulness of the distinction. Given that the Court was divided on the issue, C v D not only provides two lines of thought for the international arbitration community to reflect on the distinction between jurisdiction and admissibility but also provides a reference for Model Law jurisdictions in deciding future cases.

Is There a Right to Newsgathering in Hong Kong? Putting the CFA Judgment of Choy Yuk Ling in Context

In Hong Kong, the Court of Final Appeal in HKSAR v Choy Yuk Ling (CFA 2023) quashed the convictions of a journalist who was accused of knowingly making false statements in her search requests of a government-maintained vehicles register containing personal data crucial to newsgathering. The Court held that the relevant search purposes should not be narrowly construed to exclude bona fide journalism; regard has to be given to freedom of speech and of the press; and data protection law permits disclosures of personal data in the public interest for news activity purposes. However, this decision was soon overturned by the Government’s new measures which in effect prevent any search of the register for journalistic purposes. In early 2024, the enactment of the Safeguarding National Security Ordinance by the Government has further eroded the right to newsgathering of Hong Kong journalists. Keywords: Hong Kong; Court of Final Appeal; newsgathering; freedom of speech and of the press; protection of personal data; Safeguarding National Security Ordinance 2024.

Women's rights under the Small House Policy in Hong Kong

AbstractThis article investigates how the legislature and courts in Hong Kong have been struggling to tackle the sex discrimination created by the Small House Policy (SHP). Initially introduced in 1972, the SHP provides every male indigenous villager in the New Territories with a once‐in‐a‐lifetime housing grant, thereby excluding women from this benefit. Despite its discrimination against women, the SHP was still exempted from the New Territories Land (Exemption) Ordinance in 1994 and the Sex Discrimination Ordinance in 1995. In 2019, the judicial review of Kwok Cheuk Kin and Lui Chi Hang v The Director of Land declared that part of the SHP was unconstitutional. Still, this decision was overturned in the Court of Appeal and the Court of Final Appeal, which ruled that the SHP was constitutional in its entirety. This article examines the historical context of the SHP, discusses how the court has been interpreting and defining the SHP and, more importantly, investigates how British's indirect rule created a hostile legal environment for women and further relegated them to the groups of ‘double‐ colonised’ and ‘triple‐colonised’.

Beyond Privacy: The Need for a Broader Understanding of Marriage in the Jurisprudence of the ECtHR and the Hong Kong Court of Final Appeal

Beyond Privacy: The Need for a Broader Understanding of Marriage in the Jurisprudence of the ECtHR and the Hong Kong Court of Final Appeal

Rethinking Gender Recognition in Hong Kong and the Way Forward

This article considers Hong Kong’s (“HK”) current approach in requiring trans to undergo full sex-reassignment surgery (“SRS”) before they can change their gender indicated on their Hong Kong identity cards. Through reflecting upon international and comparative case law, this article first examines how HK’s current approach confers limited protection towards trans’ fundamental rights as against foreign jurisdictions. This article then examines whether the United Kingdom’s (“UK”) Gender Recognition Act 2004 (“GRA”), which was described as a “compelling” model by the Hong Kong Court of Final Appeal, confers a higher degree of protection towards trans people. This article concludes by advocating for the elimination of the full SRS requirement as a prerequisite for gender recognition in HK.

Communicating Justice: Cambodian Press Coverage of the eccc’s Final Judgment

Abstract This article explores Khmer-language media reporting of the final appeal judgment at the Extraordinary Chambers in the Courts of Cambodia (Case 002/02). Media reports are interesting for two reasons. First, as a source of opinions expressed in Cambodia’s official language (Khmer), which often remain beyond purview of international observers. Second, as one of the few sources of information about the eccc available to the Cambodian public now that official Court outreach has largely ceased. Yet, free media is significantly curtailed in Cambodia, and reporting on the eccc is likely to be shaped by what is politically safe to print, as well as what is deemed publicly interesting. Against this backdrop this article explores: the press’s tendency to downplay Cambodian political interference in the eccc proceedings; its (mis)representation of the eccc’s genocide findings; its reporting on the prosecution of sexual and gender-based crimes; and its use of ‘justice for victims’ rhetoric.

From liberal to conservative? The role of Hong Kong Court of final appeal in safeguarding fundamental rights under China's One Country Two Systems policy

ABSTRACT This paper explores Hong Kong Court of Final Appeal's role in protecting fundamental rights under China's One Country Two Systems practice. It starts by giving an account of the constitutional and legal framework for Hong Kong's judicial protection of human rights. It examines the Court's efforts in obtaining constitutional jurisdiction, employing generous interpretation approach to rights guarantees, reforming standards such as proportionality and reasonableness for scrutinising rights restrictions, and broadening reference inputs by comparative approach and amicus curiae for interpretation of rights provisions. It indicates that through these ways the CFA has developed freedom-friendly common law constitutionalism and formed judicial preferences in favour of personal liberty. It advocates that the so-called conservative performance of the CFA on rights issues in national security cases may be its efforts to secure judicial independence and the common law system in a changing political climate. The article posits that due to the CFA's strong foundation in judicial protection of human rights, and its recent efforts to incorporate national security law into common law, it is well-positioned to play a crucial role in preserving the way of life for Hong Kong residents as China's Hong Kong policy enters a new era.

The 2023 Veblen-Commons Award Recipient: Jon D. Wisman: Thorstein Veblen, the Meaning of Work, and its Humanization

Thorstein Veblen gave special attention to work. He claimed that an instinct of workmanship “is present in all men, and asserts itself even under very adverse circumstances … [It] is the court of final appeal in any question of economic truth or adequacy.” Although many scholars have examined Veblen’s claim, this article differs by examining his conception of work in light of findings from anthropology, evolutionary psychology, and happiness research. The questions explored are: Why and how did Veblen understand work as instinctual and did his understanding conform to Charles Darwin’s concept of instincts? Is it an instinct that evolved to be pleasurable or to gain respect and status to motivate provisioning? If evidence supports the claim that work did indeed evolve to be pleasurable, and today much of it is not, then its restructuring should be a top social priority. Although Veblen’s understanding of work provides inadequate guidance as to how it should be restructured, he was pathbreaking in insisting that our understanding of this question, and of human behavior and society more generally, must be grounded in the evolutionary biology launched by Darwin. Accordingly, a second aim of this article is to offer support for Veblen’s attempt to do so.

Optimization study of palm jaggery and palm candy - production and process

An effort was made to study and optimize the processes involved in producing palmyrah palm jaggery and candy by tapping into the inflorescence of the palm tree using lime-laced collection pots and neera (containing palm sap, cane sugar, and water), respectively. In the case of palm candy, lime was added during the boiling process. The process parameters, namely, lime concentration, temperature, and heating time, were investigated based on the samples' sensory qualities (9-point hedonic scale). The optimized solid palm jaggery required 2% lime, a processing temperature of 120 °C, and a processing time of 170 min. Similarly, upon carrying out identical analysis for palm candy, it was determined that the best combination suited for its preparation was using 0.4% lime, a processing temperature of 110 °C, and 150 min. The relationship between the three variables and the final product's sensory appeal was also investigated.The change in the mineral and total phenolic content of the samples with changes in the lime concentration, temperature, and heating time was also analyzed. The mineral and total phenolic content decreased progressively with increasing temperature and heating time. The palm jaggery produced after optimization has an energy value of 351.68 Kcal/100 g of sample. It has calcium, potassium, and magnesium content of 978.1 mg, 0.994 mg, and 0.078 mg per 100 g sample. The palm jaggery and palm candy were found to comply with the FSSAI standards.

The Law of Attraction: How Similarity Between Judges and Lawyers Helps Win Cases in the Hong Kong Court of Final Appeal

The Law of Attraction: How Similarity Between Judges and Lawyers Helps Win Cases in the Hong Kong Court of Final Appeal

Reflections on the Roles of Apex and Intermediate Courts in New Zealand

The Supreme Court of New Zealand replaced the Privy Council as New Zealand’s final appeal court in 2004. Appeals to the Privy Council in the general civil jurisdiction lay as of right, but all appeals to the Supreme Court were to be by leave. The legislature chose not to change appellate structures and pathways which had long been designed to limit the number of appeals by leave. Rather, it was hoped that the Supreme Court’s broader jurisdiction and accessible location would allow it to meet its objectives as a final appellate court.
 The Supreme Court has done much to develop law for New Zealand conditions. But the number and quality of leave applications constrain its substantive output, which has apparently stabilized at a level substantially lower than was predicted in 2004. The underlying causes can be located in appellate structures and pathways which constrain demand and also affect the Court of Appeal.
 This paper examines those constraints and the Supreme Court’s attempts to address them. It identifies consequences for the distribution of law development and supervision of precedent as between the Supreme Court and Court of Appeal. The paper is a call for dialogue rather than a prescription for reform, but it does suggest that consideration should be given to adjusting pathways to improve the range and quality of work decided by panels of three and five judges. It argues that courts in an appellate hierarchy must pursue a collaborative approach if law is to be developed in a reasonably timely and cost-effective way in the common law case-by-case tradition, and it suggests that is best done through appellate restraint and conservative application of the rules of precedent.
 Keywords: appellate courts; distribution of responsibility for precedent; appeal pathways and leave criteria.

Bridgestone v Panama: Denial of Justice in a Trade Mark Dispute and the Locus Standi of a Licensee in International Investment Arbitration

This is the first publicly available arbitral award rendered by an ICSID tribunal addressing whether a judgment arising out of a dispute relating to trade marks constitutes a denial of justice. At issue is a Supreme Court decision holding the Claimants liable for having unsuccessfully opposed the registration of a competitor’s trade mark.4 The dispute is best understood against the backdrop of an international competition between two international tyre makers, the Chinese entity, the Luque Group on the one hand, and the Japanese entity the Bridgestone Group (‘BSJ’) on the other. Both companies manufacture and sell tyres under marks with the suffix ‘STONE’. When Muresa Intertrade S.A. (‘Muresa’), a subsidiary of the Chinese entity, applied in 2002 to register the mark ‘RIVERSTONE’ for tyres in Panama, the Japanese rival BSJ and its US subsidiary BSLS objected to the registration by claiming likelihood of confusion.5 BSLS are the holders of the registered Panamanian marks ‘BRIDGESTONE’ and ‘FIRESTONE’. The First Instance Court found the trade mark opposition without legal merit and the Bridgestone entities withdrew their appeal on 5 September 2006.6 Subsequently, the distributors of the RIVERSTONE tyres, Muresa and Tire Group of Factories Ltd. Inc. (TGFL), commenced tort proceedings against BSJ and BSLS. They argued that the trade mark opposition was wrong and had caused them to cease the sales of RIVERSTONE tyres out of fear that the inventory would be seized if the opposition succeeded.7 Muresa and TGFL alleged that this cease resulted in US$5 million losses. Their claim was initially dismissed at first instance and later by the Panamanian Court of Appeal. But, on a subsequent final appeal, the decision in favour of the Bridgestone entities was reversed by the Panamanian Supreme Court in its judgment of 2014.8 The Supreme Court found that the Bridgestone entities had initiated the opposition with the intent of harming their tyre rival. Thus, the Supreme Court held the Bridgestone entities liable for damages pursuant to article 217 of the Panamanian Judicial Code for reckless conduct in judicial proceedings. The Bridgestone entities were ordered to pay the Luque Group companies US$5 million in losses and US$431,000 in attorneys’ fees.9

An expanded core of trusteeship or non-derogable residual obligation? A critical evaluation of pro-beneficiary approaches towards anti-Bartlett clauses after Zhang Hong Li v DBS Bank [2019] HKCFA 45

Abstract Anti-Bartlett clauses are commonly incorporated into trust deeds to enable settlors to freely exercise control and management over the trust company, while relieving trustees of any management or supervisory duties in that regard. These clauses are eminently sensible and should be given their literal effect insofar as they do not offend the irreducible core of trust duties. After the Hong Kong Court of Final Appeal reaffirmed this contractarian position in Zhang Hong Li v DBS Bank (Hong Kong) Ltd [2019] HKCFA 45, experts and scholars have recently revived efforts to narrow the scope of anti-Bartlett clauses for beneficiary protection. Their suggestions include the introduction of a non-derogable residual duty and/or an expanded core of trust duties to supervise the trust company’s affairs even in light of the anti-Bartlett clauses. This article submits that there is limited scope for these proposed developments, chiefly because the scope of these suggested duties are incompatible with other trust law concepts and defined without sufficient certainty.

The Criminal Liability of Corrections Officers in German Prisons: The Landmark Decision of the Federal Court of Justice from November 28, 2019 (2 StR 557/18)

AbstractWithin the criminal justice system, there is always a balancing act between two conflicting tenets: incarcerating the prisoners as a preventive measure, on the one hand, and, on the other, aiming to rehabilitate them. Without a proper transition, it is possible that prisoners will reoffend upon release. German legislation allows corrections officers to grant relaxed terms of imprisonment to prisoners who have proved themselves suitable. However, on June 7, 2018, corrections officers were essentially deprived of this power when the Regional Court of Limburg convicted two corrections officers of negligent killing after a prisoner, to whom they had granted relaxed terms of imprisonment, killed someone during one of his periods of release. In the immediate wake of this controversial judgment, corrections officers throughout Germany were seemingly left with two options: either to remain conscientious and attempt to rehabilitate the prisoners with the underlying risk of being subject to prosecution themselves, or to ensure their own “safety”, thereby jeopardizing prisoners’ crime-free futures. This article provides an overview regarding negligently committed offenses under German law, analyzes what led the trial court to this radical decision, and assesses why the final appeal court overruled the Regional Court’s decision.

Service Out and Tort Gateway in the Hong Kong Court of Final Appeal

Service Out and Tort Gateway in the Hong Kong Court of Final Appeal

A study on doctrine of limiting the grounds for final appeal - focus on 2017do16593-1 Decision delivered by the Supreme Court of Korea on March 21, 2019 -

심급제도는 본래 사법에 의한 권리보호를 위하여 한정되어 있는 법발견 자원을 합리적으로 분배하는 문제인 동시에 재판의 적정과 신속이라는 서로 상반되는 두 가지의 요청을 어떻게 조화시키느냐 하는 문제에 관한 것이므로 심급제도를 어떻게 구성하고 운영하는가에 대한 답변은 간단하지 않다. 더욱이 최고법원인 대법원의 바람직한 모습이 어떠해야 하는지는 어려운 문제이다. 최근 대법원은 내부적으로나 외부적으로 충분한 합의점을 도출하지 못한 상태에서 상고법원 도입을 시도하는 과정에서 불거진 문제로 큰 시련을 겪었고 그 과정에서 드러난 문제점은 여전히 해결되지 못한 채 남아 있다. 다시 상고제도 개선을 논의하는 것은 이제 더 어렵게 되어 버렸다. 이러한 상황에서 2019. 3. 21. 선고된 대법원 2017도16593-1 판결은 법원이 50년 이상 별다른 의문을 가지지 않은 채 어쩌면 당연하다고 여겨왔던 이른바 ‘상고이유 제한 법리’의 근거가 무엇이고, 과연 여전히 타당한가에 대한 물음과 답변을 담고 있다. 즉, 형사소송법 제379조와 제384조에서는 항소심의 심판대상이 된 것만을 상고이유로 삼을 수 있도록 명시적으로 제한하고 있지는 않지만, 항소이유서에 포함된 사유만 원칙적으로 항소심의 심판대상이 되고, 예외적으로 직권판단을 통해 심리한 경우에는 항소심의 심판대상이 될 수 있다. 또한 상고심은 피고사건 자체가 아니라 항소심판결 자체를 심판대상으로 삼는 사후심의 속성을 가진다는 점에서 상고이유를 항소심의 심판대상과 연계하여 제한하는 상소이유 제한 법리가 도출되는 것이다. 한편 형사소송법 제384조 후문은 상고이유서에 포함되지 않은 사유에 대해서도 일정한 경우에는 상고심이 직권으로 심판할 수 있도록 상고심에 직권심판의 권한을 부여하고 있다. 이는 상고심의 최종심으로서의 기능을 고려하여 현저히 정의에 반하는 경우를 구제하기 위한 장치로 기능하고 있다. 이처럼 상고이유 제한 법리의 법률적 근거와 타당성을 인정할 수 있다. 형사소송에서는 상고이유를 제한하고 이에 대한 심사를 엄격하게 하며 항소심의 심판대상이 되지 않은 사유는 배제함과 동시에 필요한 경우 직권심판권을 발동함으로써 우리 대법원은 최고법원으로서의 법령 해석 · 적용의 통일 기능과 피고인 권리구제 사이에서 나름의 균형점을 찾고 있다고 평가할 수 있다.

Lower Instance National Courts and Tribunals in Member States and Their Judicial Dialogue with the Court of Justice of the European Union

The vast majority of cases that are submitted to the Court of Justice of the European Union (the Court) through the preliminary reference procedure that is contained in Article 267 TFEU come from lower instance national courts and tribunals in EU Member States. As a result, it is not always appellate courts, or higher instance national courts and tribunals, such as courts of final appeal, which make orders for reference. Judicial dialogue between national courts and the Court through this Article 267 TFEU procedure is notable for its particular quality of it being open to receiving orders for reference, for an interpretation of EU law from national courts and tribunals – of any instance – from first instance, to final instance. But can this judicial dialogue between lower instance national courts and tribunals and the Court be impeded by national courts’ more senior national Brethren, with appeals being allowed against orders for reference within national legal orders? The case law of the Court on such an issue has been progressive, in that it developed slowly over time, and the Court, by 2021, becoming increasingly assertive. As will be analysed in this article, the Court’s approach to the arising issue has clearly been an attempt to balance the interests of judicial dialogue on the one hand, and national rules on the other. Yet, with the Court’s broader case law tightening the understanding of who constitutes the European judiciary, and ensuring that all national courts and tribunals remain independent from executive interference in EU Member States, the article commends recent developments, but makes the further plea for an affirmative judgment of the Court to not permit, as a matter of EU law, appeals against orders for reference made by lower instance national courts and tribunals in EU Member States, in the name of preserving judicial dialogue through the preliminary reference procedure.

Canaries or Colonials? The Reduced Prominence of the ‘Overseas Judges’ on Hong Kong's Court of Final Appeal

AbstractTypically one member of a sitting panel of Hong Kong's Court of Final Appeal is a senior jurist drawn from another common law jurisdiction. In the Court's early years, these ‘overseas judges’ were responsible for writing approximately one quarter of the lead opinions across a vast range of cases. This article demonstrates, however, that this practice has changed. The overseas judges now write a smaller share of lead opinions and no longer write lead opinions related to issues of fundamental human rights or the relationship between Hong Kong and the rest of China. This article suggests this change has been made for good reason. Though valid questions about the legitimacy of the role of the overseas judges can be made, they also continue to perform a valuable communicative role regarding the status of Hong Kong's judicial independence under the ‘one country, two systems’ framework. A recent rise in attacks on overseas and other ‘foreign’ judges in Hong Kong can be understood as part of a broader project that seeks to constrain the role of the independent judiciary. By continuing to invite overseas judges to sit on the Court of Final Appeal but reducing their public prominence, the Court has sought not only to reduce avenues for attacks on the legitimacy of particular decisions, but to protect the autonomy and independence of the judiciary more broadly.

Prosecutor v. Mladić (U.N. Int'l Residual Mechanism Crim. Tribunals App. Chamber)

On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić's final appeal, opening the door for his assignment to a prison somewhere in Europe.