Highlights of 2010 and 2011

 

Initiatives and reforms

Mediation Task Force

The cross-sector Working Group on Mediation, set up and chaired by the Secretary for Justice in February 2008, published a report for public consultation in February 2010, putting forward 48 recommendations on public education and publicity, accreditation and training, and a regulatory framework, all intended to promote and facilitate the wider use of mediation to resolve disputes in Hong Kong. To implement those recommendations in the report which received general support, the Secretary for Justice has set up a Mediation Task Force, assisted by three sub-groups working specifically on accreditation, a mediation Ordinance, and public education and publicity.

 
   
 

On accreditation, the Task Force supports the setting up of a non-statutory industry-led single accreditation body and is facilitating the establishment of such a body.

As for the proposed mediation legislation, the Mediation Bill was introduced to the Legislative Council in November 2011. The Bill defines mediation and mediation communication and provides for the confidentiality of mediation communications and for their admissibility in evidence with leave of the court or tribunal.

On public education and publicity, the Task Force has been involved in the production of an Announcement in the Public Interest which was broadcast on television and radio from December 2011 to enhance public awareness of the use of mediation to resolve disputes. The Task Force is proposing to hold a two-day conference on mediation in Hong Kong in the first half of 2012 which will provide opportunities to share experience, review the development of mediation in Hong Kong and overseas, and to consider ways to promote and facilitate the greater use of mediation.

 

Conference on “The Administrative Disputes Resolution Systems Adopted by the Governments of the Mainland, Taiwan, Hong Kong and Macao", Guangzhou, March 2010

 
Plenary session of the Guangzhou conference on Administrative Disputes Resolution Systems
 

The conference was co-organised by the Society on Administrative Law of the China Law Society and Guangzhou University. Participants came from the Mainland, Taiwan, Macao and Hong Kong, and included members of the Department of Justice, the Legal Aid Department and the City University of Hong Kong. Counsel from the Civil Division gave a presentation on the mechanism for resolving disputes between the government and the public in Hong Kong. They also participated in the discussions at the plenary sessions and shared the Hong Kong experience in resolving disputes through judicial and non-judicial means. The conference facilitated useful exchanges amongst academics and practitioners in the Mainland, Taiwan, Macao and Hong Kong.

 

Towards more accessible legislation

The Legislation Publication Ordinance (Cap 614) was passed by the Legislative Council in June 2011. This is a major step towards the establishment of a verified, authenticated and searchable electronic database of all Hong Kong legislation. The Ordinance provides legislative backing for the establishment of the database. While the existing Bilingual Laws Information System also provides a consolidated version of the laws of Hong Kong through the internet, it has no legal status and serves for reference purposes only. The enactment of the Ordinance paves the way for the establishment of a reliable legislation database on an official website. This initiative will allow the public and the legal profession free and convenient online access to accurate and updated Hong Kong legislation with legal status anywhere, anytime. The following are some of the more important benefits expected:

  • timely dissemination of, and free access to, Hong Kong legislation with legal status
  • improved accuracy and efficiency in compiling Hong Kong legislation
  • opening up opportunities for the effective provision of value-added services such as annotation of legislation
  • contribution to greener lifestyle

We plan to implement the database in two phases. Phase one will cover core functions for use by the Department of Justice internally and phase two will cover functions for use by the rest of government and the public. However, the process of verifying and confirming the legislation database as an accurate and authoritative version of the legislation will be a formidable task which will probably take several years to complete. The existing loose-leaf edition of our legislation will be phased out progressively as the process makes its way to completion.

 

Legislation on the move

Pending the establishment of the legal status of the legislation database, we are continuing to improve and upgrade our Bilingual Laws Information System. The existing system was designed only for reading by browsers running on computer platforms. The department therefore launched the Mobile Bilingual Laws Information System in May 2011 to provide a user-friendly display of the system on mobile devices such as tablet computers.

 

Guide to styles of local legislation

 
   

In 2011, the Law Drafting Division decided to publish a booklet entitled Drafting Legislation in Hong Kong - A Guide to Styles and Practices, which is a comprehensive guide to the styles and practices used in drafting legislation in Hong Kong. Illustrated with numerous examples, the guide explains the techniques and practices used by the counsel who draft Hong Kong’s legislation. It also discusses the legal parameters within which Hong Kong’s laws are drafted, including the Basic Law, specific Ordinances and common law principles. The guide also offers tips on drafting and the pitfalls to be avoided. It is hoped the guide will be of interest to government officials, legislators, the judiciary, the legal profession and the general community of Hong Kong, who may find our statute book easier to understand with the assistance of the guide. The guide will be published in January 2012.

 

Development of the legal profession

The Legal Practitioners (Amendment) Bill 2010 was introduced into the Legislative Council in June 2010. The Bill seeks to introduce limited liability partnerships (LLPs) as a vehicle for solicitors’ practices in Hong Kong, so as to enhance the development and competitiveness of our law firms. The effect of LLP status would be that the liability of partners of the firm would no longer be unlimited (as in the case of a conventional partnership) and innocent partners would not, solely by reason of being partners, be held personally liable for professional negligence committed by other partners of their firm.

The department has been working closely with stakeholders and the Legislative Council to ensure the legislation strikes a proper balance between limiting professional liability and safeguarding public interests. We hope that the Bill will be passed by the Legislative Council in the 2011-12 legislative session.

In addition, the department is working closely with the Higher Rights Assessment Board, which is empowered to make rules to implement the statutory scheme under the Legal Practitioners (Amendment) Ordinance 2010 to allow solicitors having at least 5 years’ post-qualification experience and satisfying further eligibility requirements to apply to the board for higher rights of audience before the High Court and the Court of Final Appeal. The scheme will be brought into full operation after the Legislative Council’s clearance of the rules made by the Higher Rights Assessment Board.

 

Enactment of the Matrimonial Proceedings and Property (Amendment) Ordinance 2010

The Amendment Ordinance came into effect on 1 March 2011. It empowers the High Court and the District Court to order financial relief for a former spouse whose marriage has been dissolved or annulled, or who has been legally separated, in judicial or other proceedings outside Hong Kong. Before the Matrimonial Proceedings and Property Ordinance (Cap 192) was so amended, the court’s powers to make an order for financial provision in favour of a former spouse were conditional on the grant of a divorce decree by a Hong Kong court. A party who had obtained a divorce decree in a jurisdiction outside Hong Kong which was recognised in Hong Kong could not therefore apply to the Hong Kong courts for financial relief.

 

Promotion of Hong Kong as a regional arbitration centre

 
   

The department has been making vigorous efforts to promote Hong Kong as a regional centre for international arbitration in the Asia-Pacific region. In October 2010, the department signed a co-operation arrangement with the China Council for the Promotion of International Trade with the aim of enhancing the dispute resolution mechanisms in both Hong Kong and the Mainland. In May 2011, the government offered to make available additional office space to the Hong Kong International Arbitration Centre (HKIAC) to enable it to expand its hearing and office facilities. The expanded facilities would enable the HKIAC to cope with the increasing demand for arbitration services in Hong Kong.

 
 
The Secretary for Justice with Mr Huen Wong, the Chairman of the Hong Kong International Arbitration Centre, at a reception to promote the Arbitration Ordinance

With the commencement of the new Arbitration Ordinance (Cap 609) on 1 June 2011, Hong Kong now provides a unified legal regime for domestic and international arbitration based on the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law. The new Ordinance will further strengthen the city's appeal as a regional hub for international arbitration.

 

“Hong Kong Legal Services –
Global Vision” forum, Shanghai, July 2010

To demonstrate Hong Kong’s strength as a regional centre for legal services and dispute resolution and to promote Hong Kong’s legal and arbitration services, the department co-organised the “Hong Kong Legal Services – Global Vision” forum in Shanghai on 6 July 2010 with the Hong Kong Trade Development Council, the Bar Association of Hong Kong, the Law Society of Hong Kong, the Hong Kong International Arbitration Centre and the International Court of Arbitration of the International Chamber of Commerce.

 
The Secretary for Justice addressing the Hong Kong Legal Services Forum in Shanghai
 

The forum brought together experienced Hong Kong legal practitioners and arbitrators to share their experience of various practical legal issues (including legal risks in international trade and resolving commercial disputes) and to examine the strategies for dispute resolution through case analysis. More than 500 Mainland government officials, lawyers, corporate counsel, and representatives from Mainland and foreign business enterprises attended the forum.

 

The Closer Economic Partnership Arrangement with the Mainland (CEPA) and the development of Qianhai

In August 2011, Mr Li Keqiang, Vice-Premier of the State Council, announced a package of measures by the Central Government to support social and economic development in Hong Kong. These included a proposal to explore ways of improving the mode of association between law firms in Hong Kong and the Mainland and support for the establishment of services in Qianhai by Hong Kong arbitration bodies. This support was in line with the “Overall Development Plan on Shenzhen-Hong Kong Co-operation on Modern Services Industries in Qianhai Area”, which was announced in December 2010 by the Shenzhen authorities.

   
 
The Secretary for Justice (first right) signs the "Co-operative Arrangement on Legal Matters" with Shenzhen's Vice Mayor Chen Yingchun (second right)
 

Following Vice-Premier Li’s announcement, in August 2011 the Secretary for Justice led a delegation of representatives of the Hong Kong legal and arbitration services sectors to Shenzhen to exchange views with relevant parties there on the promotion of Hong Kong’s legal and arbitration services in Qianhai. The Department of Justice and the Shenzhen Municipal Government subsequently signed a “Co-operative Arrangement on Legal Matters” on 25 November 2011. Under this arrangement, the two sides undertake to discuss, and exchange information on, legal issues relating to Hong Kong-Shenzhen co-operation projects, including the development of modern service industries in Qianhai.

On 13 December 2011, CEPA Supplement VIII was signed in Hong Kong, making new commitments on the liberalisation of legal services. These were (i) to explore ways of improving the mode of association between law firms in Hong Kong and the Mainland and (ii) to consider broadening the scope of business of Hong Kong residents with Mainland legal qualifications and a Mainland practice certificate in acting as agents in civil litigation cases in the Mainland relating to Hong Kong residents and juridical persons.

 

Arrangement for the reciprocal recognition and enforcement of arbitral awards between Hong Kong and Macao

At present, there is no arrangement between Hong Kong and Macao for the mutual recognition and enforcement of arbitral awards. In order to add certainty to the enforcement of awards in Hong Kong made by Macao arbitration authorities and vice versa, the department has exchanged views and information with the Macao SAR Government on a proposal to establish an arrangement for the reciprocal recognition and enforcement of arbitral awards. It is anticipated that formal discussions between the two governments will begin soon, with a view to finalising the terms of the arrangement in 2012.

 

Criminal Advocacy Course

In 2011, the Prosecutions Division commissioned a barrister in private practice to revise and update the course materials of its Criminal Advocacy Course for new recruits. The product, which is not only a comprehensive set of lecture notes but also a handy reference for court purposes, will be published in 2012.

 

Continuing legal education for prosecutors

   
 
Prosecutors take part in a programme of continuing legal education
 

To keep prosecutors abreast of recent developments in the law, the Prosecutions Division engaged an associate professor of the University of Hong Kong to provide a series of monthly seminars for 12 consecutive months, commencing in March 2011. As a manifestation of the spirit of co-operation between Hong Kong and Singapore in matters of common interest, the seminars are also shared with counsel of Singapore’s Attorney General’s Chambers through a live television link. The seminars have been well-received and well-attended by prosecutors in both places.

 

Joint training programme with the Bar Association and the Law Society

As a new initiative, in February 2011 the Prosecutions Division joined the Hong Kong Bar Association and the Law Society of Hong Kong in organising a training programme for newly qualified lawyers. The training programme, which will be held twice a year, aims to equip new members of the profession with the knowledge and skills necessary for prosecutorial work, with a view to including them on the Prosecutions Division Magistrate’s Courts Fiat List. Barristers and solicitors with less than five years’ post-qualified experience who have acquired some advocacy experience are eligible for the training programme, which consists of a one-day training course and a two-week magistracy assignment.

 

Enhancement of information technology capability

A range of initiatives were undertaken during 2010 and 2011 to enhance the department’s information technology (IT) capability. These included:

  • the enhancement of the Bilingual Laws Information System to allow its contents to be displayed on mobile devices in a user-friendly way
  • the replacement of the outdated Library Management System by a new Integrated Library System with more advanced functions and user-friendly interface to improve the operations and services of the library
  • the redevelopment of the Work Management System for the International Law Division and the Law Drafting Division to improve system performance, reliability and security
  • the upgrade of the Virtual Private Network facility to an updated system with improved reliability and a more user-friendly user interface
  • the upgrading of the office software suite and the web browser to an updated version
  • the implementation of the Electronic Record System for the Prosecutions Division to convert paper case files into electronic format for custody
  • the enhancement of the legislation drafting templates for the Law Drafting Division
  • the upgrade of the document management software and the replacement of the server and storage hardware of the Bilingual Document Management and Archival system to improve the system’s reliability, performance and security
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Notable cases

Criminal

 
   

In Lily Chiang v Secretary for Justice (2010) 13 HKCFAR 208, the applicant sought leave to appeal to the Court of Final Appeal to challenge the decision of the prosecution to choose as the venue of the trial the District Court (where the trial would be before a professional judge sitting alone) rather than the Court of First Instance (where the trial would be before a judge and a jury), her judicial review proceedings having failed both at first instance and on appeal. In refusing leave, Li CJ said, “it is in our view clear that the contention that section 88 is unconstitutional because it allocates a judicial function to the Secretary for Justice is not reasonably arguable. Choice of the venue for a prosecution is clearly a matter covered by Article 63 of the Basic Law which gives control of prosecutions to the Secretary for Justice without any external interference. Wright J’s conclusion was plainly correct.” The criminal trial of the applicant subsequently proceeded in the District Court and she was convicted after trial of various charges of conspiracy to defraud, fraud and false statement by directors and was sentenced to a total of 3½ years’ imprisonment.

In HKSAR v Nancy Ann Kissel (2010) 13 HKCFAR 27, the Court of Final Appeal in allowing the appeal of the defendant, who had been convicted of murdering her husband, an American banker of Merrill Lynch, after lacing his milkshake, set the scope of permissible cross-examination of the accused on matters pertaining to her bail applications. A retrial was ordered and the defendant was eventually convicted of murder on retrial.

In HKSAR v Chan Wai-yip and others (2010) 13 HKCFAR 842, the Court of Final Appeal determined the issue of whether a secret agreement between potential bidders not to compete at an auction constituted the common law offence of conspiracy to defraud. The facts were that before attending a restricted auction held by the Food and Environmental Hygiene Department (FEHD), the tenants of the cooked food stalls had attended a pre-allotment exercise and agreed among themselves not to compete against one another in bidding for the cooked food stalls at the auction. The court held that there was no deception because the FEHD was not aware of the pre-allotment and the agreement not to compete until sometime after the auction; there was no evidence that the FEHD had been deceived; the FEHD did believe that only one bid was offered at the upset price for each stall but that belief was founded on the FEHD’s knowledge of what in fact happened at the auction. The court declined to discard the English authorities to bring “knock out” agreements within the reach of the law of criminal conspiracy. Accordingly, the appeal was dismissed. The judgment triggered a series of debates in the community over the need to legislate for a comprehensive anti-competition law for Hong Kong.

 
   

In HKSAR v Hung Yung-chun and Ko Tien-ping (2011) 2 HKLRD 174, the Court of Appeal gave guidance on sentencing for telephone deception, a crime which has become prevalent in recent years. The victims in that case were all aged from 58 to 70 years old. They each received phone calls from someone who claimed to be the victim’s son seeking help as he was being detained or beaten up. Another unknown man then took over the phone and said that the victim’s son had acted as a guarantor for others. Since the debtor had gone missing, the son had to repay the debt on the debtor’s behalf. The Court of Appeal stressed that telephone deception was more serious than street deception and that a starting point of four years’ imprisonment and an enhancement of sentence of one-third under the provisions of the Organized and Serious Crimes Ordinance (Cap 455) were appropriate.

Secretary for Justice v Ng Wai-bing and others (HCMP 840/2010) was a case where criminal contempt of court proceedings were brought by the Secretary for Justice against three respondents for using a concealed recording device to record the conversations of several police witnesses in a witness room within the court precincts in the course of a criminal trial. Two of the respondents were found in contempt and were committed to jail for nine and six months respectively, both suspended for 18 months. The Secretary for Justice brought appeals against the sentences imposed against them (CACV 11/2011) and the order not to commit the third respondent (CACV 247/2010). However, both appeals were dismissed by the Court of Appeal. Separately, criminal proceedings were instituted against the first respondent for one count of perverting the course of public justice and one count of perjury. Two police officers involved in the original trial were also prosecuted for, and convicted of, perverting the course of public justice and misconduct in public office (DCCC 884/2010).

In HKSAR v Francis Lee Kwok-wah (HCCC 183/2010), the defendant was convicted of offences of unlawful sexual intercourse, indecent conduct towards a child and indecent assault. The defendant was the operator of a children’s home in a small town in the Yunnan Province of Mainland China and the offences were committed against children resident there. The provisions of section 153P of the Crimes Ordinance (Cap 200), which extends the jurisdiction of the courts of Hong Kong to certain sexual offences committed outside Hong Kong, were invoked for the first time in this prosecution.

In HKSAR v Du-jun (DCCC 787/2008), the defendant, the Managing Director of the Fixed Income Department of Morgan Stanley Asia Ltd, was charged with 10 charges of insider dealing. The prosecution’s case was that he, being involved in the issue of bonds to fund the acquisition of a Kazakhstan oil field, dealt with the shares of Citic Resources Holdings Ltd after receiving confidential and non-public information about the fact that Citic had decided to buy the oilfield and by that insider information he made a notional profit of $23.3 million. The defendant was convicted as charged and sentenced to seven years’ imprisonment which was the maximum sentence that could be imposed by the District Court.

In HKSAR v Mo Ri-ming and Zhou Yao-xing (DCCC 118/2010), the two defendants together stole a diamond ring with a market price of HK$2,750,000 from a jewellery shop in Busan, South Korea. After finding that the ring had gone, sales staff checked the closed circuit television recording and found that the ring had been stolen by the defendants. The matter was reported and the defendants were traced to a flight to Hong Kong. Upon landing at the Hong Kong International Airport, the defendants were arrested. They were prosecuted for dealing with property known to represent the proceeds of an indictable offence under the Organized and Serious Crimes Ordinance (Cap 455). They were both convicted and were sentenced to imprisonment for 22 months and two weeks.

In HKSAR v Ki Chun-yim (DCCC 408/2011), the defendant was convicted after trial of eight charges of blackmail and one charge of perverting the course of public justice. The victim, X, was a director and shareholder of a publicly listed company in Hong Kong. X came to know the defendant in a pub where she was working as a hostess and they had an extramarital affair. Subsequently, X wanted to terminate the relationship. The defendant, however, refused to do so and repeatedly threatened to harm X and his family. The defendant told X that she had employed private detectives to follow him and she was able to give details of his movements. She also said that she was in contact with persons on the Mainland who would carry out her threats. Whilst on police bail, the defendant threatened to kill the victim and his family if he were to give a witness statement to the police. By her threats, the defendant obtained a total of $10 million from X. The trial judge, in his sentencing remarks, described the defendant as an “evil, ruthless, manipulative, calculating and dangerous person” and he sentenced her to seven years’ imprisonment, the maximum imprisonment term that can be imposed in a District Court case.

In HKSAR v Lui Yuk-lin and Tsang Chun-ying (ESCC 1341/2011), members of the League of Social Democrats held a public procession to the Liaison Office of the Central People’s Government on 1 October 2010. The protestors intended to charge the police cordon. During the event, Lui pulled a metal bar off a barrier and Tsang forcefully bumped against the chest and/or left arm of a serving police constable. The defendants were respectively charged with and convicted of the offences of criminal damage and assaulting a police officer. They were ordered to serve Community Service Orders of 120 hours and 160 hours respectively.

 

Civil

Basic Law litigation

In Vallejos Evangeline Banao v Commissioner of Registration & another (HCAL 124/2010), the applicant challenged the constitutionality of section 2(4)(a)(vi) of the Immigration Ordinance (Cap 115), which deems a person's presence in Hong Kong when employed as a foreign domestic helper not to be ordinary residence, preventing her from acquiring the right of abode in Hong Kong. In its judgment dated 30 September 2011, the Court of First Instance held that on the common law interpretation approach the impugned provision is inconsistent with Article 24(2)(4) of the Basic Law. The Government has lodged an appeal which will be heard before the Court of Appeal on 21-23 February 2012.

In The Catholic Diocese of Hong Kong v Secretary for Justice (FACV 1/2011), the applicant challenged the compulsory implementation of the school-based management policy in aided schools and sought declaratory relief that sections 40BK(2) and (3)(a) and 40 BU(2) & (3) of the Education Ordinance (Cap 279) which obliged sponsoring bodies of aided schools to submit draft constitutions of the proposed incorporated management committees (with the mandatory inclusion of a number of stakeholders such as teachers, parents and alumni as managers to sit along with managers appointed by the school sponsoring body) before certain specified dates contravened Articles 136(1), 137(1) and 141(3) of the Basic Law. The Court of Final Appeal held that the sections did not involve abandonment of the pre-1997 education system nor affect the religious dimension of the applicant's "previous practice" in running schools. There was no violation of any constitutional rights enjoyed by the applicant and the appeal was dismissed on 13 October 2011.

In W v Registrar of Marriages (HCAL 120/2009), a post-operative male-to-female transsexual challenged the Registrar of Marriages’ refusal to allow her to register a marriage with her male partner. Insofar as she was prohibited from marrying a man (as opposed to a woman), the applicant argued that the Registrar had misinterpreted the words “man” and “woman” and “male” and “female” in sections 21 and 40 of the Marriage Ordinance (Cap 181), or, alternatively, that those provisions were inconsistent with Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights guaranteeing the right to marry. The Court of First Instance, in its judgment dated 5 October 2010, held that on a proper interpretation of the relevant provisions, “man” and “woman” and “male” and “female” did not cover a post-operative male-to-female man and woman respectively. Rather, their sex was to be determined for the purposes of those provisions according to their biological sex at birth. The court further concluded that the relevant provisions did not infringe the right to marry guaranteed under the Basic Law and the Hong Kong Bill of Rights. In a judgment dated 25 November 2011 the Court of Appeal upheld the lower court’s decision. The applicant is seeking leave to appeal to the Court of Final Appeal.

 

Health and social welfare

In Fok Chun-wa and another v Hospital Authority and another (HCAL 94/2007), the Court of First Instance upheld the policy of the Hospital Authority to charge non-Hong Kong resident pregnant women higher rates for obstetric services as being constitutional and not discriminatory. The appeal to the Court of Appeal took place on 2-4 March 2010 and the Court of Appeal’s judgment was handed down on 10 May 2010, allowing the appeal but only on the single issue of waiver and setting aside the Hospital Authority’s refusals to waive or reduce the hospital fees levied upon the second applicant. The matter was remitted to the Hospital Authority for fresh consideration. The hearing of the appeal before the Court of Final Appeal is fixed for 8-9 March 2012.

 
   

In Kong Yun-ming v Director of Social Welfare (HCAL 127/2008), the Court of First Instance dismissed an application for judicial review of the constitutionality of the seven-year residence requirement for an applicant to receive assistance under the Government's Comprehensive Social Security Assistance Scheme (CSSA). In Yao Man-fai v Director of Social Welfare (HCAL 69/2009), the Court of First Instance allowed an application for judicial review challenging the constitutionality of the requirement that, subject to a grace period of 56 days, an applicant for CSSA must have resided in Hong Kong continuously for at least one year immediately before the date of application and held that the one-year continuous residence requirement constituted an unconstitutional and unlawful discrimination against those permanent residents who had been absent from Hong Kong for a total period of more than 56 days in the year immediately prior to their applications for CSSA and infringed their rights to travel. The appeals of Kong Yun-ming (CACV 185/2009) and of the Director of Social Welfare (CACV 153/2010) were heard together by the Court of Appeal between 18 and 21 July 2011, with judgments reserved.

In Lam Wo-lun v Director of Social Welfare (HCAL 133/2010), the applicant challenged by judicial review the constitutionality of the Director of Social Welfare's decision dated 23 July 2010 in rejecting his application for old age allowance on the sole ground that he did not satisfy the residence requirement of having resided in Hong Kong continuously for at least one year immediately before the date of his application and the decision of the Social Security Appeal Board in dismissing his appeal against the director's decision dated 23 July 2010. The substantive application for judicial review was heard on 12 December 2011, with judgment reserved.

 

Elections

In Charles Peter Mok v Tam Wai-ho, Vincent Fung Hao-yin and Secretary for Constitutional and Mainland Affairs (FACV 8/2010), the petitioner, who was a candidate for the Legislative Council election for the information technology functional constituency held on 7 September 2008, challenged the result of the election on the ground that material irregularities had occurred in the election and that the first respondent had engaged in illegal and corrupt conduct. The petition was dismissed by the Court of First Instance on 9 April 2009. On 3 December 2009, the Court of Appeal dismissed the appeal on the ground that the absence of a right of an intermediate appeal to the Court of Appeal (the combined effect of the finality provision in section 67(3) of the Legislative Council Ordinance (Cap 542) which provided for the finality of the determination of the Court of First Instance after the trial of an election petition and section 14(3) of the High Court Ordinance (Cap 4)) did not contravene Article 82 of the Basic Law. On 13 December 2010, the Court of Final Appeal allowed the appeal, holding that the finality provision failed to satisfy the proportionality test in A Solicitor v Law Society of Hong Kong and Secretary for Justice (FACV 7/2003) and thus was unconstitutional and invalid as being inconsistent with Article 82 of the Basic Law. The substantive appeal from the Court of First Instance decision was remitted to the Court of Appeal for a re-hearing and was dismissed on 9 June 2011. The petitioner's application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 21 October 2011. The petitioner’s application to the Appeal Committee for leave to appeal to the Court of Final Appeal is fixed for 6 January 2012.

In Chan Yu-nam v Secretary for Justice and Lo Hom-chau v Secretary for Justice, the applicants sought a declaration that sections 25 and 26 of the Legislative Council Ordinance (Cap 542), to the extent that they provide for corporate votes, are unconstitutional and have no effect. The applicants contended, inter alia, that an individual’s right to vote was unjustifiably restricted by the requirement of permanent residence for seven years, whereas corporate electors only needed to have been established for 12 months immediately before an application for registration. The latter were therefore given undue advantage in expressing their political views, in contravention of article 26 of the Basic Law (and article 21(b) of the Hong Kong Bill of Rights) which gives the right to vote to permanent residents of the Hong Kong Special Administrative Region only. The substantive applications for the judicial review of the two proceedings were heard together and were dismissed by the Court of First Instance on 10 December 2009. By a judgment handed down on 7 December 2010, the Court of Appeal dismissed the appeals. The two applicants' applications for leave to appeal to the Court of Final Appeal were refused by the Court of Appeal on 21 October 2011 and they have lodged applications to the Court of Final Appeal for leave to appeal. Hearing of the leave applications before the Appeal Committee has been fixed for 18 January 2012.

 

Rating and government rent

In The Hong Kong Electric Company Ltd (HEC) v Commissioner of Rating and Valuation (LDRA 358/2004 and LDGA 224/2004, CACV 27/2010 and FACV 12/2010), HEC lodged a rating appeal and a government rent appeal, both in respect of the assessment year of 2004/2005, against the commissioner’s valuation of its tenement which comprised the land, buildings and structures it occupied and used for the generation, transmission and distribution of electricity. There were parallel appeals on both rates and government rent in respect of three other assessment years (2005/2006, 2006/2007 and 2007/2008). Judgment was handed down by the Lands Tribunal on 30 November 2009, upholding the commissioner’s use of the receipts and expenditure method of valuation while agreeing with HEC that the permitted return under the scheme of control, instead of the weighted average of cost of capital, should be used to determine the hypothetical tenant’s share of the divisible balance in the valuation. The commissioner obtained leave to appeal against the Lands Tribunal’s judgment to the Court of Appeal. On 14 September 2010, the Court of Appeal handed down its unanimous judgment allowing the commissioner’s appeal. HEC appealed against the Court of Appeal’s judgment to the Court of Final Appeal. By its unanimous judgment dated 21 June 2011, the Court of Final Appeal allowed HEC’s appeal and restored the judgment of the Lands Tribunal.

Best Origin Limited v Commissioner of Rating and Valuation (LDGA 14/1998, CACV 67/2008 and FAMV 21/2011) concerns the assessment of the rateable value of development sites in Hong Kong under the Government Rent (Assessment and Collection) Ordinance (Cap 515) and, in particular, the function and content of the rebus sic stantibus principle in rating law. On 25 February 2008, the Lands Tribunal dismissed Best Origin’s government rent appeals lodged in respect of the development site concerned. Best Origin appealed unsuccessfully to the Court of Appeal against the Lands Tribunal’s judgment, and Best Origin’s subsequent application for leave to appeal was unanimously dismissed by the Court of Appeal with costs on 15 April 2011. Best Origin’s application to the Court of Final Appeal for leave to appeal against the Court of Appeal’s judgment had been fixed to be heard before the Appeal Committee of the Court of Final Appeal on 1 December 2011. On 1 December 2011, the Appeal Committee of the Court of Final Appeal allowed Best Origin’s application for leave to appeal against the Court of Appeal’s judgment. Best Origin’s appeal has been fixed to be heard by the Court of Final Appeal on 26 November 2012 (with 27-30 November 2012 reserved).

 

Environment

 
The judicial review involving the Hong Kong - Zhuhai - Macao Bridge was one of the important cases handled
 

In Chu Yee-wah v Director of Environmental Protection (CACV 84/2011), the Director of Environmental Protection appealed against the Court of First Instance’s judgment of 18 April 2011 which allowed the applicant’s judicial review (HCAL 9/2010) and quashed the director’s decisions in granting approval to (i) the Environmental Impact Assessment reports relating to two of the three designated projects of the Hong Kong-Zhuhai-Macao Bridge Project (namely, the Hong Kong Boundary Crossing Facilities and the Hong Kong Link Road) and (ii) the environmental permits to construct and operate these designated projects. The Court of First Instance ruled in favour of the applicant on only one of the seven main issues canvassed in the judicial review and against her on the other six. The applicant cross-appealed four of the main issues and also appealed against the costs order of the Court of First Instance. The appeal was heard by the Court of Appeal on 23-25 August 2011 on an expedited basis. On 27 September 2011, the Court of Appeal unanimously allowed the director’s appeal with costs, and dismissed the applicant’s cross-appeal and her appeal against the Court of First Instance’s costs order.

 

Public international law

In FG Hemisphere Associates LLC v Democratic Republic of the Congo and others (CACV 373/2008 and 43/2009), the plaintiff appealed against the judgment of the Court of First Instance to dismiss its application for leave to enforce in the HKSAR two foreign arbitral awards against the Democratic Republic of the Congo. The Court of Appeal held on 10 February 2010 that, pursuant to the principle of “restrictive immunity”, the Democratic Republic of the Congo did not enjoy full sovereign immunity, and remitted the case to the Court of First Instance. The Democratic Republic of the Congo and other defendants as well as the Secretary for Justice (as intervener) lodged an appeal to the Court of Final Appeal against the Court of Appeal’s judgment (FACV 5-7/2010).

As the case involved questions about the application of the system of state immunity in the HKSAR, and the provisions of Articles 13(1) and 19 of the Basic Law concerning affairs which were the responsibility of the Central People's Government or the relationship between the Central Authorities and the HKSAR, the Court of Final Appeal decided on 8 June 2011 to seek an interpretation from the Standing Committee of the National People's Congress (NPCSC) on several questions relating to the relevant provisions of the Basic Law. Pursuant to the Court of Final Appeal’s request, the NPCSC on 26 August 2011 issued an interpretation of the relevant provisions of the Basic Law under Article 158(3) of the Basic Law. Thereafter, the Court of Final Appeal handed down its final judgment on 8 September 2011, confirming that the HKSAR courts had no jurisdiction over the Democratic Republic of the Congo under the principle of absolute immunity as applied by the Central People’s Government.

In C and others v Director of Immigration (CACV 132-137/2008), the appellants appealed against the judgment of the Court of First Instance that the principle of “non-refoulement of refugees” was not applicable in the HKSAR. The appellants contended that the principle of “non-refoulement of refugees” had become a rule of customary international law, and the HKSAR Government was required under that rule not to expel a refugee to the frontiers of a territory where he or she would face persecution, and to determine the status of all refugee claimants by way of screening. The Court of Appeal dismissed the appeal on 21 July 2011 and considered that, while the principle of "non-refoulement of refugees" had become a rule of customary international law, it had been “clearly overridden by domestic legislation to the contrary”, with the result that it had not been incorporated into the domestic law of the HKSAR. As such, the HKSAR Government was not required pursuant to that principle to screen all refugee claimants. Some of the appellants made applications for leave to appeal to the Court of Final Appeal and on 14 December 2011 the Court of Appeal granted leave to these appellants to appeal to the Court of Final Appeal. The hearing date of the substantive appeal is yet to be fixed.

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People

Mr Frank Poon was appointed Solicitor General in August 2010 in succession to Mr Ian Wingfield who retired from that post after 28 years of dedicated service in the government. Mr Kevin Zervos, SC, was appointed Director of Public Prosecutions in January 2011 in succession to Mr Ian McWalters, SC, who took up the appointment of Judge of the Court of First Instance of the High Court.

Mr Grenville Cross, SC, former Director of Public Prosecutions, and Mr Benedict Lai, Law Officer (Civil Law), were awarded the Silver Bauhinia Star in July 2010 and July 2011 respectively.

Four serving/retired Principal Government Counsel of the department were awarded the Bronze Bauhinia Star: Mrs May Tam and Mr Arthur Luk, SC, in July 2010, and Ms Lena Chi and Mr James O’Neil in July 2011.

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