Court Of 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.

Purse Seiner non grata: Privy Council Wades into Pacific fisheries

William Framhein & another v Attorney General [of the Cook Islands] was heard by the Judicial Committee of the Privy Council on 17 November 2021, with the judgment released on 28 February 2022. The case concerned a judicial review of three decisions made by the Cook Islands Government in relation to the establishment of its purse seine fishery in 2013, which is subject to international management arrangements made by the Western and Central Pacific Fisheries Commission. The three decisions at issue were the making of the Skipjack Tuna Purse Seine Fishery Plan 2013, the promulgation of the Marine Resources (Purse Seine Fishery) Regulations 2013, and the adoption and signature of the Sustainable Fisheries Partnership Agreement and Implementation Protocol with the European Union. The case was brought by a private citizen and traditional leader, Mr William Framheim, together with a local environmental NGO, Te Ipukarea Society. The Applicants brought the case to the High Court of the Cook Islands in 2017 and, following the Court’s dismissal of their claim, appealed to the Court of Appeal in 2018. Both parties appealed elements of the Court of Appeal’s decision to the Privy Council, which is the Cook Islands’ highest appeal court. Ultimately, the government prevailed on its cross-appeal to the Privy Council, and the Applicants’ appeal was dismissed. The case centers on the interaction between customary international law, the international fisheries legal regime, and domestic law (including indigenous customary law). The findings are significant not just for the Cook Islands, but for all Commonwealth countries engaged in fishing that rely on the Privy Council as a final court of appeal.

CAS FOR ESPORTS: REALITY OR UTOPIA?

The authors examine the peculiarities of dispute resolution in esports and the current state of reforms. The author analyzes the factors influencing the choice of jurisdiction for consideration of disputes in the field of esports in the absence of clear rules for determining the jurisdiction and category of disputes in the field of esports. Attention is drawn to the possible options for jurisdiction in the field of esports. The author notes the peculiarities of dispute resolution within the framework of litigation, commercial arbitration, sports arbitration court and special arbitration bodies or persons authorized to consider disputes and their legal regulation. The author describes the advantages and disadvantages of the existing arbitration bodies and focuses on the mechanisms that have the potential to improve dispute resolution in the esports industry. Given the practice of dispute resolution, it is summarized that arbitration and which institutions are currently the main places for dispute resolution in the field of esports. It is concluded that due to the increasing inclusion of virtual sports (video games) in the category of sports, they should have the same protection regime, and therefore, the resolution of disputes related to them should fall under the jurisdiction of the Court of Arbitration for Sport. Therefore, the Court of Arbitration for Sport may potentially serve as the final court of appeal for any sports organization, if provided for in its regulations. At the same time, it is currently problematic that the Court of Arbitration for Sport has not yet recognised esports as a legitimate sport and has therefore not yet made any arbitral awards in cybersport disputes. This is the basis for the creation of a specialized court that would be able to consider a wide range of technical disputes related to video games. However, the author substantiates why the creation of a new institution is less effective than reforming the existing Court of Arbitration for Sport.

Understanding the Third Reich by Means of the Law: The Decisions of the Supreme Restitution Court for Berlin as Sources on the Holocaust and the Development of Holocaust Interpretations

This article introduces the decisions of the Oberstes Rückerstattungsgericht für Berlin (Supreme Restitution Court for Berlin) as historical sources that contribute to a better understanding of how early interpretations of the Holocaust developed. The Oberstes Rückerstattungsgericht für Berlin was established in 1953 as the final court of appeals for restitution matters in West Berlin. Some of its decisions were published in a collection that would later be used by judges, lawyers and claimants. Legal experts and practitioners who dealt with restitution would also discuss these decisions extensively. As no other means of gathering insight into the Oberstes Rückerstattungsgericht für Berlin's work were available, its publications became the most important communicative channel for actors within the Court's jurisdiction. The decisions contained distinct narratives concerning the Third Reich that stressed the importance of authoritative political structures while also focussing on state agencies and the Nationalsozialistische Deutsche Arbeiterpartei as main actors. The accounts given in the decisions were partly based on analyses of historical records that were performed either by the judges themselves or by historians at the Institut für Zeitgeschichte in Munich (Institute for Contemporary History). This article suggests that on a broader societal level, the decisions contributed to the dissemination of state-centred ideas about the Holocaust. At the same time, the text draws attention to their complicated genesis. Situating the emergence of the decisions alongside the concrete implementation of restitution laws, the Cold War in Berlin and Vergangenheitspolitik (politics of the past), I demonstrate that the perpetuation of state-focussed historical concepts, to a large extent, resulted from the judges’ desire to lessen their significant workloads and to work without the interference of political actors.

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.

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

The Retention of the Mandatory Death Penalty in Trinidad and Tobago: An Ongoing Human Rights Concern

Commonwealth Caribbean countries account for a significant portion (roughly 15%) of the Global South region. The Republic of Trinidad and Tobago (“Trinidad and Tobago”) is the lone Commonwealth Caribbean country that retains the mandatory death penalty on its statute book in defiance of its human rights obligations. The retention of this anti-human rights punishment is due, in large measure, to decisions from Trinidad and Tobago’s final court of appeal, the Judicial Committee of the Privy Council (“JCPC”), which has affirmed the constitutionality of the mandatory death penalty. This article comparatively evaluates the jurisprudence on the mandatory death penalty from the JCPC and its regional counterpart, the Caribbean Court of Justice (“CCJ”), to demonstrate that while the CCJ rightly places a premium on the protection of human rights, the posture of the JCPC severely threatens the respect, protection, and fulfillment of human rights. The article argues that the most recent judicial decision from the JCPC on the mandatory death penalty continues to afford Trinidad and Tobago a free pass to disregard its international human rights obligations indefinitely. It further argues that this state of affairs is wholly censurable for a civilized nation that supposedly has respect for the fundamental rights of the individual. Consequently, the Parliament of Trinidad and Tobago should take the only corrective action remaining, which is to abolish the mandatory death penalty by legislative intervention.
 

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.

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

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.

A Securitized “One Country, Two Systems”?

This paper examines how Macau, with a different political and legal system under the “one country, two systems” principle, fits into China’s securitization and what impact that has on its local governance. We argue that in recent years Macau’s legal system has gradually transformed into a means of social control. Through case files related to the Assembly and Demonstration Law drawn from the Court of Final Appeal, we demonstrate that although Macau is unlike Hong Kong, where dissidents are subject to severe repression, Beijing’s emphasis on national security has weakened the checks-and-balances function of Macau’s legal system and substantially narrowed the scope of freedom of speech, even though it is nominally guaranteed and protected by the Basic Law.

Joe Zhixiong Zhou v SAIF Partners II L.P.: The importance of mapping out the correct corporate structure

Abstract Joe Zhixiong Zhou v SAIF Partners II L.P. is a recent judgment of the Hong Kong Court of Final Appeal which concerns a dispute between a private equity fund and its former partner. This judgment, written by Lord Hoffmann NPJ and substantially shorter than those handed down by the lower courts, has several important implications. In this article, we will first unpack and explain the judgment and supplement the discussions with the relevant legal principles and concepts. We will then discuss the judgment’s implications to cases involving a complex web of parties and/or fiduciaries.

When death is literally the deadline: the “cut-off” point for assessing detriment in proprietary estoppel

Abstract Throughout the brief history of proprietary estoppel, it has been rare to find a case where it was argued that the promisor passed away before the promisee suffers sufficient detriment. Rarer still, to find this promise made jointly by co-owners as tenants-in-common of a property. In Cheung Lai Mui v Cheung Wai Shing [2021], the Hong Kong Court of Final Appeal found the “cut-off” point for assessing detriment in such a case to be the death of the last surviving co-owner—but why should it be? This article explores the theoretical interactions between proprietary estoppel, unconscionability and co-ownership in seeking to answer this question.

Competition Law: an exception to human rights?

Jurisdictions around the world are imposing increasingly large financial penalties for breach of competition law. This article considers the limitations human rights law places on the ability of governments, courts and regulators to impose financial penalties in competition law cases. Following principles established by Hong Kong's Court of Final Appeal in the securities and futures context, Hong Kong’s Competition Tribunal has held that competition proceedings seeking financial penalties constitute a criminal charge and that human rights law requires the competition regulator to prove its case beyond reasonable doubt. This raises the question whether other jurisdictions might reconsider their approach to cases involving financial penalties, both in competition law and other contexts. At the same time, the Tribunal has rejected other traditional criminal law safeguards and related human rights protections, raising the question whether they are separable when hearing cases involving a criminal charge. The issues discussed here are increasingly important as competition law (and other) regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards.