After establishing the relevant mechanisms, we have not stopped in our tracks. We have been actively participating in and promoting professional exchanges between the Mainland and the Hong Kong legal sectors, so that we will remain “down-to-earth” and have a practical grasp of the implementation of the relevant mechanisms in both places, as well as the views and needs of the industry and other stakeholders.

Our colleague from the LEAD Office (Legal Enhancement and Development Office) earlier participated in a roundtable meeting co-organised by the Law Society of Hong Kong and the Guangdong Lawyers Association, under the theme of “Experience Sharing on the Implementation of Mutual Legal Assistance between the Mainland and Hong Kong on Cross-border Dispute Resolution”. Together with around 70 outstanding young lawyers from both Guangdong and Hong Kong, they conducted in-depth discussions and shared experiences on matters relating to the various mutual legal assistance arrangements between the Mainland and Hong Kong on civil and commercial matters, including the issues relating to the implementation of those arrangements in Hong Kong and the Mainland.

I am very pleased that the Law Society of Hong Kong and the Guangdong Lawyers Association have provided a valuable platform for the exchange of views on the actual operation of the relevant arrangements from the users’ perspective as well as on the room for further enhancement. For example, Hong Kong lawyers shared their experience on the interpretation of “choice of court agreement” by the Hong Kong court for the purpose of the Mainland Judgments (Reciprocal Enforcement) Ordinance. Mainland lawyers shared their experience on the service of Hong Kong legal documents in the Mainland and suggested to explore the extension of the scope of mutual legal assistance with the Mainland to pre-litigation preservation or interim measures. We place great importance on these constructive comments and will carefully study them and take appropriate follow-up action.

With the strong support of the Central Government, Hong Kong and the Mainland have so far concluded a total of nine arrangements on mutual legal assistance in civil and commercial matters, covering procedural assistance, arbitration matters, and mutual recognition and enforcement of judgments relating to matrimonial and family cases, bankruptcy or winding-up proceedings and other civil and commercial matters. This highly targeted yet comprehensive mutual legal assistance regime is one of the key contributing factors to Hong Kong’s unique competitiveness in legal and dispute resolution services, giving Hong Kong an advantage that is unavailable to other jurisdictions. The Department of Justice will spare no efforts in further consolidating and enhancing this edge.

In terms of future work, we will strive to bring into operation as soon as possible the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance, which was passed last year and would provide a more comprehensive regime for the mutual recognition and enforcement of civil and commercial judgments between the two places. Meanwhile, we will continue to maintain close communication with the legal industry and other stakeholders, listen attentively to their requests and suggestions, promote and optimise the operation of the relevant arrangements, so as to ensure we are responding proactively to people’s needs, stimulating the development of legal and dispute resolution services, facilitating the interface between the legal systems of the Mainland and Hong Kong and enhancing the rule of law.

Secretary for Justice, Paul Lam, SC

April 19, 2023

The National Security Law was made by the NPCSC, which is the permanent body of the NPC, which in turn is the highest organ of state of power under the constitution. Article 67(4) of the constitution provides that the NPCSC shall have the power to interpret laws. Such constitutional power is reaffirmed by Article 65 of the National Security Law. It is a linkage between the legal system of Hong Kong under the Basic Law and the constitution, as well as a fundamental aspect of the principle of “one country, two systems”.

The legislative interpretation by the NPCSC does not form part of the judicial proceedings of the Hong Kong courts. Hence, the independence of the Hong Kong judiciary will not be compromised because the Standing Committee exercises such power.

Whether overseas lawyers who are not qualified to practise generally in Hong Kong may be admitted ad hoc to act as legal representatives in cases involving national security is controversial. The interpretation provides guidance on how Hong Kong may resolve this issue by itself by using Articles 14 and 47 of the National Security Law.

First, it provides that the issue falls within the scope of Article 47. Under Article 47, the Hong Kong courts shall obtain a certificate from the chief executive to certify whether an act involves national security or whether the relevant evidence involves state secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.

Second, if the Hong Kong courts have not obtained such a certificate, the Committee for Safeguarding National Security shall assess and decide on the matter in accordance with its responsibilities under Article 14. Such decision shall have legal effect and is not subject to judicial review.

There is a similar provision to Article 47 of the National Security Law under Article 19 of the Basic Law. It states the courts shall obtain a certificate from the chief executive on questions of fact concerning acts of state such as defence and foreign affairs. They are not matters falling within the scope of the high degree of autonomy enjoyed by Hong Kong under Articles 13 and 14 of the Basic Law.

Similarly, Article 3 of the National Security Law provides that the central government has an overarching responsibility for national security affairs relating to Hong Kong. Owing to the inherent nature of matters concerning national security, the executive is in a better position than the judiciary to decide.

Whether overseas lawyers who are not qualified to practise in Hong Kong should be allowed to appear in cases involving national security might be an issue concerning national security because they do not have any substantial connection with Hong Kong and are less likely to be subject to effective control in accordance with Hong Kong law and professional regulations.

The certificate issued under Article 47 serves as a piece of evidence only, albeit conclusive, in the case before the court. It is still for the court to decide on other issues and the outcome of the case. The chief executive does not usurp the function of the court. The arrangement in this respect does not impair the independent judicial power of the Hong Kong courts.

The interpretation elaborates on what should be done if the courts have not obtained a certificate in situations falling under Article 47. In such events, the national security committee shall decide on the matter pursuant to Article 14.

Under Article 12 of the National Security Law, the committee shall assume primary responsibility for safeguarding national security in Hong Kong. Article 14 already provides that its decisions shall not be amenable to judicial review. Under common law, certain executive decisions are not justiciable by the courts because they are ill-equipped to review matters in relation to which they lack expertise such as assessment of national security.

The committee must act in accordance with the law and within the ambit of Article 14. Its duties and functions include formulating policies and advancing the development of the legal system and enforcement mechanisms for safeguarding national security in Hong Kong. It does not perform any judicial function or exercise any judicial power.

Pursuant to the interpretation, the committee will consider how to resolve the issue. There are suggestions the Legal Practitioners Ordinance should be amended so overseas counsel will no longer be entitled to apply for ad hoc admission to appear or participate in cases involving national security. Irrespective of what the committee’s decision might be, a party in cases involving national security still has the right to legal representation.

The interpretation does not touch upon any provision in the National Security Law other than Articles 14 and 47, or any provision in the Basic Law. In particular, Article 4 of National Security Law provides that the rights and freedoms guaranteed by the Basic Law and the provisions of the International Covenant on Civil and Political Rights shall be protected in accordance with the law.

Article 35 of the Basic Law provides that Hong Kong residents have the right to choose their lawyers, but such right simply means a person has a right to choose counsel who are available and qualified to practise in Hong Kong. They have no right to demand overseas counsel be admitted ad hoc to represent them.

Even under the existing law, they must obtain the permission of the courts, who will only grant it if stringent conditions are satisfied. In addition, the interpretation does not – and whatever decision made by the committee will not – concern overseas lawyers, who can still apply for ad hoc admission to represent parties in civil or criminal cases not involving national security.

The interpretation empowers Hong Kong to resolve the issue by itself in accordance with the National Security Law and discharge its constitutional duties to safeguard national security more effectively. It does not in any way impair the rule of law, including judicial independence and protection of fundamental human rights in Hong Kong.

On the contrary, bearing in mind that the top priority of one country, two systems is to safeguard national sovereignty, security and development interests, it ensures the principle advances in the right direction in a sound and sustained manner.

Secretary for Justice, Paul Lam, SC

December 31, 2022

Undoubtedly, the rule of law has always been the bedrock of Hong Kong’s success. To maintain and promote this core value is of crucial importance to Hong Kong. This is indeed one of the primary missions of me and my team in the Department of Justice.

Objective facts have proven that the rule of law in Hong Kong is well recognized. My personal experience has also rendered me to have full confidence in the rule of law in Hong Kong. That said, I will guard against complacency, and will not be oblivious to any weakness or shortcoming. I deeply appreciate that there are people who entertain doubts about the rule of law; and some of them even hold very different views from mine. In the hope of enhancing mutual understandings, I am going to listen patiently and carefully to different voices; and at the same time, express my stance concisely.

The rule of law is not, and should not be, a difficult and unfathomable concept that only few could understand. In short, it provides us with a fair and stable environment in which all of us will be able to live at ease and pursue our potentials. To build a society governed by the rule of law, one of the key requirements is the possession by the general public of a sense of community based on mutual respect, tolerance, willingness to compromise, and self-consciousness to abide by a common set of rules. We practise the rule of law by acts and moves in our daily lives; and to maintain the rule of law depends on each and every fellow citizen discharging his or her responsibilities in this respect. I sincerely invite you all to work together, and to make our home, Hong Kong, a better place.

Secretary for Justice, Paul Lam, SC

July 03, 2022

As pointed out by the Secretary for Justice in his blog today, the rule of law has always been the bedrock of Hong Kong’s success. This core value is of utmost importance to the future of Hong Kong.

Under the leadership of the Secretary for Justice, I shall, together with the team of the Department of Justice, spare no efforts in upholding Hong Kong’s rule of law.

Since the return of Hong Kong to the motherland, the Basic Law protects the rights and freedoms of Hong Kong residents and protects the independent judiciary and final adjudication. Facts speak louder than words. Hong Kong has been ranked high as the world's No. 19 in the rule of law, followed by many countries in Europe and America.

Noting that some people in the society have doubts or even queries about the rule of law of Hong Kong, I shall dedicate myself to assist the Secretary for Justice in expressing our stance in a clear and concise manner to enable local and international communities to have better understanding of the real situation of the city, clearing up the confusion.

Let’s join hands together to uphold the rule of law. Let’s build a fair society governed by the rule of law, and a community based on mutual respect, tolerance and self-consciousness to abide by laws.

Deputy Secretary for Justice, Cheung Kwok-kwan

July 03, 2022

With the unwavering support of our country, the HKSAR has been actively participating in the work of international organisations since July 1, 1997. Legal systems in countries around the world generally fall into one of the two main categories: common law system or civil law system. China has the advantage of having both of them. Being the only common law jurisdiction in our country, Hong Kong can offer advice from the perspective of the common law system, helping to form a more holistic view for the country’s participation in the development of international law. As one of the national team players, we strive to contribute to our country’s active and effective participation in the formulation of international rules in major international issues.

Since the establishment of the HKSAR, we have been taking part in the Friends of the Chair group on Strengthening Economic and Legal Infrastructure under the Asia-Pacific Economic Cooperation (APEC) Economic Committee in the capacity of “Hong Kong, China”. In September 2019, the Commissioner of the Inclusive Dispute Avoidance and Resolution (IDAR) Office of the DoJ was appointed as the Chair of the APEC Economic Committee to promote structural reform and strengthen APEC’s capability in the analysis of long-term macroeconomic trends and studies of microeconomic issues.

Nurturing legal talents through training is DoJ’s policy objective whilst secondment to international organisations is one of our key initiatives to accomplish the objective. With the full support from our country, the DoJ has achieved remarkable results in concluding secondment arrangements with three major international organisations, namely the Hague Conference on Private International Law (HCCH), the International Institute for the Unification of Private Law (UNIDROIT) and the United Nations Commission on International Trade Law (UNCITRAL). Legal practitioners from the private sector are also able to join the secondment to the HCCH and the UNIDROIT. The secondment helps nurture legal talents by developing their global perspective and proficiency in international regulations and also instilling in them a sense of national identity and an affection for Hong Kong. Through participating in the work of international conventions, they can personally experience the evolution of international law.

The AALCO Hong Kong Regional Arbitration Centre has already been established whilst the HCCH and the DoJ Project Office for Collaboration with UNCITRAL have set up offices in the Hong Kong Legal Hub. The UNIDROIT is also planning to establish its office here in the near future. These three international organisations have been playing a leading role in private international law. Their presence in Hong Kong facilitates more exchanges and provides opportunity for legal practitioners to develop their expertise in this area of law. This also further strengthens Hong Kong’s status as an international legal and dispute resolution centre.

Article 13 (1) of the Basic Law expressly provides that the Central People’s Government shall be responsible for the foreign affairs relating to the HKSAR. Whilst matters concerning foreign affairs fall squarely within the purview of the Central Authorities, the HKSAR has been authorised to conduct relevant external affairs on its own in accordance with the Basic Law under this context. The HKSAR must obtain the approval of the Central People’s Government to conclude agreements with foreign states and regions. Since July 1, 1997, the HKSAR has, in accordance with the powers granted by the Central Authorities and the Basic Law, entered into more than 600 bilateral agreements and arrangements with the Mainland and other jurisdictions covering free trade, taxation, investment promotion and protection, civil aviation and mutual legal assistance, reinforcing our status internationally and facilitating the growth of our legal industry.

In the past four years, I am honoured to be appointed as the Secretary for Justice and have the privilege of working with an excellent team, serving the community together without fear or favour. Over the years, I am grateful for the trust and support of our country, allowing us to conclude ground-breaking arrangements with the Mainland and co-operations with legal department of various jurisdictions as well as international organisations. I was also deeply moved by the unfailing care from the Central Government after I was attacked in London. With the strong backing from our country, I have every confidence that we can overcome all the challenges, building a bright future. In less than a week, the new Secretary and his deputy will take office, I wish them the very best in the journey of upholding the rule of law and leveraging on the advantages under “one country, two systems” with the legal sector in contributing to the stability and prosperity of our country and our city.

June 25, 2022

AALCO Hong Kong Regional Arbitration Centre

The Asian-African Legal Consultative Organization (AALCO) held its annual session in Hong Kong last November and announced the establishment of the AALCO Hong Kong Regional Arbitration Centre, demonstrating the trust of our country and AALCO’s confidence in Hong Kong’s arbitral service. Action steps were then taken to bring the centre into operation. In six months’ time, the Regional Arbitration Centre was officially opened on May 25 with the full support from our country and the concerted effort by the DoJ.

AALCO is the only inter-governmental legal consultative organisation in the Asian and African regions. Regional arbitration centres under its auspices have been established in Malaysia, Egypt, Nigeria, Iran and Kenya to develop institutional arbitration and promote international commercial arbitration in both regions, and to render assistance in arbitrations. I am truly grateful to AALCO and the Central People’s Government for their agreement on the establishment of the sixth regional arbitration centre in Hong Kong, China. It is not only the honour of the city, but also conducive to the promotion and development of alternative dispute resolution (in particular online dispute resolution) services in Hong Kong and in the regions, reinforcing our role as an international legal and dispute resolution centre.

Vision 2030 for Rule of Law International Symposium

The Vision 2030 for Rule of Law International Symposium was held on May 26. Judge Xue Hanqin of the International Court of Justice and the Chairman of the Asian Peace and Reconciliation Council and former Deputy Prime Minister of Thailand, Professor Surakiart Sathirathai, delivered their keynote speeches at the Symposium, and eminent speakers from around the world discussed and exchanged views on issues related to the rule of law. Their discussions enabled us to gain a deeper understanding of the rule of law, while the message of building and maintaining more equal and inclusive societies for a sustainable future in the region and beyond could be widely spread.

The Vision 2030 Task Force Report was launched at the finale of the Symposium. The 10-year “Vision 2030 for Rule of Law” initiative was formally rolled out in 2020, with a view to building and maintaining a fair and rule-based society underpinned by the rule of law towards sustainable development for all. The Report details the intensive work of the Task Force and the DoJ since the launch of the Vision 2030, including the identification of the “basic fundamentals” of the practice of the rule of law and the recommendation of seven indicators that form the “common denominators” to be used as the starting point for formulating an objective methodology to review the practice of rule of law: (1) judicial independence; (2) equality before the law and protection of the right to non-discrimination; (3) accessibility of laws; (4) efficacy of civil and criminal proceedings and dispute resolution system; (5) prevention of corruption; (6) prevention of abuse of government power; and (7) fundamental human rights.

The DoJ will follow up on the recommendations in the report and collect relevant data for analysis so as to objectively review the practice of the rule of law. We will consider sharing the data with other jurisdictions in a bid to jointly promote the rule of law.

My wholehearted thanks go to the Task Force members, who unreservedly gave us their invaluable advice and guidance on how to promote the proper understanding and recognition of the rule of law at regional and international levels.

MoU with UNIDROIT

On May 27, President of the International Institute for the Unification of Private Law (UNIDROIT), Professor Maria Chiara Malaguti, and I signed the memorandum of understanding (MoU) for the administrative arrangements for collaboration relating to private international law and international commercial law at a virtual signing ceremony, which aims to strengthen the co-operation between the two parties in the field of private international law. Under the MoU, the DoJ and UNIDROIT will be jointly launching the inaugural Asia-Pacific Private International Law Summit in Hong Kong in November this year as one of the flagship events of Hong Kong Legal Week 2022.

This is the second MoU concluded between the DoJ and UNIDROIT, following the one in May 2021, which put in place the arrangements for the secondment of Hong Kong legal professionals to the Secretariat of UNIDROIT. I am delighted to hear from Professor Malaguti that the two secondees have been displaying exemplary performance. They showcase to the international community that Hong Kong has a pool of high-calibre legal talents.

The DoJ will continue to enhance its efforts in nurturing legal talents with international perspective, good understanding of international regulations and strong national identity, thereby contributing to the building up of the rule of law in our country, safeguarding national sovereignty, security, and development interests in accordance with the law.

President Xi once said, as a responsible major country participating in international affairs, China must practise well the rule of law, adding that it is necessary to make friends and collaborate, as well as to let China’s perspective be taken into account in major international issues. The practice of genuine multilateralism is important and we must stick to using dialogue rather than confrontation, embrace inclusiveness rather than exclusion.

Over the 25 years, the Hong Kong Special Administrative Region has been leveraging on the unique advantage under the “one country, two systems” in the international legal community. Looking ahead, the DoJ will continue its efforts to actively participate in the development of international law in the capacity of Hong Kong, China and contribute to the development of the rule of law in the international community whilst consolidating Hong Kong as the centre for international legal and dispute resolution services in the Asia-Pacific region.

June 09, 2022

“Stability to Prosperity”

Riding on the success of the legal forum “Back to Basics” in 2020, we held the second Basic Law legal conference – “Stability to Prosperity” on May 27. Chairperson of the Basic Law Committee of the HKSAR of the Standing Committee of the National People’s Congress, Mr Shen Chun-yao in his keynote speech elucidated the essence of “one country, two systems”, which is a well-considered and long-term policy of our country, whilst the Basic Law is a national law institutionalizing “one country, two systems”. He said that the Basic Law has been fully implemented in Hong Kong for 25 years. As to what will happen after another 25 years, Mr Shen quoted Mr Deng Xiaoping as stating that 50 years was “just a figure of speech”, and “for the first 50 years it cannot be changed, and after that, it would not be necessary to change”.

At the conference, Vice-chairperson of the Basic Law Committee of the HKSAR of the Standing Committee of the National People’s Congress Ms Maria Tam and I have a meaningful dialogue on the fundamental concept of the “one country, two systems” and the Basic Law. I explained that the power of the Standing Committee of the National People’s Congress (NPCSC) in interpreting the Basic Law in accordance with Article 158 is consistent with the constitutional order of the HKSAR. It is also in line with the power exercised by the NPCSC under the Constitution in interpreting laws and overseeing the enforcement of the Constitution, signifying that the National People’s Congress is the highest power organ in our country. Maria offered an explanation on the difference between judicial interpretation and legislative interpretation, adding that the power of NPCSC in interpreting the Basic Law does not affect judicial independence in Hong Kong whilst the power of final adjudication is still vested in the Court of Final Appeal of the HKSAR. The power of interpreting law is to ensure the consistency of laws across the country.

Former Permanent Judge of the Court of Final Appeal, Mr Justice Litton, expressed his views on the interpretation of the Basic Law in his thematic speech. He stressed that the Basic Law is a legal instrument adapted to the circumstances of Hong Kong under the principle of “one country, two systems”. When a real issue arises as to the meaning of a provision in the Basic Law, the inquiry should focus on the purpose of that provision. Citing the “Ding Rights” ([2021] HKCFA 38) case as an example, Mr Justice Litton said that the Court of Final Appeal approached this issue by going into the historical background which gave rise to that provision. There was no citation of overseas cases and no invocation of European human rights jurisprudence.

Various speakers at the penal discussions explained how the joint force of the enactment of the National Security Law and the improvement of the electoral system, through NPC’s Decision and amendment to Annexes I and II to the Basic Law, safeguards our political security and has consolidated our basics by strengthening the premise of “one country”. They also shared their views on the way which the HKSAR thrives as an international financial centre under the safeguards provided for by the Basic Law.

One of the themes of the panel discussion is to explore why the common law is so important to Hong Kong’s position as an international commercial and financial centre. The speakers pointed out that the common law, while following case precedents, is flexible and can adapt to evolving circumstances through judge-made law. In addition, judicial independence is constitutionally guaranteed under the Basic Law. They all agreed that the common law is the bedrock of Hong Kong’s success. Non-Permanent Judge of the Court of Final Appeal, Mr Justice Patrick Chan, reaffirmed that judicial independence remains solid and robust by sharing his first-hand experience that he has never been interfered in his more than 30-year tenure serving as a judge, signifying that the independence of the Judiciary is constitutionally protected by the Basic Law.

Speakers from the business and financial sectors at the panel discussions also explored why Hong Kong has continued to attract investors from all over the world to do business in Hong Kong and make Hong Kong their home with which various provisions of the Basic Law act as constitutional safeguards to Hong Kong’s free economy. Renowned businessman Mr Allan Zeman in his conclusion took the view that the steadfast implementation of the Basic Law and the National Security Law has brought stability to our society, reinforcing confidence of the business sector in Hong Kong’s continued success and prosper.

“Thrive with security”

The National Security Law is the major turning point in the HKSAR’s transition from chaos to order, embarking on a new chapter towards “governance and prosperity”. On the second anniversary of the “5.28 Decision” (note), gvernment officials from the Mainland and the HKSAR, legal experts and academics gathered together to review the progress achieved by the National Security Law and explored frontier issues, as well as looked ahead the further refinement of the legal framework for safeguarding national security in the HKSAR.

Speakers shared the views that the HKSAR has a constitutional responsibility to complete the legislation of Article 23 of the Basic Law as soon as practicable in order to improve the legal system and enforcement mechanisms to safeguard the national security. The importance of maintaining a holistic view of national security was emphasized with political security on top of the priority. In additional to traditional security issues, the holistic view of national security also covers frontier key areas such as economic security, cultural security, cyber security, etc. They had an in-depth discussion on both domestic and overseas laws and practices to address the emerging security areas such as financial services sector and internet industry.

At the panel sessions, the speakers compared cases relating to the National Security Law and foreign cases on national security, and explored various topics such as the jury system and investigative powers in national security cases as well as ways to refine the legal framework on safeguarding national security.

The Financial Secretary in his closing remarks reiterated that Hong Kong remains an international financial centre as the figures speak for themselves. Since the implementation of the National Security Law, the amount of funds raised through initial public offerings in Hong Kong exceeded HK$650 billion, an increase of over 30% compared with the same period before the implementation; assets under management by our asset and wealth management industry amounted to around HK$34.9 trillion as at end-2020, registering a growth of 20% over the amount before the law was implemented; the total deposits in the Hong Kong banking system reached HK$15.3 trillion recently, an increase of about 11% compared with that prior to the implementation of the law. He concluded that the National Security Law provides safeguards to the implementation of “one country, two systems”, which is the cornerstone of the stability and prosperity of Hong Kong.

To ensure the steadfast implementation of the “one country, two systems, it must be borne in mind that “one country” is like the roots of a tree. For a tree to grow tall and luxuriant, its roots must run deep and strong. The HKSAR can only capitalize on its unique position under “two systems”, utilize strengths, and contribute to our country if an accurate understanding of the relationship between the Constitution and the Basic Law as well as a proper concept of national security is nurtured. You are most welcome to review the conferences to comprehend the proper concepts by visiting the Hong Kong Legal Hub website.

Note: The Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for the HKSAR to Safeguard National Security.

June 02, 2022

In this regard, I am glad to share with you the good news that eBRAM International Online Dispute Resolution Centre (eBRAM Centre) has been listed as one of the providers for the APEC Collaborative Framework for Online Dispute Resolution of Cross-Border Business-to-Business Disputes (APEC ODR Framework).

In August 2019, the APEC Economic Committee endorsed the APEC ODR Framework and model procedural rules, with micro, small and medium-sized enterprises (MSMEs) as the major beneficiary. The APEC ODR Framework promotes the use of ODR by global enterprises (MSMEs in particular) to resolve low-value cross-border disputes. Hong Kong, China has opted into the APEC ODR Framework in April 2020.

Representatives from Hong Kong, including experts from eBRAM Centre have been participating actively in the work under the APEC ODR Framework such as various APEC workshops and webinars as well as the APEC Economic Committee meetings.

In June 2021, the eBRAM Centre launched the APEC ODR procedural rules tailor-made for the APEC ODR Framework, which aims to provide a fast and affordable resort to commercial disputes among the APEC economies to MSMEs through the use of electronic communications and other information technologies. In February 2022, the eBRAM Centre indicated to the APEC its commitment to become an ODR service provider for APEC economies and certified its compliance with the APEC ODR Framework and its Model Procedural Rules.

Earlier this month, the eBRAM Centre has been officially listed by APEC on its website as one of the very first batch of ODR service providers under the APEC ODR Framework.

This encouraging international development, together with the ongoing work undertaken by the Inclusive Global Legal Innovation Platform on ODR (iGLP on ODR) with support by the DoJ Project Office in Collaboration with UNCITRAL, would further contribute to the international development and usage of ODR, which will, at the same time, strengthen the position of Hong Kong as a leading international dispute resolution centre.

May 15, 2022

The theme of this year’s Mediation Week is “Mediate First – Harmony from Now to Beyond”. The events will showcase how mediation can preserve harmony in dispute resolution in different sectors both locally and internationally, and its potentials in resolving disputes in novel developments such as virtual reality.

To kick off the Mediation Week, we have a group of young aspiring mediators who will display their mediation skills under the Secondary School Peer Mediation Competition. I believe that the culture of mediation should be nurtured amongst students in order to let them appreciate the importance and the usefulness of mediation skills as life skills. Mastering the skills of resolving conflicts cordially is also vital to maintain their personal relationships and ultimately contribute to the building of a harmonious community.

On a more local level, there are thematic events exploring how mediation can be applicable in family disputes, as well as in the school and medical setting. There will also be a seminar on the new Integrated Mediation Office (West Kowloon) of the Judiciary with a sharing session on mediation in Small Claims Tribunal cases.

On an international level, the UNCITRAL Working Group III on ISDS Reform - Forum for Further Preparatory Work on Investment Mediation will explore specific key issues relating to the proposed model clauses and guidelines on investment mediation.

The Mediation Conference 2022, being the highlight of the Mediation Week and a celebration event of the 25th Anniversary of the Establishment of the HKSAR, will be held on May 6. We are honoured to have invited prominent international and local experts and practitioners to share their insights on the recent developments of mediation. The Conference will cover topics including exploring the possibility of a reciprocal recognition and enforcement mechanism for family mediated settlement agreements in the Greater Bay Area in light of the mechanism under the new Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance. Panelists will explore how and why mediation may be the better way to resolve COVID-19 related disputes. Last but not least, we will also take a glance at the “metaverse”, which has been the talk of the town these few years, by illustrating the possible legal issues behind, what may cause disputes to arise and how mediation may be the most suited means for resolving such disputes.

As an amicable and cost-effective means to effectively resolve conflicts, mediation is one of the common modes of alternative dispute resolution. It is conducive to the promotion of the rule of law through the provision of efficient and effective dispute resolution mechanisms. We will continue to roll out other programmes to promote the rule of law, including the Rule of Law Enlightenment programme under the Vision 2030 for Rule of Law initiative. I am pleased to announce that a very special guest will join us at the award presentation ceremony of the “Key to the Future” Short Video Competition for secondary school students on May 7. Please follow our dedicated webpage and stay tuned!

April 30, 2022

Our criminal justice system plays a pivotal role by ensuring that crimes are effectively detected and investigated, and criminal cases are handled impartially and efficiently, whilst protecting the rights of all parties involved in the process. Recently there have been groundless criticisms against our criminal justice system, I would like to take this opportunity to set the record straight.

Charges of offences endangering national security not vague

Baseless allegations of “vague charges” of offences under the National Security Law (NSL) or other offences endangering national security under local laws have been made. As pointed out on various occasions, the NSL clearly specifies the elements of each offence, including the requisite acts (actus reus) and intent (mens rea). Under the common law system, the courts may further clarify the elements of an offence in adjudicating cases. For instance, in the Tong Ying Kit case¹, the Court of First Instance has explained the elements of the offences of incitement to secession and terrorist activities. The court’s reasons for verdict are freely accessible online.

Besides, in our criminal justice system, there are avenues for defendants to request further and better particulars of a charge and to complain about defects of a charge². All procedural challenges will be duly considered and adjudicated fairly by the court.

Reporting restrictions in respect of pre-trial proceedings such as bail proceedings and committal proceedings are in place under existing laws (such as the Criminal Procedure Ordinance and the Magistrates Ordinance) to safeguard the fairness and integrity of the eventual trial. Notwithstanding the reporting restrictions, the relevant proceedings are nevertheless conducted in open court which members of the public and the media may attend and observe. Defendants may apply to the court for lifting of the reporting restrictions, which will be considered and adjudicated by the court, striking a balance between the defendants’ rights and other aspects of the public interest including that of a fair trial.

Bail application in cases concerning offences endangering national security handled fairly

In respect of bail, the Court of Final Appeal in the Lai Chee Ying case stressed the cardinal importance of the primary purpose of the NSL, which explains why there are more stringent conditions to the grant of bail in relation to offences endangering national security. The court also took the view that decisions as to whether or not to grant bail, involving a predictive and evaluative exercise, are a “juridical exercise carried out by the court as an exercise in judgment or evaluation, not the application of a burden of proof”³.

There are other common law jurisdictions (such as Canada, South Africa and Australia) where, in respect of certain classes of offences, not only is there no burden of proof on the prosecution to establish grounds for refusing bail, but a burden is placed on the accused to establish why continued detention, rather than release on bail, is not justified⁴. Furthermore, in some jurisdictions, the executive authorities are vested with powers to impose detention for long periods without charge in order to prevent acts endangering national security. For instance, the Internal Security Act of Singapore creates substantial executive powers for the President to authorize detention without charge for a period of up to two years (which is renewable) on grounds of national security. This rules out bail completely, too. Judicial review of such decisions taken under the Act is precluded except only to ensure compliance with procedural requirements.

Contrary to the general misinformation that defendants charged with offences endangering national security are all denied bail because of the NSL, it is a matter of fact that a number of defendants have been released on bail after the courts duly considered the requirements stipulated in the NSL and relevant local laws. For example, as reported by the media, some defendants, including former legislators, who were charged with conspiracy to commit subversion are currently released on court bail⁵.

Law enforcement powers exercised in accordance with law

In discharging duties, law enforcement authorities are authorized to exercise certain powers in order to facilitate their investigations. For example, they may apply to the court to obtain production orders or restraint orders under the Organized and Serious Crimes Ordinance for the purposes of investigating into an organized crime or preventing dissipation of property by criminal suspects. Such orders may be made on an ex parte application to a judge in chambers. The ex parte procedure for authorization of investigatory powers is necessary so as to prevent suspects from destroying evidence, dissipating proceeds of crime or committing other acts to obstruct investigation or pervert the course of justice, and is a common practice in many jurisdictions. There are provisions in the Implementation Rules for Article 43 of the NSL to enable the law enforcement authorities to take similar measures when handling cases concerning offence endangering national security. Nonetheless, our criminal justice system allows a party who is affected by the court order to apply to have it set aside or varied. The court, having reviewed all evidence, will adjudicate strictly in accordance with the applicable law in an impartial manner.

Trials held in timely manner

Generally speaking, a criminal case will first be brought up in a Magistrates’ Court after a charge has been laid. In the majority of cases, at the first appearance, the prosecution will ask for no plea to be taken because further investigation by the law enforcement authorities or other preparations for the case is required. When no plea is taken, the case will be adjourned for further hearing(s) until the parties inform the court that it is ready to proceed to trial.

The Department of Justice (DoJ) maintains close contact with the law enforcement authorities to ensure that cases are handled expeditiously and effectively. We will proactively explore and follow up on ways to expedite case management, such as seeking consolidation of cases where facts and evidence permit, agreeing on facts and evidence with the defence before trial as far as possible to reduce the number of witnesses to be called and hence, the length of trial.

However, it should be noted that the time taken between the institution of prosecution and the trial of each case depends on a multitude of factors, such as whether further investigation is required, whether the defendant needs time to obtain legal advice for consideration of his/her plea and to engage in plea negotiation with the prosecution, whether the defence requires certification of translated documents or makes any pre-trial application such as applications for further and better particulars, disclosure, lifting of reporting restrictions, severance of case with multiple defendants, preliminary inquiry, discharge, etc. It must be stressed that all applications are handled in accordance with established procedures and due process fully observed. If a defendant, upon legal advice or otherwise, decides to make every possible procedural application irrespective of merits, he/she cannot at the same time conjure any complaint about “delay” which is only the natural consequence of exercising his/her entitlements to the fullest possible extent in a fair criminal justice system.

Duty of counsel

As guaranteed by the law, Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Meanwhile, our legal fraternity (including overseas admitted to full practice in Hong Kong) shoulders the primary responsibility for upholding the rule of law by performing their duty professionally whilst observing the rules of professional conduct.

In carrying out their duty, the personal safety of legal practitioners, like all other individuals, is well protected by law. This fundamental safeguard ensures that they should act professionally without fear or favour. Party in a litigation or their legal representatives, in the event of being intimidated, should report to the police with all the available evidence. Needless to say, one must refrain from knowingly deceiving or misleading the court or the police or indeed the public by false accusations, as such conduct not only harms the reputation of the legal profession the individual belongs, but may risk breaching the law.

Conclusion

Hong Kong is renowned for having a fair and mature criminal justice system. Our legislation is drafted with clarity and certainty, complemented by reasoned judgments to develop a respected jurisprudence. Legal principles and procedures in respect of granting bail and other court orders are clearly set out in our laws and duly followed in court. Defendants are entitled to exercise their rights in making procedural applications which, although possibly prolonging legal proceedings, is a price that will have to be paid so that the defendants’ choice of exercising their legitimate rights are respected and protected. Having said that, the DoJ has taken every possible measure with a view to expediting the prosecution process and ensuring justice is served. Hence, suggestions that there are “vague charges”, that no defendants are granted bail, or that the “delays” in trial were caused by the prosecution are plainly unsustainable once the actual facts are reviewed.

The principle of prosecutorial independence by the DoJ is constitutionally guaranteed. Article 63 of the Basic Law stipulates that the department “shall control criminal prosecutions, free from any interference”. Not only our prosecutors act independently, I trust all members of the legal fraternity would discharge their duties professionally and honestly without fear or favour, and to uphold the fair and independent criminal justice system.

¹ HKSAR v Tong Ying Kit [2021] HKCFI 2200

² See rule 3 of the Indictment Rules (Cap. 221C) which provides that “every indictment shall contain …such particulars as may be necessary for giving reasonable information as to the nature of the charge”, and “a judge may order further particulars of an offence stated in an indictment to be delivered in any case in which he deems it expedient to do so”.

³ HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, [2021] HKCFA 3, at paras. 62 and 68.

⁴ See the examples mentioned in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, [2021] HKCFA 3, at para. 69.

⁵ For example, see HCCP 113/2021 and HCCP 473/2021.

April 15, 2022

I am most grateful to the Central People’s Government, the HCCH and the UNIDROIT for their staunch support to the arrangements.

The HCCH is committed to working for the progressive unification of the private international law rules, finding internationally-agreed approaches in a wide range of areas, such as international civil procedure, commercial law, banking law, child protection, marriage and personal status. The UNIDROIT’s mandate is to study the needs and methods for modernizing, harmonizing and coordinating private and in particular commercial law among countries in areas such as security interests, capital markets, commercial contracts, international sales and civil procedure. The HCCH and the UNIDROIT have been playing a leading role in these areas of law.

The secondment programmes provide invaluable opportunities to Hong Kong legal professionals to work in a multi-cultural environment with colleagues coming from diverse lingual and legal traditions. They could gain top-notch experience in issues in private international law and broaden their horizons through collaborating with international law experts from different parts of the world. They could also experience the global development of international law by participating in the formulation and negotiations of international conventions or instruments.

I hope legal professionals in both public and private sectors will seize this great opportunity. I also trust law firms and barristers’ chambers would continue to encourage their young legal practitioners to apply for the secondment. They will not only benefit from the professional experience and exposure in the work of these organisations, thereby enhancing their future career development, but also contribute to the reinforcement and sustainability of the HKSAR as a leading centre for international legal and dispute resolution services. At the same time, I wish they could also show a full picture about Hong Kong to the international community.

In the last secondment, for the very first time we have two practitioners from the private sector joining the HCCH and the UNIDROIT. I am glad to know that they benefited a lot from this unique experience. Let me share with you what Beryl and Amelia said about the programmes:

Miss Beryl Wu, Associate, Addleshaw Goddard (HK) LLP and secondee to HCCH: “This secondment is a once-in-a-life time opportunity for me. Not only can I personally witness and participate in the Working Group meetings of international conventions and the CGAP meeting, but also understand more about the work of the HCCH and how international conventions are negotiated and drafted. Thanks to the secondment program, I have also made new friends from different backgrounds and cultures in the HCCH.”

Miss Amelia Lo, Associate, Li & Partners and secondee to UNIDROIT: “I am really honoured to be selected for this unique opportunity to learn more about international law and work in an international organisation. Such an opportunity is both invaluable and meaningful. It is also a great opportunity for personal growth and allows one to contribute back to society.”

Successful applicants will spend about six to 12 months at the HCCH in The Hague or the UNIDROIT in Rome, as the case may be. With contributions from the HKSAR Government, successful applicants from the private sector will receive a monthly allowance from the relevant international organization. For those who are interested in the programmes, please visit our dedicated webpage for further details and application procedures.

April 11, 2022

In Hong Kong, judicial independence is constitutionally guaranteed by the Basic Law. Articles 2, 19 and 85 of the Basic Law expressly provide that an independent judicial power, including that of final adjudication, is exercised by the Judiciary, free from any interference. Judges enjoy security of tenure and immunity from legal action in the performance of their judicial functions, and can only be removed for inability to discharge duties or for misbehavior as set out in Article 89. These safeguards ensure that our judges, who took the judicial oath upon their appointments, administer justice without fear or favour and without bias, based only on the law and evidence before them.

The appointment process also forms an integral part of the solid infrastructure. As set out in Article 92 of the Basic Law, the only criteria upon which judges are appointed is their judicial and professional quality, and their appointment by the Chief Executive is based on the recommendation of an independent statutory commission comprising nine members including three eminent and respected members in society not connected with the practice of law. Article 92 also stipulates that judges may be recruited from other common law jurisdictions. Hence, unusually, there is no nationality requirement for judges of all levels of courts. There is also no political vetting in the judicial appointment process.

Following the enactment of the National Security Law on June 30, 2020, there have been unfair criticisms with regard to the formation of a list of designated judges who handle cases of endangering national security. Some even falsely claim that the Chief Executive could handpick judges to preside over national security cases. These accusations are not only baseless but also factually incorrect. First of all, the designation of judges by the Chief Executive only establishes a list or panel of judges for dealing with national security cases.

Secondly, the listing and handling of cases, as well as the assignment of which judge or judges are to handle cases have always been judicial functions to be exercised by the Judiciary independently.

Thirdly, it is not uncommon for courts to designate specialist judges dealing with a particular area of law. In Hong Kong, there are judges who are in charge of construction and arbitration list, commercial and admiralty lists, etc. Similarly, the English courts also have specialised divisions with specialist judges dealing with, for instance, commercial and admiralty matters. Through the provision of specialist judges who are more familiar with a particular area of law, there is a better chance to achieve predictability and certainty of law. This will also reduce the risk of erroneous or arbitrary application of law. All in all, it is conducive to the rule of law.

Contrary to the inaccurate statements questioning the independence and impartiality of designated judges, a designated judge would decide cases independently and impartially. In other words, they are free to decide a case based only on applicable law and admissible evidence, free from any interference. A judge should have an open-mind and remain impartial, not influenced by any extraneous matters or personal interest. The practice of this can be seen in the judgments delivered by the courts setting out the full reasons for arriving at the decision.

The practice of open court hearings and judgments with reasons demonstrate to all objective and fair-minded observers that transparency and due process are observed with judicial independence honoured. If I may quote what the Chief Justice of the Court of Final Appeal said at the Ceremonial Opening of the Legal Year 2022: “For those who are interested in finding out how the constitutional guarantee on judicial independence in Hong Kong is practised on the ground, our court hearings are open to the public, our judicial decisions are publicly announced, and the courts’ reasons are published for everyone to study”.

The constitutional bedrock upon which our judicial independence is premised will not be shaken. With a strong, robust and professional legal fraternity, our judicial system will continue to remain intact and robust. Whatever happens, it lies in all of us here in Hong Kong to ensure that the bedrock is preserved and judicial independence is honoured.

March 30, 2022

Mr Xia has reiterated the unequivocal support and stern determination repeatedly expressed by President Xi Jinping and various leaders of the Central People’s Government over the implementation of “one country, two systems”. His remarks were also justified and informed. First of all, Article 5 of the Basic Law guarantees that Hong Kong shall retain the capitalist system and way of life for 50 years. It does not mean that this will cease thereafter. Secondly, as a matter of common sense, if “one country, two systems” functions effectively and serves our country and Hong Kong well, there is no reason for it to change. Thirdly, as can be seen in the discussions surrounding the formulation and implementation of “one country, two systems”, and as stated by Mr Deng Xiaoping, 50 years was just “a figure of speech”, and “for the first 50 years it cannot be changed, and after that, it would not be necessary to change”.

Under the “one country, two systems”, Hong Kong’s capitalist system, supported by the common law, has been working smoothly. The common law also provides a solid foundation for implementing one of the fundamental purposes of the Basic Law - to maintain the prosperity and stability of Hong Kong. One of the major advantages of the common law is that it is largely doctrinal but capable of adapting to societal values and changing circumstances, thus providing certainty and predictability and yet also flexible to deal with business changing needs by creating a favourable environment. Hong Kong is the only jurisdiction in the world that has a truly bilingual common law system, English and Chinese, and is the only common law jurisdiction in our country. It is in the best interest to leverage on the advantages of the common law to contribute to the development of Hong Kong and our nation.

The original aspiration of the “one country, two systems”, as set out in the preamble of the Basic Law, is upholding national unity and territorial integrity, and maintaining the prosperity and stability of Hong Kong. If we are able to uphold, honour and respect the fundamental precondition of “one country”, the two systems underpinned by the common law would continue, facilitating our integration into the national development.

To stabilise the pandemic is the overriding mission at present, we should remain vigilant in adopting the control measures and get vaccinated as soon as possible. With our concerted efforts, the pandemic would be brought under control. Owing to the current situation, the Basic Law Legal Summit “Stability to Prosperity” has now been postponed to the end of May. I look forward to welcoming all the speakers and guests to attend in person, jointly celebrating the 25th anniversary of Hong Kong’s return to the Motherland.

March 09, 2022

REJ Arrangement

Since Hong Kong’s return to the motherland, we have signed nine arrangements on mutual legal assistance in civil and commercial matters. I am honoured to have represented the DoJ in signing four of these arrangements with the Supreme People’s Court in the past three years, including the REJ Arrangement. To date, eight arrangements have already come into force. In order to provide a broad coverage of mutual legal assistance in the areas of civil and commercial matters between the Mainland and Hong Kong, one of our top priorities is to strive for the swift implementation of the remaining REJ Arrangement. This Arrangement will provide better legal safeguards to residents of both the Mainland and Hong Kong in the process of economic development, further facilitating Hong Kong’s integration into the overall development of our country.

Implementing the REJ Arrangement will greatly reduce the need to re-litigate in the courts of the Mainland and Hong Kong to enforce a judgment since the arrangement will provide a simple pro-enforcement mechanism while ensuring that due process has been observed in the place of the trial. By leveraging on the advantages under “one country two systems”, we have also expanded the scope of application of the REJ Arrangement by covering contractual and tortious disputes, which goes beyond the Hague Judgments Convention¹. This signifies the unwavering support of our country in establishing Hong Kong as the centre for international legal and dispute resolution services in the Asia-Pacific region. We plan to table the legislative proposal to the LegCo in the second quarter of 2022.

ORFSA

The Law Reform Commission’s recent report on the ORFSA recommended that the law in Hong Kong be amended to lift the prohibitions on the use of outcome related fee structures by lawyers in arbitration (which are not applicable to other Hong Kong court proceedings) taking place in and outside Hong Kong. It aims to enhance our competitiveness in arbitration by allowing us to offer what our competitors in other jurisdictions have already done. At the same time, it will also improve access to justice and respond to increasing client demand for pricing and fee flexibility, reinforcing our status as a leading arbitration centre.

Implementing the ORFSA requires amendments to two pieces of legislation, which will be submitted to LegCo by the first quarter of 2022.

At the video conferences, I was pleased to respond to the queries raised by the members and explained to them how these initiatives will enable practitioners to capitalise on their expertise in the international arena. We expect that more deals will be concluded between the Mainland and Hong Kong, thereby enhancing our competitiveness as a regional centre for legal, deal-making, and dispute resolution services. By briefly introducing support measures for small and medium-sized enterprises and policies on the development in the Greater Bay Area (GBA) as mentioned in the Budget, explanations were given to members that these measures will not only benefit small and medium-sized law firms and barristers’ chambers, but also open up great opportunities for the legal and dispute resolution sectors to expand their business to the GBA.

Looking ahead, the DoJ will continue to roll out various programmes under the Vision 2030 for Rule of Law initiative, including rule of law education. Active steps have also been taken to bring the AALCO (Asian-African Legal Consultative Organization) Hong Kong Regional Arbitration Centre into operation. We will continue to promote and reinforce our status as a centre for alternative dispute resolution mechanism in the international community. This will facilitate the growth of our legal and dispute resolution communities, hence complementing national policies and contributing to the development of our country.

¹ Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters

March 04, 2022

In light of the latest situation, the Judiciary announced that new jury proceedings and death inquests involving juries scheduled will generally be adjourned while all other court hearings will in general continue to proceed as scheduled. Court users, including members of the public observing court proceedings, are advised to share the responsibilities by adhering to the anti-epidemic measures implemented by the Judiciary and getting vaccinated. These measures not only protect oneself, but also protect the health and safety of judicial officers, relevant parties and others in courts.

To combat the epidemic, the Government has been strongly appealing to and encouraging the public to get vaccinated with a view to protecting the community. The Government provides a variety of channels to enable members of the public to receive vaccination conveniently, including extending vaccination service at Hospital COVID-19 Vaccination Stations, setting up additional Community Vaccination Centre, arranging private doctors or clinics as well as service locations operated by private healthcare institutions for vaccination. I urge those who have not yet received vaccination to get vaccinated as soon as possible to protect themselves and others.

February 27, 2022

Looking ahead to the new year, the Department of Justice (DoJ) will launch a number of initiatives to assist the legal and dispute resolution sector in grasping the opportunities brought about by national policies, including the expeditious implementation of the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between the Courts of the Mainland and of the Hong Kong Special Administrative Region. We had launched a public consultation on the legislative proposal and will take forward the legislative exercise, with a view to establishing a comprehensive and clear mechanism as soon as possible to provide better protection to parties in both places.

Furthermore, the Law Reform Commission published a report on the Outcome Related Fee Structures for Arbitration (ORFSA) which suggests an introduction of reform on legal fee arrangements for arbitration. The Advisory Committee on Promotion of Arbitration has already expressed its support to the ORFSA proposal. We are carefully considering the recommendations of the report and will take forward the legislative amendments in order to respond to the expectations of arbitration parties for flexible fee arrangements, enhance access to justice and enable Hong Kong’s arbitration services to advance with the times. This will undoubtedly help attract more parties to choose Hong Kong as a seat of arbitration as well as use the legal services in Hong Kong.

This year marks the 25th anniversary of Hong Kong’s return to the Motherland. The DoJ will organise a number of events to celebrate with members of the public. First of all, the Hong Kong Legal Week will be held in November to bring together local and overseas renowned experts to share their professional views on a series of legal issues with the sector, thereby strengthening our status as a leading centre for international legal, deal-making and dispute resolution services in the Asia-Pacific region and beyond.

In addition, the DoJ will again host the legal conferences on Basic Law and National Security Law. Through the sharing with experts, we hope to enhance the proper understanding of the Constitution and the constitutional responsibility to safeguard national security among the public, showcasing the successful implementation of the Basic Law and “one country, two systems” with a deep appreciation of “stability to prosperity and thrive with security”.

February 01, 2022

With increasingly closer ties and cooperation between the Mainland and Hong Kong in terms of economic activities and social interactions, the REJ Arrangement establishes a more comprehensive mechanism for reciprocal recognition and enforcement of judgments in civil and commercial matters between the two jurisdictions and serves to complement the arrangement on reciprocal recognition and enforcement of civil judgments in matrimonial and family cases which will come into force on February 15.

The REJ once in place will greatly reduce the need to re-litigate the disputes in the enforcing jurisdiction and avoid the complicated litigation procedures in the other jurisdiction for the judgment creditor to recover his judgment debt. It provides a simple pro-enforcement mechanism whilst ensuring that due process has been observed in the place of the trial. This arrangement will better protect the interests of the parties ensuring that justice is served.

In formulating the REJ Arrangement, we had drawn reference to the then draft version of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention). The Hague Judgments Convention was concluded in July 2019 but still not yet in force. In the REJ, taking into account the practical needs and circumstances of the Mainland and the HKSAR, and utilising the “one country two systems” policy, we have expanded the scope of application. The REJ covers a wider range of judgments beyond contractual and tortious disputes as in the case under the Hague Judgments Convention, but expressly covers judgments given in respect of certain types of disputes over intellectual property rights. This major breakthrough makes Hong Kong the first jurisdiction to have an arrangement with the Mainland on reciprocal recognition and enforcement of judgments with such a wide coverage, reflecting the unique advantages of “one country, two systems”.

One of the DoJ’s major tasks this year is to implement the REJ Arrangement. We have prepared a bill and are conducting a public consultation.

In addition to the implementation of the REJ Arrangement, the DoJ has also introduced a number of measures that will enhance our status as an international legal, deal making and dispute resolution hub.

(1) Outcome Related Fee Structures for Arbitration

The Law Reform Commission published a report on the Outcome Related Fee Structures for Arbitration (ORFSA) in December last year. The relevant recommendations are only applicable to arbitration, but not other Hong Kong court proceedings. Similar arrangements are in place in other jurisdictions, hence the introduction of ORFSA in Hong Kong can actively respond to the expectations of arbitration parties for flexible fee arrangements, enhance access to justice and enable Hong Kong’s arbitration services to advance with the times. This will help attract more parties to choose Hong Kong as a seat of arbitration as well as use the legal services in Hong Kong. The Advisory Committee on Promotion of Arbitration has already expressed its support to the recommendations. The DoJ is fully aware of the importance of ORFSA in enhancing Hong Kong’s competitive advantages and will be committed to taking forward the legislative amendments as soon as possible.

(2) AALCO Hong Kong Regional Arbitration Centre

The announcement of the establishment of the AALCO (Asian African Legal Consultative Organization) Hong Kong Regional Arbitration Centre at the 59th AALCO Annual Session in Hong Kong in 2021 evidences the Central People’s Government’s support of the 14th Five-Year Plan to reinforce Hong Kong as the international legal and dispute resolution hub. Steps are undertaken to put that into operation. Other areas of international dispute resolution will also be explored.

(3) Implementation of the CISG

The United Nations Convention on Contracts for the International Sale of Goods (CISG) provides for a harmonious and uniform set of rules for international sale of goods. It has 94 contracting states at present, including more than half of Hong Kong’s top 20 trading partners by total trade value. About 45% of the countries and regions participating in the Belt and Road Initiative are also contracting parties. The Sale of Goods (United Nations Convention) Ordinance was passed last year to implement the CISG. We will organise seminars and workshops to promote its application and understanding. Subject to the completion of the relevant process under Article 153 of the Basic Law as well as the requisite declaration and notification by the Central People’s Government under the Convention, the CISG is expected to apply to Hong Kong with effect in the third quarter. This measure complements the national 14th Five-Year Plan of making Hong Kong an international trading hub.

To celebrate the 25th anniversary of the establishment of the HKSAR, the DoJ will organise the Basic Law Legal Summit “Stability to Prosperity” and the National Security Law Legal Forum “Thrive with Security” on April 4 and May 28 respectively.

In the year ahead, I hope that the legal sector will focus on legal matters and work together to uphold the rule of law, protect judicial independence and realise the benefits and opportunities afforded to Hong Kong under our national policies and in pursuance of the “one country, two systems” policy. By integrating the needs of the country with the strengths of Hong Kong, we will further enhance our inherent advantages and prospering whilst contributing to the development of the country.

January 23, 2022

The National 14th Five-Year Plan supports Hong Kong to establish itself as the centre for international legal and dispute resolution services in the Asia-Pacific region. Last year, the HKSAR hosted the 59th Asian-African Legal Consultative Organization (AALCO) Annual Session with the establishment of the AALCO Hong Kong Regional Arbitration Centre, demonstrating not only the unwavering support of the Central Government in the development of our legal and dispute resolution services, but also the confidence of the AALCO in our arbitration. The AALCO Hong Kong Regional Arbitration Centre will make every effort to provide arbitral and other dispute resolution services to the member states and MSMEs (micro, small and medium-sized enterprises). Other than the AALCO Annual Session, the meeting of UNCITRAL (United Nations Commission on International Trade Law) Working Group III was also held in Hong Kong, marking the first time the UNCITRAL Working Group met in the city. I would like to express my deep appreciation to the Central Government for its trust and staunch support. In order to improve our standing, the Department of Justice (DoJ) will continue to secure the hosting of important international conferences in Hong Kong.

The DoJ has reached secondment arrangements with UNCITRAL, the Hague Conference on Private International Law and International Institute for the Unification of Private Law over the years. Some positions are even open to non-government personnel, which is different from the previous programmes. The DoJ will explore with other renowned international organisations secondment opportunities through which Hong Kong legal professionals will be able to gain valuable work experiences and receive training in diverse areas of international law.

Since Hong Kong’s return to the Motherland, we have reached nine arrangements on mutual legal assistance with the Supreme People’s Court, allowing us to foster our dispute resolution services in commercial matters. Last year, we signed a record of meeting concerning mutual recognition of and assistance to insolvency proceedings between the courts of the Mainland and the HKSAR. Hong Kong is the only jurisdiction outside the Mainland with such arrangement, which further improves the investment and business environment of both places. The implementation of the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and the HKSAR signed in 2019 is also in the pipeline. A public consultation on the legislative proposals is currently ongoing and will be submitted to the LegCo for scrutiny. It is hoped that a more comprehensive mechanism for reciprocal recognition and enforcement of judgments in civil and commercial matters can be established to provide better protection to parties of both places. The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance was already passed in May. Once it comes into operation in the near future, it will benefit parties to cross-boundary marriages and their children as well.

In the coming year, we will continue to promote our initiative, “Vision 2030 for Rule of Law”, which aims to raise the awareness of different sectors regarding the legal principles and the rule of law through a variety of activities. Moreover, teaching materials on the Constitution, the Basic Law and national security as well as the rule of law are now available for teachers. I hope that everyone in the community will work together to safeguard the rule of law as a cornerstone of our society.

The recommendations made by the Law Reform Commission on the Outcome Related Fee Structures for Arbitration is being thoroughly studied by the DoJ. Once it is decided to adopt the recommendations, we will take forward the legislative amendments as soon as possible. The new arrangement will help enhance Hong Kong’s competitiveness as a leading international arbitration centre and maintain our position as an international legal, dealmaking and dispute resolution hub in the Asia-Pacific region.

The DoJ will render its full support to the Security Bureau in taking forward the enactment of local legislation to implement Article 23 of the Basic Law so as to prevent, suppress and punish acts and activities that endanger national security in accordance with the law. We are dedicated to safeguarding national security so that people may live and work in peace and contentment, as well as ensuring that the celebrations for the 25th anniversary of our return to the Motherland go smoothly.

Riding on the success in 2020 and 2021, the DoJ will once again organise legal conferences on the Basic Law and the National Security Law, which are among the key events in celebrating the 25th anniversary of the establishment of the HKSAR. Legal experts will be invited to share with us a proper understanding of the concepts of the Constitution, the Basic Law and national security so that we will not only move from stability to prosperity, but will also thrive with security.

I hope that the legal and dispute resolution sectors can capitalise on the opportunities brought about by our policies. I also hope that we will be able to nurture young people with a strong sense of national identity, who respect the rule of law and abide by the law, and that they will serve Hong Kong and contribute to our country in the future.

January 2, 2022

Without commenting on the case, I would like to explain some legal principles in relation to the fundamental rights and freedoms protected by the law. Freedom of speech or expression and freedom of the press are guaranteed by the Basic Law¹ and the Hong Kong Bill of Rights (which gives effect to the provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong)². By virtue of Article 4 of the National Security Law (NSL), such rights and freedoms shall be protected in accordance with the law in safeguarding national security in the Hong Kong Special Administrative Region.

Whilst such rights and freedoms should be respected and protected, they are not absolute. They may be subject to restrictions that are provided by law and are necessary for pursuing legitimate aims such as the protection of national security or public order. It should be borne in mind that the safeguarding of national security and the preservation of the constitutional order of “one country, two systems” are matters of fundamental importance as stipulated in Article 2 of the NSL and long recognised by the courts of Hong Kong.

It is important to remind us all, as many often forget, that rights come with responsibilities. Freedom of expression is no exception. Indeed, Article 16(3) of the Hong Kong Bill of Rights expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. The concept of “responsible journalism” is well-established in international jurisprudence on human rights, and courts have consistently reiterated that journalists cannot be exempted from their duty to comply with ordinary criminal law³. Journalists are entitled to the protection of the freedom of expression on the premises that they act in good faith and on an accurate factual basis and provide reliable and precise information in accordance with the tenets of responsible journalism⁴. Publishers and editors of newspapers are likewise obliged to observe the special duties and responsibilities in journalistic activities⁵.

The boundary between genuine journalistic activities which should be protected, and offences endangering national security which should be prevented, suppressed and punished in accordance with the law, is thus reasonably clear. It is indisputable that the free flow of information in accordance with the law has always been well-respected in Hong Kong. Those baseless allegations against the enforcement of laws for safeguarding national security are purely made out of ignorance or with ulterior motives, which will have no weight when viewed objectively.

¹ Article 27 of the Basic Law.
² Article 16 of the Hong Kong Bill of Rights, See also Article 19 of the ICCPR.
³ For reference, see Guide on Article 10 of the European Convention on Human Rights (last update as of 30 April 2021) (https://www.echr.coe.int/documents/guide_art_10_eng.pdf), paragraphs 302-308.
⁴ Ibid., paragraphs 312-313.
⁵ Ibid., paragraph 331.

December 31, 2021

The Sale of Goods (United Nations Convention) Ordinance was passed by the Legislative Council in September this year in order to apply the CISG to the HKSAR. The Ordinance is envisaged to take effect in around the third quarter of 2022. Businesses and their legal advisors are advised to get ready for this important development in our law on international sale of goods.

Major trading partners are contracting parties to the CISG

CISG has 94 contracting states at present, including more than half of Hong Kong’s top 20 trading partners by total trade value. Businesses of Hong Kong need to be familiar and able to adopt the CISG as the guiding rules for their sale of goods contracts as it provides them with a fair and level playing field. This will also avoid the choice-of-law question when they are doing business with different commercial law regimes.

45% of Belt and Road Initiative countries are contracting parties to the CISG

Apart from the National 14th Five-Year Plan, the Belt and Road Initiative (BRI) is another major policy launched by our country. About 45% of the countries and regions participating in the BRI are also contracting parties to the CISG. Therefore, extension of the CISG to Hong Kong allows for a uniform law to govern the bulk of Hong Kong businesses’ international sales transactions, providing more certainty and predictability, which will in turn facilitate more deals and transactions.

Reduce costs of doing business

Without the adoption of the CISG, parties to an international sale of goods need to decide on the law which governs the transaction. Very likely, the answer will be the domestic sales law of one of the parties. The need to deal with different laws involving different jurisdictions will increase legal costs and business risks. The CISG is able to address the applicable law issue by providing a modern and uniform regime for contracts with multiple countries for international sale of goods.

Enhance development of legal and dispute resolution sectors

With national policies expressly supporting Hong Kong to develop a leading centre for international legal and dispute resolution services, there will be an increasing demand for practitioners who are qualified for offering advice on international commercial transactions. Extension of the CISG to Hong Kong will encourage more practitioners to enhance their capability in handling international trade disputes, reinforcing our position as an international legal hub.

It is noteworthy that the CISG does not apply to transactions within China, including those transactions between the Mainland enterprises and the HKSAR enterprises. We are in discussion with the Central People’s Government to arrive at an arrangement for reciprocal application of the CISG rules to such transactions. This approach has been successfully adopted in the context of enforcing arbitral award under the New York Convention.

In order to enable the business and legal sectors to get ready for the application of the CISG, the Department of Justice will roll out a series of events, including two seminars jointly organised with the Hong Kong General Chamber of Commerce on January 19 and 26, as well as a webinar and a workshop respectively on January 24 and February 21 both jointly organised with the Asian Academy of International Law, with a view to promoting a more in-depth understanding of the CISG and practical tips for cross-border sale of goods in light of its application to Hong Kong. Details of the events will be announced later.

You are also welcome to visit the DoJ’s dedicated webpage on the CISG for more practical information on the Convention.

December 28, 2021

Verifying the eligibility of people to be nominated as a candidate in LegCo election is not something new. In the past, this exercise was conducted solely by a Returning Officer in accordance with the legal requirements and relevant procedures. Under the improved electoral system, the Candidate Eligibility Review Committee (CERC) was set up. This is chaired by the Chief Secretary for Administration and comprised of official members as well as eminent members of the public. Their task is to decide whether a person complies with the legal requirements and conditions for upholding the Basic Law and swearing allegiance to the HKSAR. The inclusion of independent and respectable individuals as non-official members enhanced the credibility of the CERC.

The composition of the LegCo has been increased from 70 to 90 members who are returned by geographical constituencies, functional constituencies and the Election Committee, demonstrating a broader representation with candidates from all walks of life. One should not adopt a blinkered approach and unfairly criticise the LegCo election by only focusing on one aspect of the whole process. It is indisputable that the election was carried out in a fair, just and honest manner.

As stated in my blog, there is no single model of democracy. Elections are not the only approach for a democratic system, compromise and consultation are also means to achieve democracy. It is of fundamental importance that an electoral system should comply with the constitutional order and suited to the historical, cultural and political background of the place.

December 21, 2021

Before our return to the Motherland, the Judicial Committee of the Privy Council in London was the highest appellate court in Hong Kong and Hong Kong’s percentile rank in respect of the rule of law under the Worldwide Governance Indicators project of the World Bank Group was only 69.85 in 1996. After July 1, 1997, the power of final adjudication is vested in the Court of Final Appeal of the HKSAR in accordance with the Basic Law which also guarantees our judicial independence. Meanwhile, Hong Kong’s percentile rank in respect of the rule of law reached 82.5 in 1998 and has been consistently above 90 since 2003, showing that the “One Country, Two Systems” and the Basic Law provide a solid foundation to our rule of law.

Article 31 was written into the Constitution of the People’s Republic of China in 1982, forming the legal basis for the establishment of the HKSAR. The Communist Party of China and the Chinese Government afterwards laid down 12 basic policies in accordance with the principle of “One Country, Two Systems”, ensuring Hong Kong’s smooth transition and return to the Motherland.

It is noteworthy that all 59 members of the Drafting Committee for the HKSAR Basic Law came from Mainland and Hong Kong, signifying that we had become the master of our own destiny. The Basic Law, which was adopted by the National People’s Congress in 1990, laid down the foundation for the democratic progress of the HKSAR, with Articles 45 and 68 clearly stipulating that the ultimate aim of universal suffrage is to be achieved in light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly process.

After the social violence in 2019, the Central Authorities adopted the National Security Law to restore the stability in Hong Kong, and having considered the actual situation in Hong Kong, established a new democratic electoral system with Hong Kong characteristics. The improved electoral system reflects not only the implementation of the principle of “patriots administering Hong Kong”, but also the features of broad representation, political inclusiveness, balanced participation and fair competition; it not only safeguards political stability, but also upholds and realises the democratic rights of the people; it not only develops electoral democracy, but also reinforces consultative democracy. I am confident that members of the Legislative Council will now be able to participate in policy discussions in a rational and objective manner, assisting the Government in addressing social and economic issues as well as enhancing efficiency, thereby promoting good governance.

Every place has its own historical, cultural and political background. The United Nations in its resolutions repeatedly points out that there is “no single model of democracy”. In other words, there is no one panacea for all. Elections are not the only approach for a democratic system, compromise and consultation are also means to achieve democracy.

It should be borne in mind that the Communist Party of China created the “One Country, Two Systems” policy and has guided its development ever since. As remarked by Director of the Liaison Office of the Central People’s Government in the HKSAR, Mr Luo Huining, in the Constitution Day Seminar, “disrespecting the leadership of the Communist Party of China is to forget how the HKSAR came about and deny the constitutional basis of ‘One Country, Two Systems’ principle.”

The aspiration of the Communist Party of China is to puruse the well-being of the nationals and act on the people-centred philosophy of development, which form the core components of democracy. The implementation of “One Country, Two Systems” not only outlines a blueprint for the democratic development in Hong Kong, but also opens a new era for democracy.

December 21, 2021

This is the first time that there are contested elections in all Functional Constituencies since our return to the Motherland. The age, profession and background of the candidates are more diverse than those in any previous elections, demonstrating the characteristics of broad representation, political inclusiveness, balanced participation and fair competition of the new composition of the LegCo as remarked by Director of the Hong Kong and Macao Affairs Office of the State Council and Vice-Chairman of the National Committee of the Chinese People’s Political Consultative Conference, Mr Xia Baolong.

I call on all registered electors to take part in this meaningful and significant election by casting their votes at the designated polling stations between 8.30am and 10.30pm on Sunday. It is our common goal to build a brighter future for Hong Kong and our younger generations.

Since the National People’s Congress (NPC) decided to improve the electoral system of the HKSAR, there have been views expressed by the local and overseas communities on our elections. I wish to remind them that the European Court of Human Rights has repeatedly emphasised the latitude given to each state in setting the rules governing eligibility to stand for election and the diversity of possible approaches within the European Union. One of its judgments states that there are “a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each contracting state to mould into its own democratic vision”. The United Nations in its resolutions also clearly points out that “there is no single model of democracy” and that “democracy does not belong to any country or region”.

In fact, the Standing Committee of the NPC has fully considered the actual situation in Hong Kong. A new democratic electoral system suited to Hong Kong’s actual situation and with Hong Kong characteristics was therefore synthesised in order to fully implement “patriots administering Hong Kong” and safeguard the overall interests of society and the constitutional order as set out in the Constitution and the Basic Law. The Central Authorities, in exercising the sovereign rights, has a solid legal basis and was also supported by case law to improve the electoral system of Hong Kong.

Pursuant to Annex I of the Basic Law, the Candidate Eligibility Review Committee is responsible for confirming the eligibility of candidates. In other words, all candidates are confirmed in compliance with the legal requirements and conditions for upholding the Basic Law of the HKSAR and bearing allegiance to the HKSAR of the People’s Republic of China. I am confident that all the elected candidates will sincerely serve Hong Kong and pursue the well-being of our citizen. This is the purpose of election and also the true meaning of democracy.

December 16, 2021

In the beginning, I briefly introduced the relationship between the Constitution of the People’s Republic of China and the Basic Law. I also talked about the background of which the Central Authorities adopted the National Security Law before I invited them to express their views. I was pleased to know that they possess an accurate concept about the constitutional order and understand that the Basic Law solidly and clearly provides the legal guarantee for the implementation of “one country, two systems” in the Hong Kong Special Administrative Region.

We then discussed the significance of the National Security Law. They agreed that stability has been restored and members of the public no longer live in terror since the enactment of the law. I also took the opportunity to clarify a number of misconceptions among the international community, hoping that the students can help disseminate accurate information about the National Security Law to their peers.

I encourage the students to take part in the programmes under the Vision 2030 for Rule of Law organized by the Department of Justice (DoJ). Among them, those with the theme “Empowerment” focus on the rule of law education for schools, with activities including “Rule of Law through Drama” and “Rule of Law Enlightenment”.

Through a wide range of activities organized by the DoJ, I wish we are able to nurture young people who have a strong sense of national identity and social responsibility, respect the rule of law and abide by the law, and that they will give full play to their strengths to serve Hong Kong and contribute to our country in the future. They are probably too young to join the governance right now, however, I sincerely invite them to call on their parents, relatives and friends to vote in the upcoming Legislative Council election on December 19 with a view to building a brighter future for Hong Kong and our younger generations.

December 12, 2021

Let me briefly introduce the development of the Constitution. On September 29, 1949, the Chinese People’s Political Consultative Conference (CPPCC) adopted the Common Program of the CPPCC which bore the nature of a temporary constitution and laid a strong legal foundation for the political system of our country. On September 20, 1954, the Constitution of the Peoples Republic of China was adopted at the First Session of the First NPC Congress. Since then, there were the 1975 Constitution, the 1978 Constitution and the 1982 Constitution as well as several amendments to the main text of the Constitution.

President Xi Jinping had once said that the Constitution is the fundamental law of the state and the overall basis of all other systems and laws of the country. The People’s Congress System is the fundamental political system in China and the NPC is the highest organ of state power. Under the Constitution, the NPC has the power to introduce laws and other legal instruments including making decisions.

It is worthy to note that the 1993 Amendments to the Constitution added “[t]he system of multiparty cooperation and political consultation under the leadership of the Communist Party of China will continue and develop long into the future” to the Preamble. In the 2018 Amendments, “(patriots who) dedicated to the rejuvenation of the Chinese nation” and “promotes the building of a human community with a shared future” were added to the Preamble, setting out the direction of development of our country. “Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics” was also added to Article 1, which clearly demonstrates the fundamental system of our nation.

Article 31 was written into the Constitution in 1982, stating that “[T]he state may establish special administrative regions when necessary. The systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People's Congress”, which formed the legal basis for the establishment of the Hong Kong Special Administrative Region (HKSAR). Article 62 (2), (14) and (16) of the Constitution stipulate that the NPC shall exercise the following functions and powers: “overseeing the enforcement of the Constitution”; “deciding on the establishment of special administrative regions and the systems to be instituted there”; and “other functions and powers that the highest state organ of power should exercise”.

The NPC adopted the Basic Law in accordance with Article 31 of the Constitution and the Decision on the Establishment of the HKSAR on April 4, 1990.

When a gaping hole in national security has emerged in Hong Kong with increasingly serious situation, and it is difficult for the executive and legislative authorities of the HKSAR to complete on their own legislation for safeguarding national security in the foreseeable future, the NPC has the right and duty under the Constitution and the Basic Law to introduce a national security law to improve at the national level the legal framework and enforcement mechanisms for national security for the HKSAR.

In formulating the concept of “one country, two systems”, Mr Deng Xiaoping said that patriots must be the mainstay of the idea of “Hong Kong people administering Hong Kong”. To better implement the criterion of “patriots administering Hong Kong”, effectively safeguard the constitutional order as set out in the Constitution and the Basic Law, the NPC proposed an approach combining “decision plus amendment” to improve HKSAR’s electoral system, ensuring the prosperity and stability of Hong Kong as well as the steadfast and successful implementation of “one country, two systems”. The Legislative Council election will be held on December 19. Eligible voters must fulfill their civic responsibilities to cast their votes for candidates based on their merit, and build a bright future for Hong Kong together.

The enactment of the National Security Law and the Decision on improving the electoral system have fully reflected the fundamental system and task of the state as stipulated in the Constitution. Everyone in the country must treat the Constitution as the fundamental standard of conduct, and have a duty to uphold the sanctity of the Constitution and ensure its compliance.

To fully implement the principle of “one country, two systems”, we must enhance the education on the Constitution and the Basic Law so that members of the community will be able to grasp the essence of “one country, two systems”, helping Hong Kong play its unique role in national strategies to build a better future. The Constitution is the foundation of the Basic Law and the principle of “one country, two systems”. We all need to grasp a proper understanding of the Constitution. A traditional Chinese idiom says that only when a root is firm, the branches flourish.

December 4, 2021

It is our honour that Premier Li Keqiang will attend and deliver remarks at the Inaugural Session on November 29 through video link in Beijing. The AALCO is the only cooperation platform dedicated to international law spanning Asia and Africa. The 59th Annual Session of AALCO is the third annual session hosted by China whilst the HKSAR, for the first time, was designated as the venue for the meeting. It will also be the second time Premier Li Keqiang has attended the opening ceremony following the one in 2015. This fully demonstrates the importance attached by the Central People’s Government (CPG) to AALCO and that our country is ready to work with the counterparts in Asia and Africa to jointly defend international law and promote international rule of law.

Originally constituted in 1956 as the “Asian Legal Consultative Committee”, AALCO has held permanent observer status at the United Nations (UN) since 1980 and maintains a permanent office at UN Headquarters. Being the only intergovernmental legal consultative organisation in the Asian and African region with 47 member states, AALCO serves as an important forum to deliberate on international legal issues. Deliberations reflecting diverse legal traditions and myriad cultures in Asian and African nations are consolidated and communicated to other institutions and international organisations, including the UN, so that Asian and African viewpoints, concerns and cultures are appropriately represented in world deliberations on international legal issues, contributing to a more inclusive and comprehensive development of international law, and the understanding and maintenance of the rule of law internationally.

The annual session is one of the major events in AALCO’s calendar each year, during which delegates from member states and those attending as observers primarily participate in deliberations which examine international law matters discussed by other international organisations such as International Law Commission, and examine issues of international law that are of particular interest and relevance to AALCO member states. This reinforces the importance of multilateralism and the collaboration among countries in this area.

Further to AALCO’s work plan approved in the 57th Annual Session in 2018 in relation to the set up of another arbitration centre, the AALCO and the CPG have agreed on the establishment of the centre in Hong Kong, China. An agreement was subsequently signed on 10 November this year. Since 1978, AALCO regional arbitration centres have been set up in five places. Starting from the Asian International Arbitration Centre in Kuala Lumpur to the latest Nairobi Centre for International Arbitration in 2007, the sixth of which will be established in the HKSAR this year with major support from the CPG and AALCO. The regional arbitration centre in Hong Kong will seek to integrate itself in the AALCO dispute settlement system and perform a variety of tasks, such as promoting the growth and effective functioning of arbitration and other dispute resolution services, including online dispute resolution (ODR) services, which will strengthen Hong Kong’s position as an international legal, deal-making and dispute resolution hub.

In view of the growing importance of ODR, it is an opportune time for the AALCO Annual Session to further explore the way forward. A side event on Dispute Settlement - Online Dispute Resolution will be held on the second day of the Annual Session in which a number of legal experts and academics will share with us their views which will no doubt benefit the legal and dispute resolution sector not only in Hong Kong but also around the world in the promotion of ODR in future.

November 27, 2021

It is our understanding that judges, in exercising their judicial power, must take into account the applicable law and admissible evidence. Their judgments set out the full reasons for arriving at the decision. This is in accord with the basic principle that judges are to decide cases according to the law impartially and independently. Judicial independence is essential to the rule of law and the due administration of justice in Hong Kong. It is similarly fundamental to the rule of law that everyone should respect court decisions and obey court orders. Attacks made against the judiciary simply based on the outcome of cases, or made with an attempt to exert undue influence on judges by means of doxxing or threats of violence, are not only unacceptable in a law-abiding society, but will also be to no avail.

The Chief Justice of the Court of Final Appeal at the Ceremonial Opening of the Legal Year 2021 pointed out that “attempts to exert undue pressure on our judges by means such as threats of violence or doxxing are as futile as they are reprehensible.”

Acts harassing or threatening judges are in blatant defiance of the law and offenders will face legal consequences. I would like to point out some of the legal principles governing these unscrupulous acts and urge everyone to comply with the law.

(1) Nuisance

Any person persistently making telephone calls without reasonable cause and for the purpose of causing annoyance, inconvenience or needless anxiety to any other person commits a crime.¹

(2) Criminal intimidation

Anyone who threatens any other person with injury to him/her shall be guilty and liable on conviction upon indictment to imprisonment for five years.²

(3) Criminal contempt of court

Criminal contempt of court means conduct calculated to interfere with the due administration of justice, and where there is a real risk that the due administration of justice would be undermined by the relevant conduct. Examples of which include insulting judicial officers, scandalising the court or interference with witnesses, etc.

(4) Contempt of court in civil matters

An injunction was granted by the Court of First Instance (CFI) last year which restrained doxxing against judicial officers and their family. The CFI remarked that “any attempt to cause fear or to seek favour from or otherwise inappropriately influence a Judge or Judicial Officer [it] must be prevented”³.

Members of our society must respect the outcomes of judicial proceedings even if these may not be to their liking. A party who feels aggrieved by a court decision may review or appeal against the decision in accordance with the established mechanism. Meanwhile, others should read the judgments and understand the reasons for the decisions. This will facilitate a proper, objective and rational discussion of judgments and develop society’s understanding of the law and its application, thereby reinforcing the practice of the rule of law. Those who turn a blind eye to the reasons of the court’s rulings, and act unlawfully and despicably against judges based merely on their own likings on the outcomes of cases only reveal their ignorance, cowardice and blatant disregard of the law.

At the Hong Kong Legal Week 2021, the Chief Justice of the Court of Final Appeal remarked that members of the public must learn to understand and respect that outcomes of judicial proceedings may not be to their liking, or accord with where they consider justice lies. The decisions of the courts are based on legal principles, not a quantitative measurement of overall social satisfaction. I fully agree with his view. On top of it, I would also like to add that law exists in practice, and it should be observed by the community which should also respect the rule of law. All of us jointly bear the responsibility to respect judicial independence and the rule of law so as to reinforce the fundamental basis of our society.

¹ Section 20(c) of the Summary Offences Ordinance.

² Section 24 of the Crimes Ordinance.

³ Paragraph 33 of HCA1847/2020.

November 19, 2021

(1) Broad expression of “taking part”

• The judgment noted that “taking part” has a broad expression, embracing conduct which involves facilitating, assisting or encouraging. Those, in doing so, may attract liability either as principal offender or aider and abettor. (paragraph 14)
• A defendant is considered to be “taking part” if he or she performs the acts prohibited or acts in facilitating, assisting or encouraging others. (paragraph 109d)
• While mere presence does not make a person guilty, it does not take a great deal of activity to move from mere presence to encouragement, such as by words, signs or gestures, or by wearing the badge or ensign of the rioters. (paragraph 82)
• The offences of unlawful assembly and riot are participatory in nature. Proof of participatory intent may generally be inferred from conduct. (paragraph 109c)

(2) Extraneous common purpose not required to be proved

• There is no requirement for the prosecution to prove any extraneous common purpose. The participatory intent already denotes the requirement of a defendant being aware of other participants’ related prohibited conduct. (paragraphs 48 – 50)

(3) Basic form of joint enterprise unnecessary

• Persons can be found guilty as a principal offender of unlawful assembly or riot if it is proved that he was present at the scene and “taking part” in the unlawful assembly or riot. (paragraph 109f)
• Therefore, basic form of joint enterprise is found to be unnecessary and not applicable to the offences of unlawful assembly and riot. (paragraphs 66, 67 and 109g)
• Defendants who promote or act in furtherance of an unlawful assembly or riot while not present at the scene would still be liable as accessories or as a conspirator or inciter of the main offences, and are punishable to the same extent as principal offenders. (paragraphs 68-70, 109f, 109h and 111)

It is important to bear in mind that paragraphs 69 and 70 of the judgment clearly stated that public order can be fully enforced relying on secondary liability and inchoate offences. Those masterminds who remotely oversee and give commands, fund or provide materials for the unlawful assembly or riot, encourage or promote it on social media, provide back-up support to participants such as collecting bricks, or act as lookouts may either be “taking part” as principals or liable as aiders and abettors if present at the scene; or, if not present, liable as counsellors or procurers.

Further, the judgment gave an example in paragraph 73 that if a group of persons agreed to take part together in a riot intending to erect barriers stopping traffic while knowing some amongst them would take along petrol bombs, should they proceed with their plan and petrol bombs were used to cause serious injury, the doctrine of extended joint enterprise might apply under which rioters would be liable for the more serious offence.

I hope the above summary would assist the general public in learning the legal principles set out in the judgment.

November 7, 2021

I am pleased to see that a number of important international legal events have already begun to take place in Hong Kong. It not only reflects the support of the Central People’s Government (CPG), but also showcases the fruitful results of DoJ’s efforts in promoting international legal co-operation and exchanges, as well as our determination in holding decision-making meetings in Hong Kong by international organisations.

A hybrid intersessional meeting of UNCITRAL Working Group III, co-organised by the DoJ, the United Nations Commission on International Trade Law (UNCITRAL) and the Asian Academy of International Law (AAIL), was held in Hong Kong over the last two days to discuss reform plans for investment mediation, making it the first time for the UNCITRAL Working Group to meet in the city. Though the intersessional meeting has been delayed for a year as a result of the pandemic, a groundbreaking virtual pre-intersessional meeting was held in Hong Kong last year setting the directions on strengthening the use of mediation.

In fact, we have been at the forefront in Asia in partnering up with leading international institutions in offering Investment Law and Investor-State Mediator Training Course for government officials and legal as well as mediation practitioners around the world since 2018. The DoJ also co-organised with the AAIL the ISDS (investor-state dispute settlement) Reform Conference in 2019, contributing to the ISDS reform discussion and facilitating relevant policy-making in the Asia-Pacific region.

The intersessional meeting acknowledged the importance of participation in mediation involving international investment disputes. As a reference for the international community, Hong Kong and the Mainland signed the CEPA Investment Agreement which provides for promotion and protection of investments between the two jurisdictions. It is noteworthy that investment mediation is the mechanism for resolving investment disputes under the agreement which expressly sets out the details in its rules.

Following the intersessional meeting, another flagship event of the DoJ - Hong Kong Legal Week 2021 - will be held next week. Experts from legal, dispute resolution, deal-making, business and government sectors are going to bring informative and insightful discussions on various topics, ranging from new normal after the pandemic, international criminal law, maritime dispute resolution, cross-border dispute resolution, arbitration and mediation, as well as rule of law. Among the programmes, a workshop on online dispute resolution for ASEAN trade will be arranged to explore ways to settle cross-border disputes.

The Hong Kong Legal Week, which is held in the first week of November starting from 2019, is a not-to-be-missed opportunity for you to keep abreast of the latest legal developments. So, act fast and register now!

With CPG’s support, the DoJ also successfully secured the hosting of another important international meeting - the 59th Annual Session of Asian-African Legal Consultative Organization (AALCO) - in Hong Kong in form of hybrid from end of November during which important international law topics will be discussed.

Significant international meetings are conducive to the development of legal and dispute resolution sectors by providing them with a better understanding of prevailing international practices and broaden their international horizons. The DoJ will keep pursuing co-operation with international organisations and hosting important events in Hong Kong, with a view to consolidating our role as an international legal, deal-making and dispute resolution centre.

October 30, 2021

I always believe that upholding the rule of law is not the sole responsibility of judges and lawyers but should be shouldered by the whole community. I am glad to learn that there are different organisations promoting education on the rule of law, giving students the basic legal knowledge and nurturing their positive values and attitudes. I also wish those from the legal sector can make best of their expertise and experience by taking a more active role in serving the community.

In light of the traditional idiom that “example is better than precept”, the DoJ supports the Endeavour Education Centre’s collaboration with the Education Bureau to organise the “Reinforcing the Rule of Law” training course for teachers. The teachers who completed the course are expected to set a good example to their students. In addition to the concept of the rule of law, the training course also covers knowledge on the Constitution, the Basic Law and national security. It has already attracted more than 200 teachers, including principals of primary and secondary schools, to participate since its commencement.

In the training course that just took place between October 19 and 21, I had the honour to be invited to give a talk on “How the Hong Kong Special Administrative Region consolidates the upholding of the rule of law in society” during which I introduced Hong Kong’s legal system and the spirit of the rule of law. Through the training course, teachers are able to gain a proper understanding on the rule of law, the relation between the Constitution and the Basic Law as well as the importance of safeguarding national security. With the teachers setting a good example on respecting the law and enhancing the awareness of law-abiding, I hope that students will follow suit and further disseminate the messages to their friends and peers.

To tie in with the Government’s public education on the rule of law, the DoJ together with the Basic Law Foundation launched the “e-Resources for Rule of Law and the Basic Law” to meet the increasing needs for teaching materials. Apart from legal knowledge and information on the Basic Law, references on the Constitution and national security will also be available. The online platform will be further promoted to primary schools with a view to reinforcing public confidence in the rule of law.

At the same time, the DoJ has offered support to the “Pilot Scheme on Rule of Law Education for Secondary School Students” organised by the Hong Kong Policy Research Institute. Through professional collaboration between the legal and education sectors, it is hoped that secondary school students are able to understand the core concept of the rule of law – everyone is equal before the law, judicial independence and the importance of law-abiding awareness – in order to correct any misinformation in the community.

There are in fact many more projects under the Vision 2030 which aim to raise the awareness of the different sectors regarding the legal principles and the rule of law through diversified channels. A few examples include “Studio DoJ”, “Rule of Law through drama”, trainings and exchanges for professionals, and secondment to international organisations, etc.

The DoJ recently also launched a video competition to invite secondary students to share their thoughts on the rule of law. The award presentation ceremony will be held in late January next year during which a renowned director will share his personal experience in movie making. Students who are interested in camerawork are encouraged to grab the opportunity and unleash their creativity. I look forward to watching all those interesting yet insightful video.

The work of moulding young minds and nurturing individuals comes with great missions and responsibilities, in which a quality education on the rule of law is an indispensable part. Being a “minister of justice”, the DoJ is committed to promoting the rule of law and fully rendering its support to schools in the rule of law education. Through continued co-operation with schools, sponsoring bodies and stakeholders, I am confident that we can further strengthen the spirit of the rule of law in schools and also in the community as a whole.

October 26, 2021

• To implement arrangement on reciprocal recognition and enforcement of civil and commercial judgments between Hong Kong and the Mainland;
• To strive for measures to allow wholly owned Hong Kong enterprises (WOKEs) in the Greater Bay Area (GBA) to choose Hong Kong law as the applicable law and choose Hong Kong as the seat for arbitration;
• To explore possibility of devising mutually recognised standards and mechanisms in the areas of intellectual property and e-commerce matters, etc;
• To pursue the feasibility of setting up international dispute resolution centres in Hong Kong;
• To promote international legal co-operation and exchanges and secure hosting of decision-making meetings in Hong Kong; and
• To promote the use of dispute resolution services of Hong Kong through the Guangdong-Hong Kong-Macao Bay Area Legal Departments Joint Conference.

• To organise seminars relating to the rule of law, launch the rule of law database and discuss issues on LawTech in the Hong Kong Legal Week to be held from November 1 to 5; and
• To carry on the “3Es” projects – “engagement”, “empowerment” and “enrichment” - to promote the proper understanding and recognition of the rule of law.

• “Empowerment”: To launch “Rule of Law Enlightenment” programme (including school talks and Rule of Law Journey); and
• “Enrichment”: To host a Basic Law conference in April 2022, to publish the “Basic Law: Selected Drafting Materials and Significant Cases”, and to host the Legal Summit on the National Security Law in 2022.

• To refine the scope of the existing industry segment and occupation of Dispute Resolution Professionals and Transactional Lawyers in the Talent List; and
• To regularise the Pilot Scheme on Facilitation for Persons Participating in Arbitral Proceedings in Hong Kong.

My colleagues and I will attend the meeting of Legislative Council’s Panel on Administration of Justice and Legal Services on October 11 to further explain the new initiatives and other important measures of the DoJ.

October 06, 2021

China has set up the “two centennial goals” of building a moderately prosperous society in all respects, and building China into a great modern socialist country. These goals play an important role in fulfilling China’s dream of national rejuvenation. As remarked by President Xi Jinping, with the continuous efforts of the populace, China has achieved the first centenary goal - building a moderately prosperous society in all respects, bringing about a historic resolution to the problem of absolute poverty. According to the World Bank’s international poverty standard, more than 770 million of China’s rural population previously living below the current poverty line have already been raised from poverty, accounting for more than 70 percent of the global total over the same period. China has won the battle against extreme poverty by care and devotion and achieved the poverty alleviation goal set by the United Nations 2030 Agenda for Sustainable Development 10 years ahead of schedule, earning critical acclaim internationally.

At the same time, China has made rapid advances in technology along with economic development. President Xi once pointed out that “core technologies may not be available when needed, cannot be purchased when needed, and are not always available on demand. Only by grasping key and core technologies within our own hands can we fundamentally guarantee national economic security, national defense security, and other securities.” Our country has successfully enhanced the capacity for independent innovation, allowing the spread of the spirit of science and patriotism, improving our preparedness in the battle of core technologies. The completion of the first crewed mission for space station construction of the country’s manned space programme by the three astronauts of the Shenzhou-12 spacecraft demonstrates the continuous efforts of our country in breaking new ground in aerospace technology, making proud Chinese people the world over.

Upholding law-based governance provides safeguards and is fundamental to the development of socialism with Chinese characteristics. Therefore, President Xi has called for advancing overall law-based governance, supporting the development of the rule of law for the country as well as promoting the rule of law in matters involving foreign parties. Hong Kong shall render our full support in this area. Since the return to the motherland, Hong Kong has been making progress in international rankings on rule of law. According to the Worldwide Governance Indicators project of the World Bank Group, Hong Kong’s percentile rank in respect of the rule of law was 69.85 in 1996 before the return to motherland. With the full implementation of “one country, two systems” and safeguards provided for by the Basic Law after the return to the motherland, Hong Kong’s scores in respect of the rule of law reached 74.75 in 2000, and has been consistently above 90 since 2003. Hong Kong still achieved the score of 91.35 in 2019, where we went through a spate of violence and riots. The indicators published last week revealed that Hong Kong attained the score of 91.83 in 2020, demonstrating again that the city’s rule of law has a solid foundation, and our efforts in the maintenance of the rule of law is recognised internationally.

Under the principle of building a moderately prosperous society in all respects and “dual circulation”, our country is taking forward the development of the Guangdong-Hong Kong-Macao Greater Bay Area and the 14th Five-Year Plan in order to establish a new system for a higher-level open economy. To actively participate in national development, Hong Kong must bring out the best of its strengths in order to integrate with the needs of the country, manifesting the principle of “joint development, shared prosperity”. Meanwhile, the Department of Justice will continue to be committed to developing an international legal talent hub to assist our country in exploring different legal systems and promoting the rule of law internationally with an aim to achieve the goal of overall law-based governance by 2035.

October 01, 2021

Sovereign equality is a basic norm of international relations and a fundamental principle of international law, with the Charter of the United Nations (UN) expressly stating this principle. Meanwhile, the principle of non-intervention is an important concept central to sovereign equality, which was reaffirmed in the declaration on friendly relations and co-operation adopted by the UN General Assembly in 1970. Further, the International Court of Justice in its judgment in 1986 reiterated non-intervention as a principle of customary international law. The fact sheet clearly shows the US interference in Hong Kong affairs and support for anti-China, destabilising forces. Some US politicians continue to blatantly collude with anti-China, destabilising forces attempting to interfere with Hong Kong’s affairs. Their acts are in violation of international law and have undermined the spirit of the rule of law. Any society that cherishes the rule of law should condemn such abominable behaviours and indeed has an obligation to stop these from happening.

Over these two years, the Central Authorities exercised the sovereign rights to enact the Hong Kong National Security Law (NSL) and make a decision on improving the electoral system in accordance with the law, aiming to plug the national security loopholes and facilitate the implementation of “patriots administering Hong Kong”. In doing so, Hong Kong is able to stay true to the aspiration of the principle of “one country, two systems” by safeguarding national sovereignty, unity and territorial integrity as well as maintaining the stability and prosperity of Hong Kong. Since the enactment of the NSL, Hong Kong has reverted to a safe, rational and inclusive society. International investors’ confidence in Hong Kong has also been enhanced. For example, as at the end of May 2021, the amount of IPO funds raised is about $184 billion, an increase of 621% when compared with $25.5 billion for the same period last year. In the securities market, the average daily turnover for the first six months of 2021 was $188.2 billion, representing an increase of 60% when compared with $117.5 billion for the same period in 2020. These figures speak for themselves, debunking all the baseless allegations and smears on the NSL.

In addition to the outstanding performance in economic development, Hong Kong is also praised for its efforts in safeguarding the rule of law since the return to the motherland. According to the World Governance Indicators published by the World Bank, Hong Kong enjoys favourable scores in the area of the rule of law, rising steadily from 69.85 in 1996 to 91.58 in 2003. Hong Kong’s scores have been maintained over 90 since 2003, which are testimony to the international recognition of Hong Kong’s effort in safeguarding the rule of law.

It is undeniable that following the enactment of the NSL, Hong Kong has been transformed from chaos to governance, and gradually towards development and prosperity. The improvements to the electoral system prove to be an important milestone in Hong Kong’s democratic electoral system under which the principle of “patriots administering Hong Kong” has been fully observed so as to ensure the steadfast and successful implementation of “one country, two systems”.

In spite of the unilateral coercive measures, which are in violation of international law, imposed by the US on our country and Hong Kong with an attempt to meddle in the internal affairs of China, we all wholeheartedly safeguard the development interests of our nation and our people in accordance with law. Such unscrupulous attempts are to be futile. I strongly support the issuance of the fact sheet by Ministry of Foreign Affairs in order to expose the contemptible acts by the US. I am also committed to rendering my full support in guarding against foreign forces interfering with the internal affairs of Hong Kong.

September 26, 2021

I would like to extend my congratulations to all the elected members, including the 15 members from the Legal Subsector. They will be joined by the ex officio members, nominees by eligible bodies and candidates who have been returned uncontested to form the new term of the Election Committee which is entrusted with the important task of nomination and election of the Chief Executive. They are also given two new functions in the electoral system - nomination of candidates for the Legislative Council election and election of 40 Legislative Council members.

Political security is fundamental to national security. I am very grateful to the National People’s Congress for swiftly making a decision on improving our electoral system in accordance with the law after carefully considering the actual situation of Hong Kong. It ensures the steadfast and successful implementation of “one country, two systems”, safeguarding the sovereignty, security and development interests of the country, as well as ensuring the prosperity and stability of Hong Kong.

It has come to my attention that the turnout rate in the Legal Subsector is 100%, demonstrating that the legal sector has placed great importance to the elections. I will arrange for a meeting with all the Election Committee members from the Legal Subsector at the soonest possible so that we can jointly explore ways to seize the opportunities brought about by the 14th Five-Year Plan, the Greater Bay Area (GBA) development and the Qianhai Plan, as well as integrate the needs of the country with the strengths of Hong Kong. We are determined to establish Hong Kong as a centre for international legal and dispute resolution services in the Asia-Pacific region so as to facilitate the long-term development of Hong Kong, the GBA as well as the whole country by proactively participating in the national development.

September 20, 2021

A higher level of opening up in legal matters and the establishment of an international legal services centre and an international commercial dispute resolution centre in the region have been clearly stated in the Qianhai Plan. After the expansion of the zone, the number of registered Hong Kong-invested enterprises will definitely be higher than the present number of 11 500. In other words, more opportunities will be created for the legal and dispute resolution sector. I would like to express my heartfelt thanks on behalf of the sector to the Central Government for its support and care. The Department of Justice (DoJ) will join hands with the legal sector to seize the opportunities and utilise the expertise to integrate into the overall national development.

In respect of the legal and dispute resolution matters, five points can be collated from the measures set out in the Qianhai Plan as below:

(1) Explore ways to improve the mechanism for wholly owned Hong Kong enterprises (WOKEs) to adopt Hong Kong law and choose for arbitration to be seated in Hong Kong

The Regulations of the Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone of the Shenzhen Special Economic Zone implemented last October and the Opinions of the Supreme People's Court on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones announced some years ago demonstrated the feasibility for WOKEs to adopt Hong Kong law and choose for arbitration to be seated in Hong Kong. With the expansion of the Qianhai Cooperation Zone, the number of enterprises that are applicable to adopt such measure will no doubt increase. The DoJ will continue to explore ways of improving the mechanism with relevant Mainland authorities and strive to better implement such measure in Qianhai.

(2) Establish a new mechanism for civil and commercial judicial assistance and exchanges

The judicial assistance measure for mutual recognition of and assistance to corporate insolvency proceedings and debt restructuring implemented earlier illustrated the feasibility of cross-border insolvency co-operation. The DoJ and Shenzhen will jointly explore the enhancement of the implementation mechanism in this area, as well as different legal systems and cross-border legal regulatory interface to further facilitate the assistance and exchanges of all parties.

(3) Deepen the reform of the partnership association mechanism

In 2019, the Department of Justice of Guangdong Province removed the restriction of the minimum capital injection ratio of 30 per cent by Hong Kong partner firms in the partnership associations set up between Mainland and Hong Kong law firms, encouraging and facilitating more Hong Kong law firms to establish partnership associations to provide a one-stop shop of cross-jurisdictional legal services in the Mainland. Coupled with the GBA Legal Professional Examination, more lawyers familiar with the laws of the two places will be available for the Qianhai Cooperation Zone for seizing the business opportunities together. This can play a leading role to demonstrate to the legal professions of the two places for exploring the ways to deepen the reform mechanism, with a view to providing high-level legal services to the business community.

(4) Support and encourage the establishment of representative offices

With the support of the governments of Shenzhen and Hong Kong, the eBRAM International Online Dispute Resolution Centre, South China International Arbitration Center (HK), and Des Voeux Chambers will serve as the first batch of Hong Kong institutions to join the Greater Bay Area International Arbitration Centre exchange and co-operation platform. The platform embodies the collaboration between the industries of both places and is committed to jointly build an international investment arbitration and mediation mechanism in the Qianhai Cooperation Zone.

(5) Jointly promote the international commercial dispute resolution business

Hong Kong has a pool of experienced professionals in legal and dispute resolution services, and is also the only common law jurisdiction within China. Shenzhen has been actively developing a one-stop dispute resolution platform for mediation, arbitration and litigation, and a huge market has been created by the policies on Qianhai and the Guangdong-Hong Kong-Macao Greater Bay Area (GBA). Hong Kong's legal and dispute resolution services sector shall make good use of the measures under the Qianhai Plan, while following the principle of complementary and mutually beneficial as well as joint construction and shared benefits, to complement Qianhai's development, so as to jointly promote the international commercial dispute resolution business.

Following the successful rollout of the GBA Legal Professional Examination, more legal practitioners who are familiar with the legal matters of the two places will be available for Qianhai Cooperation Zone and the GBA, enabling the effective implementation of above policies. As such, we believe that more enterprises will be attracted to invest in the GBA.

The DoJ and the Department of Law of the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region, with the support of the Hong Kong Law Society of Hong Kong, will co-host a seminar on Hong Kong legal professionals' practice and other opportunities in the GBA this Thursday (September 9). It is our honour to have the Central Government officials to explain to the Hong Kong sector on the policies beneficial to Hong Kong and the opportunities in the GBA. Different sectors of Hong Kong should, on the premise of "one country, two systems" and under the principle of pursuing mutual benefit and win-win co-operation, continue to integrate the needs of the country with the strengths of Hong Kong, and further enhance the city's advantages, in order to foster the long term development of Hong Kong, the GBA and our country, and more importantly, to strengthen Hong Kong people's sense of belonging to the nation and boost their national identity.

September 07, 2021

In February this year, the DoJ, through touring drama performances for all city-wide primary schools, conveys the basic concepts of the rule of law and cultivates law-abiding awareness in a lively and interesting way to students. As to secondary students, the DoJ supports the launch of the “Pilot Scheme on Rule of Law Education for Secondary School Students” by the Hong Kong Policy Research Institute (HKPRI) in the 2020/21 academic year. Lawyers were invited to serve as facilitators while law students and graduates as ambassadors. Secondary students are able to grasp the proper core concepts of the rule of law after taking part in seminars, interactive games and group discussions.

The DoJ also assists the preparation of teaching materials on the rule of law. For instance, the Basic Law Foundation’s “e-Resources for Rule of Law and the Basic Law”, which was supported by the DoJ, provides a series of teaching materials on the Constitution, the Basic Law and the rule of law for teachers of secondary schools. At the same time, the DoJ is in support of the training course “Respecting the Law, Reinforcing the Rule of Law” co-organised by the Endeavour Education Centre and the Education Bureau for teachers from both primary and secondary schools. The course covers topics including the Constitution, the Basic Law, national security, Hong Kong’s legal system and the rule of law, etc., with a view to fostering the promotion of the rule of law education.

In the new school year, the DoJ will not only continue the above programmes, but also stand ready to introduce the “Rule of Law Enlightenment” Programme to further promote the rule of law in a more interesting way with enriched contents. To name a few:

• School talks: students can raise questions at the talk to enhance interaction;
• Prosecution Week: Quiz and visit to courts will be arranged for students;
• Rule of Law Journey: students can learn more of the legal development through visits to the Hong Kong Legal Hub.

To highlight the importance of abiding by the law and the application of law in our daily life, the DoJ will organise a law quiz competition for primary students. A video competition will be held in which secondary students are encouraged to share their thoughts on the rule of law.

If you are interested in any of our programmes, please don’t hesitate to read the latest booklet on “Vision 2030 for Rule of Law”.

The rule of law is the cornerstone of Hong Kong’s success. Everyone in society shoulders the responsibility to promote the proper concept of the rule of law. I would like to thank the HKPRI, the Basic Law Foundation and the Endeavour Education Centre for joining hands with the DoJ in supporting the rule of law education. The DoJ will actively strengthen the rule of law education so as to further enhance the proper understanding and practice of the rule of law amongst youth.

September 04, 2021

The students first stopped by the Function Hall on the first floor of the Justice Place. It was the Legislative Council Chamber a long time ago before becoming the venue for the Government to host important events, such as the announcements of the Policy Address and the Budget. Afterwards, they visited the former Executive Council Chamber where antique chairs and table are preserved. The students were explained that the political structure in Hong Kong is an executive-led system headed by the Chief Executive, and the executive authorities, the legislature and the judiciary perform their respective functions under the executive-led system in accordance with the Basic Law and complement each other.

At the Legal Hub, known as the West Wing of the former Central Government Offices where many offices of the law-related organisations specialising in different legal or dispute resolution services are located nowadays, the students appreciated that it has reflected Hong Kong's status as a leading centre for international legal and dispute resolution services in the Asia-Pacific region. This is also the objective as set out in the National 14th Five-Year Plan and the development of the Guangdong-Hong Kong-Macao Greater Bay Area.

The visit to the former French Mission Building was the highlight and the finale of the journey. The building was declared as a monument in 1989. It was a temporary residence for the first Governor and later the Russian Consulate, and subsequently acquired by the Missions Étrangères de Paris in 1915 and rebuilt. After the Second World War, the Hong Kong Government purchased the building housing various departments, the Victoria District Court and the Supreme Court. Since Hong Kong’s return to the Motherland, it was the home of the Court of Final Appeal (CFA) until 2015. After the CFA was relocated, the building was incorporated into the Legal Hub project, and is currently used by international legal organisations as their offices.

Apart from the granite columns, verandahs and balustrades, the cupola and the chapel, the students were impressed by our independent judiciary, the corner stone of Hong Kong’s prosperity and stability under the “one country, two systems”. They came to understand that our judicial independence is premised on the solid infrastructure that has been laid down in the Basic Law, including the security of tenure, the immunity of judges, the non-revolving door, and importantly the expressed provision in Article 85 of the Basic Law that guarantees judicial independence, free from any interference. All judges are required to safeguard the rule of law and administer justice without fear or favour. Our judicial system is highly regarded and internationally recognised, as demonstrated by the fact that Hong Kong cases are cited in overseas jurisprudence from time to time and eminent judges of the courts of other common law jurisdictions sit on our CFA.

The “Rule of Law Journey” is one of the projects under the 10-year initiative “Vision 2030 for Rule of Law”, aiming to enhance the understanding of the rule of law among young people, in particular students. In addition to this programme, we have organised a series of activities which will enable the youth to better understand the law and develop the culture of lawfulness. I will be happy to give you more details about the activities at the start of the new school year, hoping that our initiatives will contribute to a fair and rule-based society underpinned by the rule of law.

August 30, 2021

Hong Kong’s economy, irrespective of outbound investment by Mainland enterprises or overseas investment into the Mainland through Hong Kong, is closely linked with China. The capitalist system under the “one country, two systems” is supported by the common law with our legal sector playing an important role in upholding the rule of law and maintaining the prosperity and stability of Hong Kong. Given that the business development of legal profession is closely related to that of the country, it is necessary for legal bodies to communicate with the Mainland authorities on behalf of Hong Kong’s legal sector in a bid to promote our legal services and explore new markets.

The Guangdong-Hong Kong-Macao Greater Bay Area (GBA) is a key development strategy of the country. Enterprises in the GBA have been benefitted from the economic growth, resulting in an upsurge in investments and transactions, as well as the demand for legal and dispute resolution services. Being the only common law jurisdiction in China, Hong Kong’s legal and dispute resolution sector should leverage the unique advantage under “one country, two systems and three jurisdictions” in the GBA and integrate into the overall development of our country.

With the support of the Central Government, a number of initiatives in the GBA have been gradually implemented. The GBA Legal Professional Examination was held successfully. It will bring tremendous opportunities in the GBA to Hong Kong’s legal sector. Mainland lawyers and Hong Kong legal practitioners who have obtained practice qualifications in the GBA may join hands and complement each other to provide the GBA enterprises with both Hong Kong and Mainland legal services and safeguards, leading to a win-win situation which is the best embodiment of the mutually beneficial relationship.

In addition, the Department of Justice has rolled out a number of measures with the Mainland to explore markets for the legal sector. These include the co-operation mechanism on cross-boundary insolvency and debt restructuring between the Mainland and Hong Kong, the arbitration interim measures arrangement, the setting up of the Greater Bay Area Mediation Platform, the removal of the minimum capital injection ratio by Hong Kong partner firms in partnership associations, and the relaxation of the requirements for Hong Kong legal practitioners to be retained as legal consultants by Mainland law firms, etc. The introduction and continuous implementation of these measures for our legal profession are attributed to the upholding of the “one country, two systems” and strong support for Hong Kong by the Central Government.

During my visit to Beijing last month, I called on a number of Mainland ministries. The officials have shown their clear support for the implementation of “one country, two systems” in Hong Kong. Under the “one country, two systems”, Hong Kong’s capitalist system, which has been working smoothly, is supported not only by our common law system that provides a certain and predictable legal framework, but also a stable environment for investors. So long as we all genuinely adhere to the principle of “one country”, respect and fully implement “one country, two systems”, and stay true to the original aspiration of the Basic Law - safeguarding national sovereignty, unity and territorial integrity, maintaining Hong Kong’s prosperity and stability, I have full confidence that the common law will continue to apply in Hong Kong. On this, the Hong Kong legal sector has a significant role to play. We should also stay vigilant against the dissemination of corrupted ideology through different channels by anti-China disruptors who attempt to undermine the stable development of Hong Kong.

I have signed four arrangements in Beijing, fostering the legal exchanges between the two places and further promoting our legal, dispute resolution and deal-making services. In order to seize the opportunities and benefit from these measures, the legal sector has to move in the right direction whilst reinforcing its strength. We should also continue to discharge our functions as a lawyer in a professional and objective manner, contributing to the rule of law in Hong Kong and the Motherland.

Recently, I am aware of views that legal bodies are neither political parties nor political organisations and should therefore strive to maintain their professionalism rather than politicisation. I fully agree. Our legal professionals should use their expertise to uphold the rule of law and promote legal services, maintaining professionalism as expected by the legal industry and the community; continue to adopt the self-regulatory regime in the areas of profession and practice; enable members of the legal sector to capitalise on their legal talent, thereby broadening the scope of service and welcoming a brighter and better future.

August 16, 2021

Sovereign equality and the principle of non-intervention

From the international law perspective, sovereign equality is a basic norm of international relations and a fundamental principle of international law, with the Charter of the United Nations (UN) expressly setting out this principle¹, adding that nothing contained in the Charter shall authorise the UN to “intervene in matters which are essentially within the domestic jurisdiction of any state²”.

The principle of non-intervention is an important concept central to sovereign equality. The United Nations General Assembly unanimously adopted in 1970 the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (“Friendly Relations Declaration”), which declares, among others, that “[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law”. The International Court of Justice in its judgment³ in 1986 reaffirmed non-intervention as a principle of customary international law.

Sanctions by the UN

Under international law, sanctions should be brought only in very limited circumstances which constitute a threat to international peace and security, such as dealing with terrorism or nuclear proliferation, etc., and in an appropriate forum, which is the UN Security Council. When instructed by the Central People’s Government to implement any UN sanctions, the HKSAR Government would make regulations under the United Nations Sanctions Ordinance (Cap. 537) to give effect to the relevant instruction. This mechanism has been in place for years and by which we have implemented a number of UN sanctions in the HKSAR.

Unilateral coercive measures

Other so-called “sanctions” without the authorisation of the UN Security Council, better described as unilateral coercive measures, are contrary to international law and the UN framework, and most importantly violate the principle of non-intervention under international law.

We can see examples where States unilaterally impose coercive measures on other States or individuals with a view to exerting coercion or achieving implicit subjugation. Evidently, these are done with a political motive in mind, intending to suppress the actions of the effected State or individual, and trying to interfere with the internal affairs or exercise of sovereign power of the State. For example, following the enactment of the National Security Law, a number of foreign countries imposed unilateral coercive measures on government officials of the PRC and the HKSAR, suspending surrender of fugitive offenders agreements, and revoking Hong Kong’s special trading status as a separate customs territory and relabeling of exports from Hong Kong.

Measures that have not been taken with authorisation of the United Nations Security Council are “unilateral coercive measures”, breaching the international law principles of sovereign equality and non-intervention, and a major barrier to international peace and stability.

Countermeasures taken in response to unilateral coercive measures

Unilateral coercive measures are without a doubt at odds with the principle of non-intervention, unbecoming of any civilised nation, and a hindrance to international peace and stability. In the face of international illegal acts, a State is justified in deploying any countermeasures as a response to a breach of the principle of non-intervention against itself. Such countermeasures are an accepted practice under international law, and the rules on their use have been formulated under international instruments, notably the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC’s Draft Articles) adopted by the International Law Commission in 2001.

In accordance with the ILC’s Draft Articles, a State that is subjected to unilateral coercive measures would be entitled to impose countermeasures as set out under Article 22 of the ILC’s Draft Articles. The ILC’s Draft Articles further provide in Chapter II of Part Three for, inter alia, the requirements of refraining from the threat or use of force, and any countermeasures being proportionate.

Anti-sanction Law is an accepted and legitimate practice under international law

In the Explanatory Note on the Draft Anti-sanction Law, the three necessities for legislating the Law are clearly set out. China is entitled to impose countermeasures in response to unilateral coercive measures taken by foreign States and the Law provides the legal framework for the countermeasures to be implemented. It states unequivocally that it has to be applied within the whole of China. As it is a national law, and as the imposition of countermeasures is entirely a matter of foreign affairs, the most natural and appropriate way for it to be introduced to the HKSAR would be to add it to Annex III to the Basic Law in accordance with Article 18 of the Basic Law. This of course is a matter for the NPCSC to decide after consultation with the Basic Law Committee and the HKSAR Government.

The Anti-sanction Law of the PRC was enacted as a countermeasure in the face of unilateral coercive measures which are prohibited under international law. Not only is the enactment of this Law legitimate, reasonable and fair, it is also in conformity with the requirements relating to countermeasures as set out in the ILC’s Draft Articles highlighted above.

Concerns have been expressed about the impact of the Anti-sanction Law introduced by China. Yet, the more appropriate questions to be asked are first, why does a foreign State interfere with China’s exercise of its sovereign rights to legislate national security laws, and secondly, why should a State or group of States be allowed to impose unilateral coercive measures against other States and legislate “long-arm” statutes purporting to enforce such internationally wrongful acts without consequences. It is these foreign States that impose unilateral coercive measures that should be condemned and it is they that the international community should be concerned about. At this point, one cannot help but recall the treacherous and despicable acts by certain anti-China disruptors who relentlessly and shamefully seek foreign States to impose sanctions against China including Hong Kong. No one who loves China and Hong Kong would embark upon such abominable and contemptible acts.

As can be seen in the Explanatory Note, the Law will provide a legal basis by which the countermeasures are to be implemented and enforced. It will supplement the legal tool box countering unilateral coercive measures, interference and long-arm jurisdiction of foreign States with a view to resolutely safeguarding national sovereignty, dignity and core interests of our motherland.

¹ See Article 2(1) of Chapter 1 of the United Nations Charter.

² See Article 2(7) of Chapter 1 of the United Nations Charter.

³ Military and Paramilitary Activities in and against Nicaragua. The judgment of the International Court of Justice acknowledged that the principle of non-intervention “forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States”(see para. 205 of the judgment of the International Court of Justice).

August 08, 2021

The GBA Exam originally scheduled to be held earlier this year was postponed due to the pandemic. The MoJ then decided to set up new examination venues in Hong Kong in addition to those in Shenzhen and Zhuhai, and signed a memorandum of understanding with the Department of Justice (DoJ) for the DoJ to co-ordinate with the Hong Kong Examinations and Assessment Authority to handle examination-related work. Such arrangement has brought great convenience to Hong Kong candidates.

Thanks to the MoJ's staunch support all along, the GBA Exam was set up in response to the suggestions and aspirations of the Hong Kong legal sector. It will no doubt provide an extensive arena for the sector's development in the Mainland. Relevant pre-examination legal training was organised by the MoJ for candidates sitting the GBA Exam. For those who have passed the GBA Exam, practical training courses on Mainland laws, to be arranged by the DoJ in co-operation with Mainland organs like the Supreme People's Court, will be provided to enhance their practical knowledge on Mainland courts' handling of different areas of civil and commercial matters.

The GBA Exam is a liberalisation measure under the CEPA. After passing the examination and obtaining the relevant practice certificate, Hong Kong legal practitioners, including solicitors and barristers, with accumulated legal practice experience of five years or above, are allowed to provide legal services in the nine Mainland municipalities in the GBA on specified civil and commercial matters (including litigation and non-litigation matters) to which the Mainland laws apply. They will also enjoy the same privileges and under the same obligations as Mainland lawyers. In the nine Mainland municipalities in the GBA, they can be retained by Mainland law firms and partnership associations of Mainland law firms and Hong Kong or Macao law firms, and can become partners of Mainland law firms.

The GBA Exam not only offers significant opportunities and practical experience for the Hong Kong legal sector in the GBA, but also provides clients in the GBA (including wholly-owned Hong Kong enterprises) Hong Kong and Mainland legal services and safeguards, which are conducive to the enhancement of legal services and the building of rule of law environment in the GBA, thereby promoting closer integration of legal services in the area to attract more investments. The GBA Exam has also laid a foundation on co-operation channels in the future and deepened the exchanges between the legal sectors of both places, thereby achieving the goal of mutual benefits.

If the results of the GBA Exam are satisfactory, I hope that the coverage of the Exam will be further extended.

Once again I would like to express my wholehearted thanks to the MoJ for creating opportunities for the Hong Kong legal profession. I hope that very soon our legal practitioners will have better developments in the Mainland, and at the same time, they will contribute to the building of rule of law for our country.

July 31, 2021

Since the NSL has taken effect, it halted the chaos and restored the order in our society. Vigilantism are no longer prevalent and people are free to voice different views openly. Our love for Hong Kong and our motherland can be expressed in an open and aboveboard manner, and people are more respectful of the rights of others while exercising their own. Even though many western countries have launched malicious attacks on the NSL either out of misunderstanding or with a deliberate attempt to mislead, our economic data in the past year, including the funds raised through initial public offerings and the total deposits in the Hong Kong banking system, has proved that Hong Kong's business environment is becoming more attractive, and that international investors' confidence in Hong Kong has been enhanced rather than deterred. These hard facts can surely debunk the lies smearing the NSL.

Mr Xia mentioned in his speech that with the NSL in place, the HKSAR has established a "firm wall made of bronze and iron" in safeguarding national security. He said that officials and patriots in the HKSAR have acted fearlessly in the face of illegal and groundless sanctions by the United States, showing their unwavering love for the country. Meanwhile, the Hong Kong Police, being the loyal guardians of the city's stability and national security, have been strictly enforcing the NSL.

Hong Kong's destiny has always been closely linked to that of our motherland, and Hong Kong people have been contributing to the country in different eras. The central authorities will continue to uphold the principle of “one country, two systems” unswervingly, ensuring its full implementation without being altered or deformed. This year marks the 100th anniversary of the founding of Communist Party of China (CPC). General Secretary of the CPC Central Committee and President Xi Jinping pointed out that the second centenary goal is to build China into a great modern socialist country in all respects. But where will the future of the implementation of "one country, two systems" in Hong Kong lie? I am of the view that one must understand "one country" is the prerequisite of "two systems". By building a solid foundation of "one country" with the full implementation of the NSL and strictly adhering to the "one country, two systems" principle, the "two systems" can make the most of its competitive edges. Hong Kong will definitely have a brighter future with "Security" bringing "Prosperity".

It is therefore necessary to have the NSL to foster Hong Kong’s immense potential for further development. The responsibility of in-depth implementation of the NSL should be shouldered by our society as a whole. The Department of Justice, apart from handling cases of endangering national security strictly in accordance with the NSL and local laws, will also step up the promotion of the national identity among different sectors of the community, enhancing their correct understanding of the Constitution, the Basic Law and the NSL.

A solid system needs an efficient administration for implementation. In addition to genuinely upholding the Basic Law, bearing allegiance to the country and the HKSAR, possessing talents and virtues as well as the administrative capabilities, the governing team should also fulfil five specific requirements as pointed out by Mr Xia: (1) being staunch patriots; (2) having strategic thinking and a broad vision to resolve tough problems with a strong sense of responsibility; (3) serving the public with practical actions; (4) rallying and uniting all sectors; and (5) acting in the best interest of the country and the city and perform their duties faithfully.

The stronger the bottom line of "one country", the greater the room for "two systems", and hence a better tomorrow for Hong Kong.

July 17, 2021

The forum comprised keynote speeches highlighting the features and effects of the NSL, as well as three panel discussions. One of the panel discussions was conducted by four scholars to compare the national security laws of various jurisdictions. The four types of offence set out under the NSL are in fact similar to those in foreign countries. Some countries vest more drastic powers in their law enforcement agencies than those in Hong Kong under the NSL. A speaker even pointed out that there is a country which could put people, who are suspected of endangering national security, in detention without charge for two years.

You are all welcome to review the forum at DoJ’s website to learn more about the NSL

On the night of July 1, a man attempted to murder a police officer on duty before committing suicide. Initial investigations by the police indicated that it is a “lone wolf-style act of domestic terrorism”. As the investigation is still ongoing, no one should comment on the case details. However, I would like to briefly explain some legal principles so that the public can have a proper understanding.

Article 27 of the NSL specifies the offence of “advocating terrorism”. According to the opinion of a textbook on the NSL, “advocating” refers to the act of propagating, defending or glorifying the theory and practice of terrorism. On “advocating terrorism”, no one could use freedom of speech, of publication or of the press, etc, as an excuse to advocate or defend terrorist activities and such beliefs or theories, and must not promote or cheer for the “mutual destruction” slogans and propositions that would endanger the safety of public lives and properties or disrupt public order. In fact, many countries such as the United Kingdom, Australia and France have already put in place relevant laws to prohibit advocating or glorifying terrorism.

There is an assertion that only attacks targeting civilians are considered terrorism, whereas those targeting the authorities or law enforcement personnel do not constitute terrorism. However, one could easily tell, by making reference to the United Nations Security Council resolutions and anti-terrorism laws of different countries, that serious criminal acts, irrespective of their targets being civilians or any particular persons, with the purpose to provoke a state of terror in order to compel a government, are regarded as terrorism. Such common sense is however distorted by some so-called “scholars”. It is truly disgraceful of those teachers to have misled their students and set a bad example.

A number of people wrongly described criminal acts as “heroic”. Some even brought their children to express “condolences” by leaving flowers at the crime scene. There is also a student organisation expressing “gratitude” to the assailant. No sensible person would have agreed to glorify those criminal acts. Such perverse practices are immoral and confusing right from wrong.

Let’s imagine, what would be the consequence if terrorist activities have been imitated by others? Legally speaking, everyone should be prudent and make his or her remarks responsibly. No one should glorify or advocate terrorist activities. Morally speaking, no one should directly or indirectly advocate or heroise terrorism as it depraves society.

I hope the above could raise the vigilance towards terrorist activities and advocacies of terrorism, so that people would not blindly believe in twisted facts against their conscience. I also wish that all of us appreciate the stability and prosperity brought about by the NSL. So, let’s join hands together to achieve our common goal of “Security Brings Prosperity”.

July 10, 2021

The Opium War marked a turning point in the Chinese history. China was since then reduced to a semi-colonial and semi-feudal country. Established in 1921, the original aspiration and the mission of the Communist Party of China is to seek happiness for the Chinese people and rejuvenation for the Chinese nation. The Party also recognises the importance of acting on the people-centred philosophy of development, successfully turning our country gradually from poverty to prosperity. In the fight against poverty, our country has adopted a basic strategy of targeted poverty alleviation, yielding significant achievements. According to the white paper on “Poverty Alleviation: China's Experience and Contribution” published earlier this year, more than 770 million of China's rural population living below the current poverty line have been raised from poverty since reform and opening up, accounting for more than 70% of the global total over the same period according to the World Bank's international poverty standard. China has won the battle against extreme poverty and achieved the poverty alleviation goal set on the UN 2030 Agenda for Sustainable Development 10 years ahead of schedule, earning critical acclaim internationally.

The Communist Party of China leads the nation to overcome obstacles and has developed the theoretical system of socialism with Chinese characteristics after the reform and opening up. The amendment to the Constitution was also adopted in 2018, expressly setting out the fundamental system of our country in the Preamble and Article 1. China has realised in just a few decades that took the developed Western countries several centuries on industrialisation, achieving the common goal shared by the Party and the people, as well as making our country stronger and prosper.

At the same time, science and technology in our country have developed rapidly. President Xi Jinping, also the general secretary of the Communist Party of China Central Committee, pointed out that “core technologies may not be available when needed, cannot be purchased when needed, and are not always available on demand. Only by grasping key and core technologies within our own hands can we fundamentally guarantee national economic security, national defense security, and other securities.” Our country has successfully enhanced the capacity for independent innovation, allowing the spread of spirit of scientist and patriotism, improving the preparedness in the battle of core technologies.

Under the direction of the Communist Party of China, the Central Authorities put forward the idea “one country, two systems”, which is an innovative constitutional concept, to ensure Hong Kong’s smooth transition and return to the motherland. It also led to successful resolutions of the unequal treaties and the historical Hong Kong question, providing a good example for implementation of the international law. Echoing the preamble of the Basic Law, the aspiration of “one country, two systems” is to uphold the national sovereignty, unity and territorial integrity, as well as to maintain the prosperity and stability of Hong Kong.

Since Hong Kong's return to the motherland 24 years ago, our citizens enjoy a safe place to live and work whilst our community has been growing well, ensuring the long-term success of “one country, two systems” with the support of our country.

National security is an issue of top priority for any State in the world. The Central Authorities, in accordance with the Constitution and the Basic Law, authorised the Standing Committee of the National People’s Congress to enact the National Security Law to plug the loophole in national security. Hong Kong has reverted to a safe, rational, inclusive and vibrant society which ensures the smooth implementation of the “one country, two systems”.

As pointed out by President Xi, political security is of overarching importance. Top priority has been therefore given to political security in order to maintain the safety of the political system and state power with a view to providing a strong and fundamental political underpinning. “The Decision of the National People’s Congress on improving the electoral system of the HKSAR” was passed to improve the electoral system aiming at a more balanced and orderly political participation as well as a broader representation of society, in a bid to form a new democratic electoral system suited to Hong Kong’s realities and with Hong Kong characteristics. The operation of the Legislative Council (LegCo) will resume normality. The Government and the LegCo are able to put the focus on people’s livelihood and economic development. The principle of “one country, two systems” can be fully and faithfully applied in Hong Kong.

To enhance the understanding and awareness of the national security among the community, the Department of Justice will organise an online legal forum “Security Brings Prosperity” on July 5, bringing together legal experts to discuss and exchange views on the application and interpretation of the National Security Law. You are all welcome to visit the dedicated webpage for registration.

July 1, 2021

A number of professionals, coming from legal and dispute resolution, financial and business sectors, were invited to share their experience and explore Hong Kong’s unique advantages from different perspectives. They all agreed that Hong Kong is still the best place for investment, deal-making and dispute resolution services, thereby reaffirming Hong Kong’s irreplaceable position to the international community.

Why Hong Kong? What is the competitive edge of Hong Kong? Let me explain from three aspects.

(1) Robust legal infrastructure and financial system

Law and finance are closely intertwined. Hong Kong has a strong legal infrastructure and financial system, which offer a business-friendly environment and a level playing field to international business community. Hong Kong’s solid legal foundation includes the well-tested common law system and an open, transparent and independent judiciary.

As the only common law jurisdiction in China, Hong Kong’s judicial independence and rule of law have been highly regarded internationally. Article 85 of the Basic Law stipulates that the courts of the Hong Kong Special Administrative Region (HKSAR) shall exercise judicial power independently, free from any interference. Meanwhile, Hong Kong cases are often cited in overseas jurisprudence evidencing the confidence and respect of the global legal community in Hong Kong’s judicial and legal systems. As pointed out by the Chief Justice of the Court of Final Appeal at the Ceremonial Opening of the Legal Year 2021, “[a]n independent judiciary is essential to the rule of law in Hong Kong and the due administration of justice. It is equally crucial to public and business confidence - whether local or overseas - in our judicial system, as well as to the international reputation of Hong Kong as a society that is governed by the rule of law under the ‘one country, two systems’ arrangement.”

According to the late Chief Justice of the United Kingdom, Lord Bingham, the meaning of “judicial independence” is “independent in the sense that they (adjudicators) are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial”. Our judicial independence is premised on the solid infrastructure that has been laid down primarily in the Basic Law. Judges discharge their judicial functions in accordance with law and evidence, free from any interference. I fully agree with the statement made by Lord Sumption, a Non-Permanent Justice of the Hong Kong Court of Final Appeal, published in The Times in March: “The permanent judiciary of Hong Kong is completely committed to judicial independence and the rule of law. Successive chief justices have made this clear in public statements. These statements are not just lip service. They represent the convictions of experienced, courageous and independent-minded judges.”

At the same time, Hong Kong has a robust financial system with independent regulatory bodies such as the Hong Kong Monetary Authority and the Securities and Futures Commission overseeing the normal operation of the financial market.

Financial laws and initiatives in Hong Kong are conducive to business development. For instance, the subsidy schemes launched by the Government to capture various emerging opportunities, the Limited Partnership Fund Bill passed in July 2020, the Inland Revenue (Amendment) (Tax Concessions for Carried Interest) Bill 2021 passed this April, and the legislative proposals of introducing a fund re-domiciliation mechanism in Hong Kong, will all help attract more investment funds to set foot in Hong Kong, entrenching Hong Kong’s position as an international financial centre.

(2) Hong Kong has professionals equipped with international perspectives

A robust system also needs to be backed by a sufficient amount of professionals and bodies. As a pluralistic and open international hub, Hong Kong has a pool of experienced professionals with international perspectives not just in legal and dispute resolution sectors but also in areas such as financial services, accounting, engineering, shipping and information technology.

In respect of the legal sector, we have about 12,500 barristers and solicitors, and more than 1,525 registered foreign lawyers from different jurisdictions as well as 86 foreign law firms in Hong Kong at the moment, providing services on cross-border and international legal issues.

As a seat of arbitration, Hong Kong is consistently in the top league in the world ranking. Hong Kong is ranked the third most preferred seat for arbitration worldwide by the 2021 International Arbitration Survey released by Queen Mary University of London recently in May. It is a recognition of our long-standing and unwavering commitment to the promotion of arbitral services.

(3) Ample business opportunities

Hong Kong offers first-rate professional financial services, providing local, the Mainland and overseas companies a sound business environment. The data below fully demonstrates Hong Kong’s position as an international financial centre:

(i) Hong Kong has one of the world’s most vibrant equity markets. In seven of the past 12 years, Hong Kong has been the number one initial public offering (IPO) venue globally. In 2020 alone, HK$397.5 billion were raised in the Hong Kong IPO market - the highest amount raised in a single year since 2010.

(ii) Hong Kong is the world's largest offshore Renminbi (RMB) business hub, handling more than 70 per cent of global offshore RMB payments. The total deposits reached RMB788.8 billion at the end of February 2021.

Meanwhile, Hong Kong enjoys distinctive advantages under the “one country, two systems”. In the Outline of the 14th Five-Year Plan and the Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area (GBA), the Central Government explicitly supports Hong Kong to enhance its status in the “four traditional sectors” - as international financial, transportation and trade centres as well as a centre for international legal and dispute resolution services in the Asia-Pacific region. Leveraging the unique feature of the “one country, two systems and three jurisdictions” in the GBA, the Department of Justice has been actively implementing new measures, such as:

(i) Co-operation mechanism for cross border insolvency and debt restructuring

The record of meeting concerning mutual recognition of and assistance to insolvency proceedings between the courts of the Mainland and the HKSAR was signed with the Supreme People’s Court and on May 14, initiating the co-operation between the Mainland and Hong Kong on mutual recognition of and assistance to insolvency and debt restructuring proceedings.

This new co-operation mechanism has achieved two major breakthroughs: Hong Kong becomes the only jurisdiction outside the Mainland where mutual recognition of and assistance to insolvency proceedings are allowed; and the mechanism expressly covers bankruptcy compromise and reorganisation in the Mainland as well as debt restructuring in Hong Kong, which is much more extensive and in-depth than the relevant provisions in the UNCITRAL Model Law on Cross-Border Insolvency issued in 1997.

(ii) Interim measures arrangement for arbitration

With the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR taking effect in October 2019, Hong Kong became the first jurisdiction outside the Mainland where, as a seat of arbitration, parties to arbitral proceedings are able to apply to the Mainland courts for interim measures (such as property freezing and evidence collection). As of May 21, the total value of assets preserved under the Arrangement amounted to approximately USD 1.6 billion.

These arrangements are unique to arbitration and legal proceedings in Hong Kong. They facilitate the development of the business and legal sectors in the GBA and then the entire Mainland.

Looking forward, the shift of the global economy is moving to Asia. The webinar series answered some “Why Hong Kong” questions, and further promoted the international community's understanding of Hong Kong unique advantages, which in turn strengthened the confidence in Hong Kong’s long-term economic development and competitiveness. I look forward to our continued co-operation with the AAIL to illustrate Hong Kong’s irreplaceable role to different sectors.

June 28, 2021

Aligns with existing regime and merit-based selection principles

In accordance with the existing arrangement, an eligible barrister may apply for appointment as Senior Counsel. The Chief Justice, may, after consultation with the Chairman of the Bar and the President of the Law Society, make the appointment. According to section 31(A) of the Legal Practitioners Ordinance, the eligibility requirements for the appointment include: (1) sufficient ability and standing, sufficient knowledge of law; (2) requisite experience; and (3) practising as an advocate. The proposal does not change the current regime and the criteria for appointment. I trust that the Chairman of the Bar and the President of the Law Society would duly consider the eligibility of each applicant before tendering their fair and honest advice to the Chief Justice for his consideration.

Therefore, the proposal does not change the necessary ability and experience required by Senior Counsel and aligns with the merit-based selection principle.

Legal officers perform both advocacy and non-advocacy duties

The functions of legal officers and private legal practitioners are different. The proposal reflects the fact that there is no practical distinction between the duties of legal officers who are solicitors or barristers.

Legal professionals in private practice are broadly categorised into two main streams: solicitors and barristers. However, legal officers in the Government, regardless of whether they are solicitors or barristers, have the rights of audience at all levels of courts. In fact, legal officers perform both solicitorial and advocacy duties. In other words, legal officers who are not admitted as a barrister in Hong Kong can also be assigned with advocacy duties. Legal officers who have satisfied the eligibility requirements under section 31(A) of the Legal Practitioners Ordinance deserve the same opportunity for consideration to be appointed Senior Counsel as a recognition of their competence. The different role of solicitors and barristers in private practice would not be confused if one apprehends a good understanding of the work of legal officers.

The proposal is in the public interest

In addressing the Ceremony for the Admission of the New Senior Counsel, the Chief Justice expressed that “[t]he power of appointment, like all public law powers, must be exercised for the furthering of the public interest. Indeed it is this public interest that underscores the unique status and responsibilities of the rank of Senior Counsel… As a badge of responsibility, it denotes our community’s trust and expectation that an appointee will put his or her excellence and experience to good use by faithfully discharging the responsibilities placed on them, thereby serving the public interest.”

The proposal encourages legal officers who shoulder important public functions and enables them to be recognised by judicial and legal sectors for their excellence, which is in line with the public interest.

Arrangement for outgoing legal officers

The proposal suggests that legal officers, who are appointed as a Senior Counsel in the new regime and left the Government service, shall no longer carry the title of Senior Counsel.

Matters relating to private practice should be dealt with by the self-regulatory regime, which is duly respected, in accordance with the established procedures and rules of the legal professional bodies.

All legal officers, regardless of solicitors or barristers, deserve fair treatment and rights. In recognition of their competence and achievements, legal officers should be equally eligible for appointment as Senior Counsel upon satisfying the requirements under section 31(A) of the Legal Practitioners Ordinance.

June 12, 2021

(1) Mediate disputes in family office and private wealth sectors

Using mediation in resolving disputes in private wealth and asset management is a relatively new area. Family offices and wealth management services have grown exponentially in Hong Kong, usually involving family wealth being managed for family purposes. If and when disputes arise between members of the family, trustees and beneficiaries, it is much more sensible for mediation to be used as an amicable and confidential resolution mechanism, where each family member can voice out their underlying issues and concerns in the process. Family members from different generations can acknowledge the views and needs of each other and work out a mutually agreeable roadmap together. Resolving disputes amicably lays a solid foundation for the smooth operation of the family business in the long run.

(2) Mediation in healthcare disputes: A viable alternative

Mediation techniques are in particular suitable for clinical services in order to avoid disputes. The feelings and emotions experienced by healthcare practitioners, patients and their family in the clinical setting may easily cause conflicts or misunderstandings. By using mediation skills, mutual understanding and communication will be enhanced. Disputes between medical staff and patients can also be resolved through a third party by means of mediation. Further, the Apology Ordinance, which came into effect in 2017, allows medical practitioners to express their sympathies or apologies to patients without concerns of admitting liabilities on their part. This helps prevent medical disputes from escalating.

(3) Use of mediation for employees’ compensation claims

Additionally, mediation plays a key role in resolving employees’ compensation claims. It can address the disputes involving work injuries in a more humane and sensitive manner, thereby preserving the employer-employee relationship whilst saving costs and time as compared to litigating the claim. The Legal Aid Department is supportive of the use of mediation in legally aided cases, and seeing that mediation can assist all parties to reach a mutually agreeable outcome, we will continue our efforts to promote “Mediate First” in this area.

Last but not least, I would like to extend my congratulations to the 34 “Mediate First Pledge Star Logo” awardees for their active involvement in this meaningful campaign. As we have covered how to “Unlock the Potentials” of mediation in the “Mediate First” Pledge event in 2019, we hope that the event this year can “Anchor the Future” and set the scene for the rapid development of mediation. We will continue to roll out various initiatives to capitalise on the benefits and advantages that mediation can bring to the table.

June 6, 2021

When improving the electoral system of a place, one would take into account the historical background, cultural diversity, political thoughts, and inevitably the historical and current state of political development and the actual circumstances there. The Standing Committee (SC) of the NPC, in deliberating the amendments to Annexes I and II to the Basic Law, has already taken into consideration the actual situation in Hong Kong. Certain overseas politicians alleged again that the legislation “defies” the objective of universal suffrage as set out in the Basic Law. However, it should be pointed out that the ultimate aim of universal suffrage, to be achieved in light of the actual situation in Hong Kong and in accordance with the principle of gradual and orderly process, as specified in Articles 45 and 68 of the Basic Law, remains unchanged.

The NPCSC adopted the amended Annex I and Annex II to the Basic Law on March 30. Since then, my colleagues and I have met with various organisations and individuals from the legal and dispute resolution sector to explain to them the improvements to the electoral system. At the Bills Committee meetings, the Government categorised the policy with the related main ordinance and subsidiary legislations, which offered LegCo members a good grasp of the content and its implementation in the course of scrutiny.

The Election Committee is now entrusted with two new functions: (1) electing 40 legislators, and (2) nominating candidates for the LegCo election. These are two important aspects of the electoral system. Through the reconstituted Election Committee, the balanced and orderly political participation of the Hong Kong community is enhanced and broader representation is ensured. As such, the Election Committee is like the ballast of the new democratic electoral system, ensuring the overall interests of society, so as to fully and faithfully implement the policy of “one country, two systems”.

The newly established Candidate Eligibility Review Committee will be responsible for assessing and validating the eligibility of candidates for the Election Committee members, the Chief Executive and the LegCo members, ensuring their qualifications are in conformity with the Basic Law, the Hong Kong National Security Law, NPCSC’s interpretation of Article 104 of the Basic Law, the Decision by the NPCSC on the qualification of the HKSAR LegCo members, and provisions of relevant local laws, which fully reflect the implementation of “patriots administering Hong Kong”.

The improvements to the electoral system should bring an end to the chaotic scenes at the LegCo. Radicals with anti-Chinese sentiment and those who attempted to collude with external forces to meddle in Hong Kong’s affairs are less likely to enter the political structure through elections. The operation of the LegCo will resume normality. People who are devoted to serving the community will be able to participate in policy discussions in a rational and objective manner and offer constructive suggestions to the Government.

Last but not least, I would like to express my sincere gratitude to colleagues who participated in the local legislation for their full support to the Constitutional and Mainland Affairs Bureau. To ensure that the three coming elections can be held as scheduled, the DoJ will continue to work closely with other government departments for the preparatory work.

May 30, 2021

This new cooperation mechanism comes with three advantages, two breakthroughs and one goal. The advantages include:

(1) Balance and protect the interests of creditors and debtors: the establishment of a system for mutual recognition of insolvency proceedings and assistance to liquidators between the two places avoids the inability to fully recover the debtors’ assets due to lack of mechanism, thereby enhancing the protection of the interests of debtors and creditors which is conducive to the orderly and fair handling of the relevant stakeholders’ interests.

(2) Make use of debt restructuring to reduce unemployment: it encourages enterprises to make use of debt restructuring procedures to facilitate creditors to reach a consensus on the restructuring plan as soon as possible. Companies under financial distress can reduce the risk of liquidation through debt restructuring and therefore prevent layoffs.

(3) Further improve business environment and encourage investment: the mechanism collectively built by the two places will give additional assurance to creditors and investors, thus further improving the investment and business environment.

The cooperation mechanism, implemented through pilot cities, connecting the procedures and rules between Hong Kong and the Mainland, marks an important move for judicial assistance between the two places and has achieved two breakthroughs:

(1) The signing of the record of meeting signifies a major breakthrough by fully reflecting the uniqueness of “one country, two systems” as Hong Kong becomes the only jurisdiction outside the Mainland where mutual recognition of and assistance to insolvency proceedings are allowed. It highlights the trust of our country in Hong Kong’s judicial system and the firm support for Hong Kong to become an international legal hub.

(2) In devising the cooperation mechanism, reference has been made to relevant international rules, including certain principles in the UNCITRAL (United Nations Commission on International Trade Law) Model Law on Cross-Border Insolvency issued in 1997. However, the mechanism is much more extensive and in-depth, and is more in line with the needs and development of the two places. The cooperation mechanism expressly covers bankruptcy compromise and reorganization in the Mainland as well as debt restructuring in Hong Kong, which allow debtors, creditors and other stakeholders to understand the scope of application of it, thereby encouraging the rescue of enterprises through reorganization or restructuring.

Through the implementation of the “one country, two systems” policy and leveraging Hong Kong’s uniqueness as the only common law jurisdiction in China, the most important aim of the cooperation mechanism is to explore the rules governing cross-border insolvency at first, and then further provide high quality cross-boundary legal and dispute resolution services with a view to contributing to the promotion of rule of law involving foreign parties and the building of rule of law in China.

On the day of signing the record of meeting, the Shenzhen Intermediate People's Court held a forum on legal and practical issues concerning cross-boundary insolvency co-operation between the Mainland and Hong Kong and introduced the co-operation mechanism, with over 500 registrations for attendance. About half of them came from Hong Kong. Meanwhile, the DoJ has issued a practical guide to briefly explain the key procedure of applying for recognition and assistance from Hong Kong courts. We are exploring the opportunity of organizing another seminar to further explain the relevant information and operational details of the cooperation mechanism between the two places to the legal sector.

In the long run, more businesses will be attracted to invest in Hong Kong, which in turn will consolidate the city's role as a platform for enterprises to tap into the Mainland market. Also, businesses may choose Hong Kong law as the applicable law for their contracts when investing in the Mainland. To give a better understanding of the advantages of using Hong Kong law, the DoJ will hold a webinar entitled "Why Use Hong Kong Law" on May 31. Representatives from legal sector will present an objective analysis and exchange views with the audience.

May 19, 2021

Further to my discussions with the Secretary-General of the International Institute for the Unification of Private Law (UNIDROIT), Professor Ignacio Tirado, during his visit to Hong Kong for the 3rd UNCITRAL Asia Pacific Judicial Summit in November 2019, a Memorandum of Understanding with UNIDROIT was signed yesterday for seconding young legal professionals (both public and private sectors) to the Secretariat of UNIDROIT in Rome, Italy. This is yet another valuable secondment opportunity that the DoJ has secured with renowned international organizations.

UNIDROIT is an independent inter-governmental institute that works on modernizing, harmonizing and co-ordinating private and in particular commercial law between States and groups of States. It also formulates uniform law instruments, principles and rules for such purposes in areas like security interests, capital markets, commercial contracts, international sales, and civil procedure. It is noteworthy that UNIDROIT has been focusing on new and challenging legal issues like digital assets and private law.

Apart from UNIDROIT, the DoJ has reached a similar standing arrangement with the Hague Conference on Private International Law (HCCH) last December in which lawyers from both the private and public sectors who are Hong Kong permanent residents could apply for a secondment.

The DoJ has also been working closely with UNCITRAL on different aspects. Arrangements have been put in place for young legal officers to take part in the Junior Professional Officers Programme of the UNCITRAL. More recently, with the support of UNCITRAL, the DoJ has set up the Inclusive Global Legal Innovation Platform on ODR (iGLIP on ODR) to explore international developments on ODR.

I am most grateful to the Central People’s Government and UNIDROIT for their support to this arrangement. Through participating in this programme, our young lawyers will gain knowledge of the operation of international organisations, broaden their horizons through learning from international law experts from various jurisdictions and participate in the development of international law.

Successful applicants will spend six to 12 months at UNIDROIT in Rome, and for secondees from the private sector, a monthly allowance of HK$50,000 will be provided via UNIDROIT. Those who are interested in the secondment programme are encouraged to visit our dedicated webpage for further details and application. The programme is open to applications for one month from May 20 to June 19. I hope the professionals will seize the opportunity to apply for secondment. The experience and exposure will be invaluable to the individual, the chambers or the law firms, and to Hong Kong as a whole.

May 13, 2021

Based on statistics provided by the Judiciary, about 18% of the nearly 70,000 divorce cases filed by parties with the Hong Kong Family Court in the period from 2017 to 2019 involved marriages that took place in the Mainland, representing a yearly average of over 4,000 cases. However, Mainland law currently does not expressly provide that judgments given by the Hong Kong courts in matrimonial or family matters may be recognized and enforced in the Mainland. Similarly, judgments given by Mainland courts in matrimonial or family matters are generally not recognized and enforced in Hong Kong, save for some exceptions. Hence, there is indeed a pressing need to implement a bilateral arrangement between Hong Kong and the Mainland to provide for the reciprocal recognition and enforcement of judgments in matrimonial and family matters. Such an arrangement is in the interest of parties to cross-boundary marriages and their families as it provides effective judicial redress to the parties, as well as reducing the need for re-litigation of the same disputes, hence saving time and cost and reducing their emotional distress.

The provisions of the Ordinance can be divided into three parts:

(1) Recognition and enforcement of Mainland judgments

A party to a Mainland judgment given in a matrimonial or family case may make a registration application to the Hong Kong District Court for a specified order (which includes: orders relating to custody and guardianship of a child; orders granting divorce and orders for the annulment of a marriage; orders relating to the maintenance of a child, spousal maintenance and division of property between parties to a marriage) in the Mainland judgment. If the court is satisfied that the relevant requirements are met, it may order the registration of the specified order. However, the other party may apply to the court for the registration to be set aside before the expiry of the specified time limit. The applicant may apply to enforce the registered specified order after expiry of the time limit for the setting aside application or after the setting aside application has been finally disposed of.

(2) Recognition of Mainland divorce certificates

A party to a Mainland divorce certificate may make an application to the Hong Kong District Court for the certificate to be recognized. The procedures are largely similar to those applicable to the registration of Mainland judgments given in a matrimonial or family case.

(3) Facilitation of recognition and enforcement in the Mainland of Hong Kong judgments

In the case of a judgment given by a Hong Kong court, a party may make an application to the relevant Hong Kong court for the issuance of a certified copy of the judgment together with a certificate, certifying that the relevant judgment is given in a matrimonial or family case and is effective in Hong Kong. This will facilitate the party in seeking to recognize and enforce the relevant judgment in the Mainland court pursuant to the Arrangement.

The Department of Justice (DoJ) consulted the Panel on Administration of Justice and Legal Services of the LegCo in 2018 and 2019 on this matter. The members expressed support for the legislative proposal. A public consultation on the proposed legislation was also conducted in 2019, during which the majority of responses received were supportive. The DoJ had engaged key stakeholders, including family law practitioners and representatives from the social welfare sector, in the course of refining the bill.

With the passage of the Ordinance, parties to cross-boundary marriages and their children will be benefitted. By providing a more expeditious and cost effective mechanism for parties to apply to the Hong Kong courts for the recognition and enforcement of judgments given by the Mainland courts in matrimonial and family cases, this will reduce the need for divorce and related proceedings to be brought in both Hong Kong and the Mainland as well as mitigate the impact of a divorce on the parties to the marriage and their children and relieve their emotional stress. Very often women are the recipients of maintenance payments in divorce cases and are often the victims in domestic violence cases. By covering maintenance orders and orders for protection in cases of domestic violence, the Ordinance can help in addressing these issues and offer better protection to women and also help reduce their emotional stress. Besides, under the new mechanism of the Ordinance, in case a child in Hong Kong has been wrongfully removed to or wrongfully retained in the Mainland by a parent, the other parent can, on the basis of a relevant order made by the Hong Kong courts, seek assistance from the Mainland courts for the return or delivery of the child. This addresses the needs of Hong Kong society.

After the relevant court rules have been issued, DoJ will discuss with the Supreme People’s Court for the coming into operation of the Arrangement which will take place on the same date as the Ordinance. As regards the recognition and enforcement in the Mainland of Hong Kong judgments in matrimonial and family cases, the Supreme People’s Court will promulgate judicial interpretations to implement the Arrangement.

The successful implementation of the Arrangement once again demonstrates that Hong Kong and Mainland strive to foster mutual legal assistance in civil and commercial matters in accordance with the “one country, two systems” principle on the basis of mutual understanding and respect, so as to complement the needs that arise from social developments in both societies. The DoJ will continue to actively take forward work in this aspect. It is hoped that more good news will come in the near future.

May 6, 2021

There have been occasions where Government premises were unlawfully occupied by protestors that disrupted Government’s operation, it was not all that long ago when this happened during the protests in June and July 2019. There have also been times when peaceful events developed rapidly into violent ones and people resorted to unlawful means in carrying out their activities. To ensure the safety and security of those visiting or working in Government premises concerned, and the normal functioning of the offices, it is necessary from time to time for the Government to implement controls on the public meetings and processions that may be allowed to be held on its premises.

One example of such controls is the permission scheme that requires applications to be made for use of the East Wing Forecourt of the Central Government Office (Forecourt) for holding public order events. The legal challenge against the constitutionality of the permission scheme has come to an end with the Court of Appeal in its recent judgment upholding the constitutionality of the permission scheme and its ruling that it did not infringe the fundamental rights to freedom of expression and assembly (Cheung Tak Wing v Director of Administration [2020] HKCA 124).

In the decision, the Court of Appeal has enunciated important legal principles that sets out the proper limits of the exercise of such freedoms:

(1) The Government has proprietary rights in respect of its properties: The Government as the owner of its premises has the right to manage its premises and to implement measures to ensure that premises can be used for its proper purpose and function. The Government has a duty to take precautions so as not to compromise the premises’ proper function. The court also remarked that it was a misnomer to call the Forecourt the Civic Square, and it was wrong to perpetuate the mistaken characterisation of the primary function of the Forecourt by attributing symbolic significance to it as a public place for protest or demonstration.

(2) The Government owes a duty of care as to the safety and well-being of those working at Government premises: The Government has a duty to ensure that the activities on its premises would not compromise its normal and effective operations, as well as the safety of those visiting and working there.

(3) The Government needs to strike a balance between the need for public order and public safety and the orderly operation of the offices, and the need to facilitate public expression of opinion: The balance should be made by reference to the particular facts and circumstances of the case in question.

(4) The relevant factors when striking the balance include -

(a) The nature of the public meetings and processions, and the degree disruptions to the ordinary and peaceful use of the premises.

(b) The availability of alternative and equally effective means, manners and forms of exercise of freedom of expressions and demonstrations. This is relevant as there is no freedom of forum for exercising the said right.

The Court of Appeal has now affirmed that while the Government has a duty to facilitate public expression of opinions at or near its premises, it must also ensure this does not compromise the normal and effective operation and public safety including the safety of the other users of the premises.

The Government always respects and attaches great importance to the rights and freedoms (including the freedoms of assembly, of procession and of demonstration) protected under the Basic Law. However, it should be noted that the Court of Final Appeal in its judgment of Kwok Wing Hang & Others v Chief Executive in Council & Anor [2020] HKCFA 42 and Leung Kwok Hung v Secretary for Justice & Anor [2020] HKCFA 42 pointed out that: “None of these rights is absolute but may be subject to lawful restrictions. As will be apparent from its wording, the freedom of assembly, procession and demonstration under Article 17 of the [Bill of Rights] is not absolute but is subject to lawful restrictions including the interests of public safety, public order and the protection of the rights and freedoms of others.” Members of the public, in exercising their rights and freedoms, should take heed of the important legal principles.

April 26, 2021

The opportunities in the Greater Bay Area development, highlights the importance of intellectual property (IP) rights protection and efficient resolution of IP disputes. As pointed out by one of the speakers, IP rights are generally territorial and in some countries IP rights are not arbitrable owing to public policy considerations. In advising her client to choose Hong Kong as a seat of arbitration, the speaker pointed out that the arbitrability of IP rights in Hong Kong as set out in the Arbitration Ordinance is an attraction. Parties prefer to arbitrate rather than litigate in open courts disputes involving IP, so as to benefit from the confidentiality afforded to the technology and know-how from being exposed to the public.

China, being the second largest economy in the world, provides ample business opportunities. The availability and enforceability of interim measures play an important role in the choice of seat of arbitration. Hong Kong, with its unique advantages under the “One Country, Two Systems”, reached the interim measures arrangement with the Mainland, which allows parties to arbitral proceedings that are seated in Hong Kong and administered by one of the six arbitral institutions to apply to the Mainland courts for such measures. Hong Kong is the only jurisdiction outside the Mainland where this is possible.

Third party funding is often used in investment and commercial disputes. The speakers pointed out that in Hong Kong, third party funding is not only useful to fund impecunious companies to pursue their claims but also generally welcomed by other enterprises. The regulatory framework in the Code of Practice for Third Party Funding of Arbitration sets out the practices and standards with which third party funders are to comply and serves to encourage its use but also provide necessary protection to parties that receive funding. In that way, third party funding serves not just as a tool for access to justice but also for business opportunities when it is engaged to ease the cash flow problems of going concern, especially in this difficult times of the economy due to the pandemic.

In the last session of the webinar in investment arbitration, the speakers pointed out that there are abundance of talents experienced in the construction field. It is particularly relevant to the Belt and Road Initiative as most of the projects are construction-related. Being a gateway for investment to and from China, Hong Kong and the Mainland signed the CEPA Investment Agreement which provides for promotion and protection of investments between the two jurisdictions. It is noteworthy that investment mediation is the only available mechanism for resolving investment disputes under the CEPA Investment Agreement. Hong Kong has been active in promoting the use of mediation to resolve investment disputes and providing training in this area with a view to building up a team of investment mediators specialised in handling international investment disputes in Asia. In April, there will be the “Why invest in Hong Kong: Current Opportunities” and investment opportunities will be discussed.

One of the new initiatives in Hong Kong is to look at how to provide a level playing field compared with other popular arbitral seats which allow some form of contingency fee structures. The Law Reform Commission has undertaken a consultation to examine the recommendation by its sub-committee of permitting lawyers to use outcome related fee structures for arbitration taking place in and outside Hong Kong.

Finally, I noted that the speakers shared their experience in a common theme: neutrality - the neutrality in arbitral tribunals, supervising courts and the legislative framework. If I may echo the words of one of the speakers, the Arbitration Ordinance provides an “important gate-keeping function in terms of neutrality”. It is kept up to date and amended to implement developments quickly. Last month an amendment was made to reflect and implement the Supplemental Arrangement reached between Hong Kong and Mainland in November last year and that will reinforce our strength as an arbitration friendly jurisdiction.

The 14th Five-Year Plan continues to support Hong Kong to enhance its status as an international financial centre and establish itself as a centre for international legal and dispute resolution services in the Asia-Pacific region. There is also clear policy support for Hong Kong to develop into an international innovation and technology hub and a regional intellectual property trading centre, etc. In order to avail ourselves of this opportunity, Hong Kong will continue to capitalise on its uniqueness of being the only common law jurisdiction in China by actively promoting the use of Hong Kong law as the governing law of contractual disputes. The importance of Hong Kong law in deal-making is widely recognised and we will further explore the advantages of it in the upcoming webinar “Why Use Hong Kong Law” to be held in May.

It is promising to see that the Hong Kong International Arbitration Centre and the Law Society of Hong Kong have also organised a series of webinars to promote Hong Kong. With collaboration and synergy, the bodies in Hong Kong will work together to further promote the interests of Hong Kong in the legal and dispute resolution sector.

The shift of global economy is without a doubt moving to Asia. It is inevitable that more transactions generate more disputes. Ideally, disputes should be dealt with in the region where the transactions took place, for costs and efficiency but also for the understanding of the culture within the region. It is encouraging to see that other parts in Asia have been developing in the provision of arbitral service. Through fair, open and clean competition, and collaboration, all those involved in the provision of services will be able to bring about benefits for the users of arbitration. I believe that Hong Kong’s continued improvements as a hub for international legal, deal-making and dispute resolution services in the Asia-Pacific region will create positive synergies and generate more deals.

April 11, 2021

In the second half of 2019, various police quarters had been surrounded by large crowds targeting police officers and their families. Serious harassment had been escalated to violent acts against the residents, endangering their personal safety and even resulting in mental distress. Facilities of the quarters were also severely damaged.

As “guardian of public interest”, the Secretary for Justice obtained an injunction in October 2019 to restrain the conduct of such activities. In granting the order, the court acknowledged that “there is a high risk that, unless restrained, the defendants will cause substantial harm and damage to the occupants of the quarters and to the quarters”.

At the same time, the Airport Authority was granted an injunction order restraining persons from unlawfully and wilfully obstructing the proper use of the airport in light of the severe disruptions and chaos.

Amidst the social unrest and street violence, a sizeable number of netizens weaponized personal data and engaged themselves in doxxing activities against police officers and those with political views contrary to their own. Certain police officers and their family members even received letters threatening to hurt them brutally. In order to curb such despicable acts, the Secretary for Justice and the Commissioner of Police sought and obtained an injunction in October 2019 restraining persons from unlawfully and wilfully conducting themselves in those acts. It is noteworthy that the court expressed that “the promotion and maintenance of the rule of law is not sensibly or rationally pursued by repeated and escalating breaches of the law”, and “[p]ersons who commit such crimes are simply, and properly described as, ‘criminals’. Criminal activity does not cease to be criminal activity simply because the actor believes himself or herself to be acting for a particular, perhaps higher, cause”.

Doxxing activities towards counsel, judges, legislators and other persons involved in the administration of justice were found to be on the rise in 2020, especially when cases relating to the 2019 incidents were heard. Such unlawful acts must be curtailed. As pointed out by the court in its decision in a case of contempt of court, doxxing itself is capable of constituting criminal activity. In the injunction issued in October last year restraining the conduct of such activities towards Judges, Judicial Officers and their family members, the court held that “[i]t remains fundamental to the rule of law that litigants and the general public are able to place reliance on and have confidence in a Court system that is free from bias, and that the Judge or Judicial Officer in any case is the person who decides that case according to its evidence and the applicable law.”

Notwithstanding the injunctions, some people still blatantly violated these orders. Such conduct gave rise to serious challenge to the administration of justice and the rule of law. As a result, the Department of Justice has lodged committal applications for contempt of court. Contemnors, who admitted liability for contempt of court, were sentenced, including immediate imprisonment, and below are some significant messages set out in the judgments:

(1) It is fundamental to the rule of law that court orders are made to be obeyed. Contempt of court orders is a serious matter. Thus, the starting penalty for both civil and criminal contempt of court in breaching an injunction order is imprisonment, perhaps measured in months.

(2) Criminal contempt threatens the due administration of justice as a whole and presents a direct challenge to the rule of law. The immense public interest involved in protecting the due administration of justice as an integral component of the rule of law ordinarily calls for a deterrent sentence on the contemnor.

(3) Punishment and deterrence are the major sentencing considerations for cases of criminal contempt. The sentence to be imposed should contain an element of general and personal deterrence.

(4) Rights and freedoms do not exist in a vacuum and they come with responsibilities. Any person exercising their own rights and freedom must simultaneously have respect for the rights and freedom of others. Freedom of speech certainly does not embrace any right to harass or intimidate, threaten or menace. Irrespective of a person’s political stance, there are proper channels to express one’s views in a legitimate and proper manner.

Whilst these injunctions relate to specific categories of persons, a common thread from these judgments is that doxxing activities are not to be condoned. The Government will legislate to prevent doxxing so that the general public will also be protected in their own rights. Not only would these doxxing activities violate privacy rights, when conducted with a view to deter or levy a direct or indirect threat against a person from discharging his/ her duties or exercising his/ her rights, these must be stopped. It falls upon each of us to join hands and condemn these actions so that the law and order that has been restored after the passing of the National Security Law is maintained, so that people are free to exercise their rights whilst respecting that of others. All of us should jointly bear the responsibility to respect, promote and further the rule of law as a fundamental basis of our society.

March 28, 2021

Sentencing is an essential part of the administration of criminal justice, which is exercised by the court’s independent judicial power. In the event that a defendant is convicted upon his or her own plea or is found guilty after trial, it is the court’s duty to impose an appropriate sentence, after taking into account the relevant sentencing principles, the circumstances of the offence and the background of the offender etc. In accordance with established principles, a prosecutor shall, if appropriate and necessary, provide information to the sentencing court including previous relevant appellate court decisions. However, according to case law, a prosecutor should not attempt by advocacy to influence the court in relation to the quantum of sentence (AG v Jim Chong-shing (1990)1 HKLR 131). This point may be discussed further as it has attracted some different views including from the sentencing court.

After a judge or magistrate has imposed a sentence, the DoJ will carefully consider all materials of the case including the report of the prosecutor, the relevant sentencing principles and the reasons for sentence etc. If the sentence “is not authorised by law, is wrong in principle, or is manifestly excessive or manifestly inadequate”, the DoJ may take the case further. For example, the Secretary for Justice may, with leave of the Court of Appeal, apply to the Court of Appeal, under section 81A of the Criminal Procedure Ordinance (Cap. 221), for review of the sentence.

The DoJ made 6 and 4 such applications in 2018 and 2019 respectively, compared with 17 in 2020, most of which related to the radical protests and street violence stemmed from the so-called “anti-extradition amendment bill” incident. It is noteworthy that the Court of Appeal has heard and decided a total of 15 applications (public order events) since 2020. All these applications were allowed by the Court of Appeal setting out detailed reasons and principles for its decisions in the judgments.

For example, the first application was a case of desecration of the National Flag. Having carefully considered all the materials, it was concluded that the sentence by the trial magistrate was wrong in principle and manifestly inadequate. The Court of Appeal allowed the application and set out the following factors that ought to be taken into account when sentencing:

(1) Actual acts to the National Flag: the desecration caused, brought about or inflicted.

(2) Circumstances surrounding the desecration of the National Flag: if the acts have provoked others at the scene to commit other offences, this will aggravate the seriousness of the offence.

(3) Premeditated or planned: if so, culpability is higher.

(4) Joint enterprise with others: if so, culpability is higher. Even if others were only agitated to join in the course of the crime committed, joint enterprise still applies.

(5) Persistent desecration of the National Flag: it is an aggravating factor.

(6) The source of the National Flag: if the National Flag was obtained unlawfully, this will aggravate the seriousness of the offence.

Other applications were mostly cases in relation to unlawful assemblies and violent acts. Some of the more important principles as highlighted in the judgments are outlined here so as to give the general public a better understanding.

The Court of Appeal in various cases reiterated the sentencing principles as set out in the Wong Chi Fung case, which may be briefly summarised into four areas:

(1) The importance of the need for punishment and deterrence: the Court of Final Appeal reaffirmed the Court of Appeal that “when a large number of demonstrators are gathered, emotions are likely to run high, or the crowd may even become agitated, so that these situations have the inherent risk of breaking out into violence” and “[o]n the basic premise that public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court, in passing sentence, not only has to impose a penalty that is appropriate to the punishment of the offenders, but it also has to take into account the factor of deterrence. That is to say, a sentence must not only seek to prevent the offenders from reoffending, but also to give a warning to deter others from violating the law by breaking and disrupting public order in like manner”. The Court of Final Appeal also held that unlawful assemblies involving violence, even at a relatively low degree, will not be condoned and may justifiably attract sentences of immediate imprisonment in the future.

(2) The principle in (1) also applies to non-violent unlawful assemblies: to rigidly distinguish a violent or non-violent unlawful assembly in imposing punishment is impractical and in violation of the sentencing principles.

(3) Emboldenment effect: if an offence is committed in public enticing others to join or have an emboldenment effect, an uproar was caused in the crowd and other offences were committed as a result, these are aggravating factors to be taken into account when sentencing.

(4) Young offenders: the Court of Appeal in the case of Secretary for Justice v SWS stressed that “[i]f, as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance… because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender”.

Sentencing principles inform how sentencing is to be imposed. This is particularly important in the common law system where judgments of the higher courts bind the lower courts and where the power and duty to sentence is vested in the independent judiciary in exercise of the judicial discretion in accordance with law. In some cases, the Court of Appeal sees the need to reiterate that principles must be actually followed instead of just quoting the Wong Chi Fung case and not applying it. The judgments pointed out that “[t]he court shall act on the premise of maintaining public order”, and “[t]he Court of Appeal in Chung Ka Ho case once again extracted the legal principles in the Wong Chi Fung case to remind all parties concerned of the need to consider the gravamen seriously instead of just paying lip service to it.”

Every now and then, one sees in media reports that young defendants pleaded guilty and hence convicted before the trial court. A guilty plea will reduce the sentence to be imposed but the convicted person will still have a criminal record that may affect their future, for instance when looking for jobs. Had they admitted the offence and expressed remorsefulness upon their arrest, in appropriate circumstances, the police could have considered exercising Police Superintendent’s Discretion without bringing the cases to court. Needless to say, a number of factors have to be taken into consideration by the police which include: whether the juvenile offender was under the age of 18 at the time of committing the offence; the seriousness and nature of the offence; whether the offender voluntarily and unequivocally admits the offence; whether the offender is remorseful etc. Legal representatives have a legal duty to protect the rights of these young offenders and to advise them of the merits of their cases but also the consequences of a conviction in court, namely the criminal record and the sentence. In any event, the Police Superintendent’s Discretion scheme has been explained many times by the Government and the public should be better informed of these matters now. In addition to taking legal advice, one should carefully consider all other relevant information in order to make an appropriate decision.

Prosecutors of the DoJ take on the responsibility to ensure that justice is dispensed with equal measure and in an even handed manner at all times. Our prosecutors will continue to discharge duties with professionalism.

March 23, 2021

Hong Kong, on the premise of “One Country, Two Systems” and under the principle of pursuing mutual benefit and win-win cooperation, has a unique role to play under the 14th Five-Year Plan. We should make best use of our strength to meet the needs of the country and couple the support of the country with our own efforts in order to consolidate and foster the development of Hong Kong itself, as well as that of the Greater Bay Area (GBA) and our country.

The Outline reiterates the need to maintain Hong Kong’s long term prosperity and stability, which requires the resolute, full and faithful implementation of the policy of “One Country, Two Systems” under which the people of Hong Kong administer Hong Kong with a high degree of autonomy in strict accordance with the laws of Hong Kong as well as to safeguard the constitutional order of Hong Kong formed under the Constitution and the Basic Law. On the other hand, the Outline reflects the importance of raising Hong Kong’s competitiveness and CPG’s staunch support towards the same.

In the area of legal and dispute resolution services, I am delighted to learn that the Outline supports Hong Kong to establish itself as the centre for international legal and dispute resolution services in the Asia-Pacific region, and transform Hong Kong’s service sector into a high value-added industry. The Department of Justice (DoJ) is working closely with relevant Mainland ministries and departments with a view to implementing more liberalisation and new measures. The GBA Legal Professional Examination and the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region are the two recent breakthroughs facilitating the sustainable development of Hong Kong’s legal and dispute resolution services in the GBA (please see my blog on January 3 for information on these two measures: https://www.doj.gov.hk/en/community_engagement/sj_blog/20210103_blog1.html).

Besides, the Guangdong-Hong Kong-Macao Bay Area Legal Departments Joint Conference endorsed the proposal to set up a GBA Mediation Platform on 11 December 2020, which will facilitate the use of mediation and discharge the role of a standard-setting body with a view to promoting the wider use of mediation within the GBA.

All these measures have played a significant role in strengthening the promotion of Hong Kong’s legal and dispute resolution service in the GBA, and further foster the integration and professional exchanges between the two places.

Looking ahead, we will continue to consolidate our efforts in deepening mutual collaboration with the Mainland in terms of legal and dispute resolution services. Hong Kong enterprises registered in Qianhai were recently allowed to choose Hong Kong law as the applicable law in their civil and commercial contracts. We are now actively seeking the support of the CPG in extending the measure to the entire GBA. In addition, the proposal on the establishment of a mechanism on corporate insolvency is in in the pipeline. We are striving for a consensus with the Supreme People’s Court on to explore the first launch of this mechanism in the city with the closest economic relationship with Hong Kong in the GBA (such as Shenzhen) as a pilot area. Such arrangement will help enhance Hong Kong’s position as a regional hub for insolvency and debt restructuring and further enrich the content of mutual legal assistance in civil and commercial matters.

In order to nurture more legal talents who are familiar with the legal systems of both places, the DoJ encourages the legal sector to make best of the GBA Youth Employment Scheme introduced by the HKSAR Government to support young local practitioners who aspire to work in the Mainland cities. Moreover, financial incentives have also been provided to eligible young legal professionals who are working and living in Qianhai by the Administration Bureau of Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone. We believe all these measures will encourage more legal talents to grasp the opportunities to pursue their career in the GBA cities.

In addition to commercial matters, it is expected that the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill will be passed in the current legislative session. By then, parties to a judgment given in a matrimonial or family case no longer need to litigate separately for the same dispute in a Mainland court and a Hong Kong court, thereby saving time and cost and reducing emotional distress. More importantly, parties concerned can expeditiously receive effective judicial redress.

Since the enactment of the Law on Safeguarding National Security in the Hong Kong Special Administrative Region, order and stability in our community had been restored. Hong Kong is now ready to capitalise on its unique position under the “One Country, Two Systems”, thereby leveraging Hong Kong's advantages in order to meet the nation’s needs and to create greater synergy. I will continue to work with my fellow colleagues of the Department of Justice to utilise Hong Kong’s advantages in legal and dispute resolution services in order to strengthen Hong Kong’s enviable status as an international legal hub, as well as to make the best use of the opportunity brought forth by the 14th Five-Year Plan for National Economic and Social Development, thereby contributing to the prosperity of our country.

March 14, 2021

Indeed, this is not the first time that there were speculations over Hong Kong’s status as a leading international legal hub. Back in 2019 when Hong Kong suffered from street violence, spreading anti-Chinese sentiments, some reports suggested that enterprises had concerns over the use of Hong Kong as a legal and dispute resolution hub. To come forth to understand the situation and embrace any challenge, a seminar entitled “Is Hong Kong Still Irreplaceable?” was organised by the Department of Justice (DoJ) in Beijing in November 2019 to facilitate communications between Hong Kong’s legal professionals and Mainland enterprises. Following frank exchanges, all the participants eventually reached a consensus that “Hong Kong is still irreplaceable”.

At the AAIL’s webinar this year, speakers from international law firms and corporations led dialogues exploring the importance of Hong Kong’s role as a centre for deal-making and dispute resolution. The discussions revealed that Hong Kong’s success as an international legal hub is built on strong foundations, including a stable business environment, the free flow of capital, a low and simple tax system, and most importantly, a reliable legal system.

I was delighted to have shared my thoughts with the audience across the globe at the webinar, reassuring them Hong Kong will continue to provide a business-friendly legal framework for the international business community. Our legal infrastructure consists of a well-tested common law system, an open, transparent and independent judiciary, and also a pool of legal talents. Hong Kong law is well-known for its predictability and certainty and has been chosen as the applicable law in many international commercial transactions.

Hong Kong enjoys a number of exclusive advantages with its unique position under the “One Country, Two Systems”. The interim measures arrangement, signed between Hong Kong and the Mainland in 2019, is one of the many examples. This game-changing arrangement allows parties to arbitral proceedings, which are seated in Hong Kong and administered by one of the six arbitral institutions, to seek assistance from the relevant court in the Mainland to obtain interim measures. Hong Kong International Arbitration Centre, for instance, has received applications to preserve assets totalling US$1.9 billion and Mainland courts have granted orders totalling US$1.5 billion. Hong Kong is the only jurisdiction outside the Mainland that can provide this service.

Another feature unique to Hong Kong is the opportunities under the Belt and Road Initiative and in the Greater Bay Area (GBA). Take the GBA as an example. Hong Kong enterprises registered in Qianhai Shenzhen can now choose Hong Kong law as the applicable law for their contracts. Also, Hong Kong lawyers can take a special examination and be qualified as a Mainland legal practitioner in the GBA. This means businesses will be able to secure a lawyer in Hong Kong that is qualified to advise on both Hong Kong and Mainland laws in commercial and investment transactions within the GBA. Only Hong Kong lawyers can benefit from this special arrangement.

Hong Kong has earned a global reputation for our exceptional legal and dispute resolution services over the years. Despite all the challenges ahead, experience sharing by the international practitioners in the webinar has provided facts and data for one to appreciate that Hong Kong will continue to thrive in financial and commercial activities, and, as talents always follow the money, a comprehensive range of world-class services would be available. Hong Kong will be an ideal place for people and businesses to connect and excel. In summary, Hong Kong is irreplaceable because of its financial and legal infrastructure, the business opportunities and the pool of talents.

March 10, 2021

Governance power should be in the hands of patriots anywhere in the world. Patriot administration is therefore a basic requirement. When formulating the concept of "one country, two systems", Mr Deng Xiaoping had stated that patriots must be the mainstay of the idea of “Hong Kong people administering Hong Kong”. Therefore, the criterion of "patriots administering Hong Kong" has already been included in the "one country, two systems" principle. To better implement "patriots administering Hong Kong", it is crucial to improve the electoral system of the HKSAR. As such, the constitutional order as set out in the Constitution and the Basic Law could be effectively safeguarded, thus ensuring the prosperity and stability of Hong Kong.

In the past few years, some people have been promoting through different channels the idea that there is no need to abide by the laws, or spreading the anti-China sentiments seeking to disrupt Hong Kong. In 2019, our society has been disturbed by violent acts with some people even advocating openly for “Hong Kong independence”, while some radical separatist forces entered the HKSAR's governance framework through different elections. It is revealed that the existing electoral system in the HKSAR has clear loopholes. Necessary measures must be taken to ensure "one country, two systems" is fully and accurately implemented on the right track.

China is a unitary state. According to the constitutional structure of China, power comes from the Central Authorities. The HKSAR enjoys a high degree of autonomy. However, some matters including national security and constitutional order in relation to the HKSAR are still within the purview of the Central Authorities. As the highest organ of state power in the People’s Republic of China, the NPC has the power to introduce laws and other legal instruments including making Decisions under the Constitution. After thorough and careful study, the Central Authorities proposed an approach combining “decision plus amendment” to improve HKSAR’s electoral system.

The first step is "decision". The NPC, in accordance with the relevant provisions of the Constitution, the Basic Law, and the Law on Safeguarding National Security in the HKSAR (Hong Kong National Security Law), makes a decision on improving the electoral system of the HKSAR, and authorises its Standing Committee (NPCSC) to amend Annex I and Annex II of the Basic Law in accordance with the Decision. It provides a solid legal basis as the NPC has the power and duty to ensure the full implementation of the "one country, two systems".

The second step is "amendment”. The NPCSC, under its mandate, will amend Annex I and Annex II of the Basic Law in accordance with the law, setting out specific and clear provisions for the new electoral system to be implemented in the HKSAR. The HKSAR will then amend relevant local laws accordingly.

The Central Authorities should take the lead to improve the electoral system of HKSAR in accordance with the Constitution, the Basic Law, the Hong Kong National Security Law and other relevant legal instruments. It followed the constitutional order of China and is applicable to the HKSAR. It is also in line with “one country” and respects “two systems”.

I will lead the colleagues of the Department of Justice to assist relevant policy bureaux in completing the legislative amendments with dedicated efforts, with a view to implementing the decision to improve the HKSAR electoral system at the earliest possible.

March 6, 2021

In the course of legal proceedings, prosecutors of the DoJ have the duty to provide accurate and comprehensive submissions on the law to assist courts in the determination of cases. On sentences imposed by courts, the DoJ will consider all materials including the prosecution reports and the reasons for sentence before taking the cases forward in accordance with relevant legislations where appropriate. In general, the DoJ may make the following decisions:

(1) Apply to the magistrate under section 104 of the Magistrates Ordinance (Cap. 227) to review the sentences he/ she imposed; and

(2) Apply to the Court of Appeal, under section 81A of the Criminal Procedure Ordinance (Cap. 221) to review the sentences, on the grounds that the sentence is not authorised by law, is wrong in principle or is manifestly excessive or manifestly inadequate.

When the court’s decision of acquittal in the case is perverse (meaning no reasonable court, applying its mind to the proper considerations and giving itself the proper directions, could have reached this decision) or erroneous in point of law, the DoJ may take follow-up action under appropriate circumstances, including:

(1) Appeal by way of case stated to the Court of Appeal under section 84 of the District Court Ordinance (Cap. 336) for cases tried in the District Court; and

(2) Appeal by way of case stated to the Court of First Instance under section 105 of the Magistrates Ordinance (Cap. 227) for cases tried in the magistrate’s court.

The DoJ lodged 17 applications for the review of sentence under section 81A of the Criminal Procedure Ordinance in 2020. Of the 12 such applications decided last year, 11 were allowed. On cases related to public order events, the Court of Appeal in four of the cases repeated the sentencing principle as set out in Wong Chi Fung case of the necessity to emphasise deterrence and punishment in large-scale unlawful assembly cases involving violence be applied. In three judgments delivered by the Court of Appeal, it was stressed that “[b]ecause the respondents had committed a serious offence, appropriate weight must be given to the sentencing factors of punishment, deterrence and condemnation despite their youth”. The judgments also pointed out that “[i]f, as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance, because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender”.

Some media, without regard to the grounds put forward by the DoJ at the hearings and the reasons for the decisions set out in the courts' judgments, used biased expressions that fail to reflect the facts in an objective manner. I don’t agree to this approach and have to stress that the DoJ has all along strived to ensure the proper conduct of its prosecutions. Prosecutors have always adhered to the highest of professional standards in handling criminal cases for justice to be administered with equal measure and in an even-handed manner at all times.

February 6, 2021

The Greater Bay Area (GBA) has the unique strength of “One Country, Two Systems and Three Jurisdictions” and the Outline Development Plan for the Guangdong-Hong Kong-Macao GBA recognises the distinctive advantage of Hong Kong’s legal system under “One Country, Two Systems” and our ability to assume a vital role in the development of the GBA. We have already succeeded in securing the Guangdong Province as the first to implement further liberalisation measures for partnership associations for law firms in August 2019. Since June 2020, such measures have been extended to the whole of the Mainland. Enterprises and investors are now able to appoint law firms and legal practitioners who are practising in the Mainland and also familiar with common law. The “Regulations of the Qianhai Shenzhen–Hong Kong Modern Service Industry Cooperation Zone of the Shenzhen Special Economic Zone” were amended and approved in August 2020. It allows Hong Kong enterprises registered in Qianhai to choose Hong Kong law as the applicable law in their civil and commercial contracts. This early and pilot implementation measure is a major breakthrough and benefits over 11 000 wholly-owned Hong Kong enterprises registered in Qianhai. We are now actively seeking the support of the Central Government in extending the measure to the entire GBA.

Hong Kong has been a prime venue for international legal and dispute resolution services. The fundamentals that make Hong Kong excel as a leading arbitration centre can be attributed to our solid foundation with a modern and user-friendly arbitration law. The Arbitration Ordinance, which came into effect in June 2011, is based on the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law to unify the dual regimes for domestic and international arbitrations. Amendments to the Ordinance have been made over the years in order to keep abreast of the latest developments in international arbitration. Our arbitral service is well known for its flexibility, and the enforceability of awards in over 160 jurisdictions. It is noteworthy that nearly all the awards have been successfully enforced in the Mainland. Also, a number of well-respected international institutions have chosen Hong Kong as their first global location outside their home jurisdictions. As a result of the unique position of Hong Kong under the “One Country, Two Systems”, we are able to secure ground-breaking and game-changing arrangements with the Mainland such as the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR in 2019.

Our strong judicial and legal systems have enhanced Hong Kong’s strength as an international legal hub. Judicial independence is premised on the solid infrastructure that has been laid down primarily in the Basic Law - the security of tenure, the immunity of judges, the non-revolving door, and importantly the expressed provision in Article 85 of the Basic Law that guarantees judicial independence, free from any interference. The judicial oath, taken by all judges, requires them to safeguard the law and administer justice, without fear or favour. Judges are required to adjudicate cases based only on evidence and law, setting out how they have arrived at such decisions in opening hearings and their judgements, which are available to the general public. As pointed out by the incumbent Chief Justice of the Court of Final Appeal, “attempts to exert undue pressure on our judges by means such as threats of violence or doxxing are as futile as they are reprehensible.” Furthermore, the former Chief Justice had repeatedly said, in particular in his interview with the media on January 5, that he categorically denied there was pressure exerted on the Judiciary.

In the long run, the intrinsic strengths of Hong Kong, together with the advantages afforded to Hong Kong’s position under the “One Country, Two Systems”, initiatives and opportunities of the GBA development will reinforce Hong Kong’s irreplaceable position as a leading international legal hub for deal-making and dispute resolution services. We hope that we will join hands through concerted efforts in promotion and explanation to clarify misconceptions and misunderstanding.

February 1, 2021

On July 12, 1983, the Central People’s Government (CPG) proposed 12 Principles to resolve the issue of Hong Kong, which later became part of the Joint Declaration. On December 19, 1984, the Joint Declaration which reflected the basic principles and policy of “One Country, Two Systems” was concluded.

The Joint Declaration is a treaty made between China and the UK. The provisions of the Joint Declaration, including its three annexes, have been deposited with the United Nations. While the latter part of the preamble of the Joint Declaration states that the two sides “agreed to declare as follows”, the crucial parts of Articles 1, 2 and 3 (read with Annex I) are all unilateral declarations made by one side without any reference to the other side. Articles 4, 5 and 6 and Annexes 2 and 3 provide for arrangements during the transitional period, while Articles 7 and 8 are about the implementation and entry into force of the instrument.

From the above observations on the content and nature of the Joint Declaration, it can be seen that there is no clause that provides for British rights or obligations to Hong Kong after the city's reunification with the Motherland. Judge Xue Hanqin, Vice President of the International Court of Justice, pointed out at the Basic Law 30th Anniversary Legal Summit on November 17, 2020 that, “after the reunification, the system to be adopted in the Hong Kong Special Administrative Region (HKSAR), as well as how to implement its reunification with the Motherland, was purely within the ambit of the sovereignty of China from an international law perspective.” In a speech by Mr Xie Feng, former Commissioner of the Ministry of Foreign Affairs of China in HKSAR, he also stated, “[a]ll legal relations between the UK and Hong Kong created by the instrument had terminated by January 1, 2000 at the latest, when the Sino-British Joint Liaison Group ceased operation. The UK is not entitled to claim any new rights over or obligations to Hong Kong by citing the Joint Declaration. To be brief, the UK has no sovereignty, jurisdiction or right of ‘supervision’ over Hong Kong whatsoever after the latter returned to China.”

The signing of the Joint Declaration marks the final resolution of the Hong Kong question, setting a laudable example on peaceful resolution of historical issues and marking a significant milestone for the reunification of China. As remarked by Judge Shi Jiuyong, former President of the International Court of Justice, the Joint Declaration “is an unprecedented treatment of invalidity of unequal treaties imposed by big powers in history. This practice can be counted as China’s contribution in the process of progressive development of contemporary international law.”

At the signing of the Joint Declaration, there was also an immediate exchange of memoranda between the two sides dealing with the issue of nationality. This exchange of memoranda between the two sides represent each side’s understanding of the issue of nationality under the backdrop of the Joint Declaration.

The British Memorandum to the PRC (the British Memorandum) opened with the statement “[i]n connection with the Joint Declaration... to be signed this day, the Government of the [UK] declares that...”, and stated the UK government’s pledge, inter alia, not to confer the right of abode in the UK on holders of the BN(O) passport who are Chinese nationals in Hong Kong. Similarly, the Chinese Memorandum to the UK opens with acknowledging receipt of the British Memorandum, stating “[t]he Government of the [PRC] has received the memorandum from the Government of the [UK]…”, going on to assert that, inter alia, “[u]nder the Nationality Law of the [PRC], all Hong Kong Chinese compatriots… are Chinese nationals”, and then makes the commitment to “permit Chinese nationals in Hong Kong who were previously called ‘British Dependent Territories Citizens’ to use travel documents issued by the government of the UK for the purpose of travelling to other states and regions”.

A pertinent question would be the nature and legal effect of the memoranda in question, in particular the UK government’s pledge as contained in the British Memorandum regarding the conferral of the right of abode to BN(O) passport holders who are Chinese nationals in Hong Kong. This would depend on whether it could give rise to a binding effect as a unilateral act under international law.

According to the International Law Commission’s “Guiding principles applicable to unilateral declarations of States capable of creating legal obligations” (Guiding Principles), declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations, taking into account their content, the factual circumstances in which they were made, and of the reactions to which they gave rise. In the Nuclear Tests case, the International Court of Justice also held that a unilateral declaration is binding when the State proclaiming it intends to undertake a legal obligation.

It is noteworthy that the UK also considered the provisions contained in the British Memorandum to be of binding effect. For example, in 1985, at the second reading of the Hong Kong Bill in the UK House of Commons, the then Secretary of State for Foreign and Commonwealth Affairs, Sir Geoffrey Howe, remarked that the proposed powers to make the amendments to the then nationality legislation are “necessary as a result of the [Joint Declaration] and the [British Memorandum]”. Additionally, in his 2008 Review of Citizenship, former Attorney General for England and Wales, Lord Goldsmith, recognised that to give BN(O)s full British citizenship automatically would be a breach of the commitments made between the PRC and the UK in the Joint Declaration, noting: “The only option… would be to offer existing BN(O) holders the right to gain full British citizenship… However I am advised that this would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong…”.

In line with China’s countermeasures against the British government's handling of issues related to BN(O) passport, the HKSAR Government has announced the non-recognition of the BN(O) passport as a valid travel document and proof of identity. With effect from tomorrow, BN(O) passports cannot be used for immigration clearance and will not be recognised as any form of proof of identity in Hong Kong.

January 30, 2021

Further to a visit I made to The Hague, the Netherlands in April 2019, and by reference to a precedent where the current Commissioner of IDAR Office was seconded in 2001, a standing agreement was reached for local lawyers to be seconded to the Hague Conference on Private International Law (HCCH). On December 22 last year, I signed a Memorandum of Understanding with the Secretary General of the HCCH, Dr Christophe Bernasconi, for the technical and administrative arrangements relating to the secondment of legal professionals at a virtual ceremony. I thank eBRAM for providing the technological support to make the digital signing possible notwithstanding the pandemic.

This is the first standing arrangement for legal professionals in both the public and private sectors from Hong Kong to be seconded to the Permanent Bureau of the HCCH for a short-term placement. Secondment usually confines to government officials but we reached an agreement with the HCCH that private legal practitioners are also allowed to join the programme. The duration of the secondment is normally six to 12 months. With the support from the Hong Kong Government, successful applicants from the private sector will receive a monthly allowance of HK$50,000 from the HCCH. My deepest gratitude goes to the Central People’s Government and the HCCH for their tremendous support.

The secondment programme with the HCCH is now open for application until February 18. I encourage local lawyers (Hong Kong permanent residents with Chinese nationality), who are either in private practice or working in the Government or public bodies, to seize this opportunity to broaden his/ her perspective and gain unique experience working at the HCCH.

There is a growing number of cases in civil, commercial, criminal and family-related matters which require cross-jurisdictional legal services. Knowledge in private international law becomes an inevitable tool in the practice of law.

This secondment programme with the HCCH presents a promising pathway to work in an international organisation where participants could gain top-notch experience in issues in private international law and broaden their horizons through collaborating with international law experts. It also provides a valuable opportunity for participants to hone their leadership skills through engaging in different projects and experiencing the global development of international law. Such exposure will undoubtedly benefit their future career advancement. These secondees could become ambassadors of Hong Kong and these international organisations could connect with Hong Kong’s legal talents, which will help raise Hong Kong’s profile and facilitate further co-operation.

Needless to say, the HCCH, a global inter-governmental organisation, enjoys a very prestigious status in the field of private international law. With currently 87 Members (86 States and the European Union), the HCCH develops and services multilateral legal instruments in a wide range of areas from commercial law and banking law to international civil procedure, responding to the global needs.

Over the years, the HCCH and the DoJ have been collaborating closely on various projects. We are delighted that the HCCH's Regional Office for Asia and the Pacific has moved into the former French Mission Building, which forms an important part of the Hong Kong Legal Hub. This secondment programme marks another milestone for the long-standing partnership between the two organisations.

Working in The Hague will be a unique experience. The International Court of Justice, the Permanent Court of Arbitration and The Hague Academy of International Law are all housed in the Peace Palace, a historic and elegant architecture. The Peace Palace Library of International Law, having the best collection of literature on international law, is a place not to be missed by those who love research in this area.

For legal practitioners who are interested in the programme, please visit our dedicated webpage at https://www.doj.gov.hk/en/miscellaneous/secondment_programmes_to_international_organisations.html for further details and application. We are exploring with other international organisations for secondment opportunities for our legal professionals.

January 28, 2021

The Department of Justice (DoJ) has reiterated that members of the public have the right to express their views on court decisions and related matters within the boundary permitted by the law. However, unrestrained personal attacks on judges are never tolerated. When the Court of Final Appeal was unjustly accused of giving in to pressure in reaching a decision, the DoJ promptly defended the Judiciary by dismissing such defamatory remarks. When the intimidation against a judicial officer came to light last month, the DoJ also in no time issued a press statement to condemn the violent act.

Judicial independence is the cornerstone of our society. Safeguarding judicial independence is not just the duty of any particular lawyer, but an obligation of every single law-abiding citizen. In my speech delivered at the Ceremonial Opening of the Legal Year 2018, I said that “[i]t is my duty to ensure that the independence of our Judiciary, as enshrined in the Basic Law, is respected and not arbitrarily attacked or criticised. I urge the community to take the same stance.” In particular the two legal professional bodies, the Hong Kong Bar Association and the Law Society of Hong Kong, which are the crucial stakeholders of the legal sector, are duty bound under the “Rules and Regulations” and the “Memorandum of Association” respectively to safeguard our judicial independence.

Since 2019, the Judiciary was under attack on many occasions, be it destruction of court facilities or malicious attacks against the Judiciary. The DoJ spared no efforts to defend the judicial system. When doxxing activities towards judges and other persons involved in the administration of justice were on the rise, as guardian of public interest, I made an application for injunction in October last year to restrain acts of doxxing against judicial officers and their family members. In granting the injunction, the court heavily condemned the conduct of doxxing by saying “what is impermissible is for the public commentary or criticism to descend into personal attacks, or worse still to the public encouragement of the invasion of privacy of, or harassment of, or threats to, or attempted intimidation of Judges or Judicial Officers or their families.”

Any person who acts in violation of an injunction order may be held in contempt of court. Under common law, criminal contempt of court means conduct calculated to interfere with the due administration of justice, and that there must be a real risk that the due administration of justice would be undermined by the relevant conduct. Criminal contempt of court can take many forms. Examples are conduct disrupting court hearings or insulting judicial officers; refusing to be sworn to give evidence when called as a witness in the face of the court; scandalising the court by scurrilous words or conduct against judges; publication of any report which prejudices the fair trial of on-going proceedings; and obstructing the execution of court orders, etc. A common thread which exists in these examples is the real risk of undermining the administration of justice caused by the objectionable conduct. The sanction in criminal contempt is to maintain public confidence in the administration of justice in Hong Kong, and therefore, for the protection of the rule of law. The DoJ would assess each circumstance objectively and carefully to ascertain whether the element of contempt of court is found. In the case of scandalising the court, contemnors found liable can be fined and sentenced to imprisonment.

Individuals from local and overseas communities, from time to time, have been found expressing views on certain ongoing cases. A number of politicians used to irrationally ask for the withdrawal of charges against some defendants and demand for their immediate release, or even launch spiteful comments on personnel who carry out prosecution work. For cases in which the legal proceedings are still underway, it is inappropriate for any of us, not only the DoJ, to comment as it is a matter of sub-judice. Members of the public ought to wait until the court arrives at a decision and they are advised to read the judgment in order to form any objective and informed discussions. Only by carefully reading and correctly understanding court judgments, one would be able to dispel any unwarranted misunderstanding.

January 17, 2021

As you all know, the Greater Bay Area (GBA) development is one of the major policy initiatives of the Central People’s Government. The Outline Development Plan for the Guangdong-Hong Kong-Macao GBA, which was published in February 2019, sets the directions guiding the development. It explicitly supports Hong Kong to establish itself as the centre for international legal and dispute resolution services in the Asia-Pacific region, recognising the distinctive advantages of Hong Kong’s legal system under the “One Country, Two Systems” principle.

The development of the GBA has brought many benefits to Hong Kong and opened up vast opportunities for various sectors, including legal and dispute resolution service which is well placed to seize such opportunities. The DoJ has been liaising with the relevant Mainland authorities, striving to implement more liberalisation measures and new initiatives in the GBA to the benefit of our legal and dispute resolution service sector.

We welcome two recent major breakthroughs which would facilitate the promotion of our services in the GBA:

(1) GBA Legal Professional Examination

One of the breakthroughs is the implementation of the GBA Legal Professional Exam, which adjusts the threshold for Hong Kong legal practitioners to practise Mainland law in the GBA.

Hong Kong solicitors and barristers with accumulated practice experience of five years or above are now eligible to apply for the GBA Legal Professional Examination. Upon passing the examination and obtaining a lawyer’s practice certificate (Greater Bay Area), legal professionals may provide legal services in the nine Mainland municipalities of the GBA on specified civil and commercial matters (including litigation and non-litigation matters) to which the Mainland laws apply, enjoying the same privileges and subject to the same obligations as Mainland lawyers. Application for the first examination was opened from November 16 to 26, 2020. The first examination would be held on January 30, 2021.

(2) Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region

The other recent major breakthrough is the signing of the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (Supplemental Arrangement) on November 27, 2020. The Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR (Arrangement), which was signed on June 21, 1999 and took effect since February 1, 2000, has been in force for more than 20 years. Co-operation between the Mainland and the HKSAR under the Arrangement has delivered fruitful results. The Arrangement provides a simple and effective mechanism on reciprocal enforcement of arbitral awards and fosters legal and judicial co-operation in civil and commercial matters.

The amendments to the Arrangement, made through the Supplemental Arrangement, include the removal of current restriction of the Arrangement to allow parties to make simultaneous application to both the courts of the Mainland and the HKSAR for enforcement of an arbitral award, which was made in accordance with the spirit of the New York Convention. Other amendments are: adding an express provision to clarify that a party may apply for preservation measures before or after the court's acceptance of an application to enforce an arbitral award for greater certainty; removing the list of Mainland arbitral institutions to align with the definition of the scope of arbitral awards with the prevalent international approach of "seat of arbitration" under the New York Convention; and expressly including the term "recognition" when referring to enforcement of arbitral awards in the Arrangement for greater certainty.

Coupled with the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR which became effective in October 2019, as well as the GBA Legal Professional Examination, the Supplemental Arrangement would be conducive to the continued development of Hong Kong's legal and dispute resolution services in the GBA.

In addition to the above measures, the DoJ has always been exploring the possibility of allowing wholly owned Hong Kong enterprises (WOKEs) set up in the Mainland to agree to choose Hong Kong laws to be the applicable law when entering into civil and commercial contracts, and choose Hong Kong as the seat of arbitration. In fact, we are glad to see some recent progress in this area in Qianhai (remarks). It is our hope that this initiative would be extended to cover Shenzhen and subsequently the whole GBA. "One Country, Two Systems and Three Jurisdictions" are the unique characteristics of the GBA. If the law of the three jurisdictions could be applied in the GBA, it would undoubtedly attract more investment from Hong Kong and overseas into the nine Mainland municipalities in the GBA, thereby opening up vast business opportunities.

On the premise of “One Country, Two Systems” and the principle of reciprocity and mutual benefits, Hong Kong should continue to consolidate and enhance its role and positioning in the 14th Five-Year Plan in order to contribute to the long-term development of Hong Kong, the GBA as well as the whole country. To this end, the DoJ is fully committed to capitalising on our strengths in the area of legal and dispute resolution services so as to integrate into the development of our country, as well as contribute to the prosperity of our country.

The situation of the outbreak remains severe. The measures by the Government to prevent the importation of cases and the spread of the virus in the community have gradually yielded results. However, the number of daily confirmed cases still fluctuate. I sincerely urge everyone of us should remain vigilant by staying at home to fight the pandemic, thereby allowing our city to resume its normal operation and return to a healthy environment and the path of development soon.

Remarks: On August 26, 2020, some Qianhai Regulations (see《深圳經濟特區前海深港現代服務業合作區條例》, 第57條) were passed allowing WOKEs established in Qianhai to choose Hong Kong law, to be the applicable law of their contracts, even in the absence of foreign-related elements. Companies set up in Qianhai by Macao, Taiwan or foreign investors also enjoy such entitlement under the provision.

January 03, 2021

We share the same objective with international bodies on the promotion of the use of LawTech. At the global level, we are fully aware that a number of international and regional organisations have already been putting forth and adopting ODR service. As pointed out by the United Nations General Assembly in 2016, ODR “can assist the parties in resolving the dispute in a simple, fast, flexible, and secure manner, without the need for physical presence at a meeting or hearing".

According to a recent study by the Asia-Pacific Economic Cooperation (APEC) Business Advisory Council, 94% of micro-, small- and medium-enterprises (MSMEs) reported that dispute resolution was one of the greatest challenges they face when trading across borders. Since 2017, the APEC’s Economic Committee has been looking into the issues and put forward a work plan for developing a cooperative ODR framework.

Against this background, APEC’s Economic Committee, chaired by a DOJ counsel, endorsed the APEC Collaborative Framework for Online Dispute Resolution of Cross Border Business-to-Business Disputes (APEC ODR Framework) in August 2019 to encourage MSMEs in tapping ODR for negotiation, mediation and arbitration for business-to-business disputes. The ultimate goal is to develop an online platform to resolve low-value disputes across borders, which will be vital for MSMEs.

The outbreak of the pandemic has caused significant disruptions to the international supply chain. Loss of business due to social distancing and other anti-pandemic measures would lead to serious cashflow issues if MSMEs are withheld payment due to disputes, endangering their survival. When face-to-face dispute resolution has been rendered ineffective under the pandemic, there is a pressing need for MSMEs to resolve disputes in a time-efficient and cost-efficient manner. An ODR platform will overcome geographical barriers and save huge amounts of time and costs.

In April, Hong Kong has opted into the APEC ODR Framework, joined by more and more APEC economies. The APEC Economic Leaders jointly issued a declaration on 20 November 2020 that, “we recognise the need for continued structural reforms to improve the ways of doing business and unleash economic prosperity for our people, including accelerating cooperation on digital literacy and skills development to harness technological transformation, and encouraging the use of digital technology to resolve cross-border business-to-business disputes.” In line with the APEC ODR Framework, we launched the COVID-19 ODR Scheme back in June.

The DoJ will continue to explore measures to further promote the use of LawTech. The suggestion of developing the Hong Kong Legal Cloud aims to provide secure, reliable and affordable data storage services for the local legal and dispute resolution sector, in collaboration with an efficient and cost-effective platform to resolve disputes for MSMEs, with a view to keeping pace with global changes and manifesting Hong Kong’s capacity in the area of LawTech.

December 02, 2020

Despite the fact that the Basic Law has been successfully implemented in Hong Kong over the years, there are still people who do not fully comprehend the Constitution and the Basic Law. Some mistakenly believe that the Constitution does not apply in Hong Kong or even forget that “one country” is the precondition of the “one country, two systems” principle. There are also people deliberately making statement about the Basic Law selectively, leading to misapprehensions. We hope that by going “Back to Basics”, the theme of the summit, it could help all of us to understand the Basic Law accurately. At the summit, Vice-Chairman of the Committee for the Basic Law of the Hong Kong Special Administrative Region (HKSAR) under the Standing Committee of the National People's Congress (NPCSC), Mr Zhang Yong, and the Chief Executive respectively mentioned “learning the new by reviewing the old” and “staying true to the original intention”, as being relevant when we look into the basics of the Basic Law. I fully agree. In order to get the true essence and meaning of the Basic Law, it is necessary to remind ourselves of its original intent. The Basic Law has only two purposes which have been clearly stated in the preamble: upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong.

Mr Zhang’s speech provided us with a clear and proper understanding of the relationship between the Constitution and the Basic Law. He explained that the constitutional basis of the HKSAR is formed by the Constitution and the Basic Law. He reiterated that China is a unitary state, meaning all powers come from the Central Authorities, and the powers enjoyed by the HKSAR are authorised by the Central Authorities. This is how the “one country, two systems” have to be understood. He further elaborated on the legal hierarchy of the Constitution, the Basic Law and the laws of the Special Administrative Region, as well as that of the legislatures at the national and the regional and Special Administrative Region levels. With this background, we would then be able to return to the basics so as to properly understand the Basic Law.

The vice president of International Court of Justice, Judge Xue Hanqin, highlighted the contributions “one country, two systems” principle has made to the international law. The “one country, two systems” principle, which is an innovative concept, ensured Hong Kong’s smooth transition and return to the motherland. The Chinese and British governments resolved the dispute and their differences in looking at the situation that was left over from history by negotiations, leading to a peaceful settlement, thereby providing a good example for implementation of the international law.

At the panel discussion session, various legal experts shared with us the process by which the Basic Law was drafted and also their views on its legislative intent. Former Chairman of the Committee for the Basic Law of the HKSAR under the NPCSC, Mr Qiao Xiaoyang, clearly presented that the concept of the “Chief Executive System” has been adopted in Hong Kong’s political system and pointed out that the executive-led system is supported by a number of provisions in the Basic Law. Mr Qiao also provided six keys to study the Basic Law. Allow me to recap here. First, one must view the Basic Law from the national perspective. Second, it must be understood that the constitutional status of the Basic Law is from the Constitution. Third, the Basic Law is an “authorisation law”. Fourth, the Basic Law should be understood in its entirety. Fifth, the “one country, two systems” principle is the basic for implementing the Basic Law. And sixth, the Basic Law should be implemented with the people and their development in mind. No matter how familiar you are with the Basic Law, I encourage all of you to review the insightful presentations(https://www.legalhub.gov.hk/events_detail.php) by all the speakers of the summit.

I am delighted to know that the summit gave us an opportunity to walk through the interpretation of the Basic Law, and have a deeper understanding of the responsibility of maintaining national security under “one country” as well as the overall situation of national security laws in China. At the same time, with “one country” as the root, the “two systems” under the “one country, two systems” principle have also brought us tremendous benefits. CEPA has achieved numerous favourable results in terms of reciprocal benefits and complementarity, thereby opening up ample business opportunities for the legal sector. The mutual legal assistance and the interim measures arrangement have further enhanced Hong Kong’s international arbitration services by consolidating our status as a centre for dispute resolution.

I am indebted to all the speakers and guests who either physically attended the summit or joined us online. Their wisdom has enlightened the audience on how the Basic Law has been successfully implemented, allowing us to go back to the basics and reflecting on the original intent and purpose of “one country, two systems”. Looking forward, I wish we could join hands to consolidate the foundation of the Basic Law with a view to ensuring the continued success of "one country, two systems"

November 22, 2020

The NPCSC’s Decision has solid legal basis, which can be summarised in four points. Firstly, it is made in pursuant to the Constitution of the People’s Republic of China (PRC). Articles 52 and 54 respectively stipulate that “it is the duty of citizens of the People’s Republic of China to safeguard the unification of the country and the unity of all itsnationalities”, and “it is the duty of citizens of the People’s Republic of China to safeguard the security, honor and interests of the motherland; they must not commit acts detrimental to the security, honor or interests of the motherland” while Article 67(1) sets out that the NPCSC shall exercise the functions and powers “to interpret the Constitution and supervise its enforcement”. The NPCSC has the duty to maintain the constitutional order of the HKSAR and to ensure that members of LegCo, who continued to discharge their duties in the sixth-term LegCo, must be in compliance with the legal requirements and preconditions for taking up the post of a LegCo member by upholding the Basic Law and pledging allegiance to the HKSAR of the PRC.

Secondly, according to the Decision on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security by the National People's Congress (NPC) and the Hong Kong National Security Law, it safeguards the systems under “One Country, Two Systems” from the perspective of national security. If people advocate or support "Hong Kong independence", refuse to recognise the PRC's sovereignty over Hong Kong and the exercise of the sovereignty, solicit intervention by foreign or external forces in the HKSAR's affairs, or carry out other activities endangering national security, they could not genuinely uphold the Basic Law and bear allegiance to the HKSAR of the PRC. They could neither fulfil the legal requirements and conditions for a LegCo member nor have the qualifications of a LegCo member.

Thirdly, it is made in accordance with the legal requirements and preconditions in respect of taking up the post of a LegCo member under Article 1 and the provision that any conduct in breach of the oath after the oath taking shall bear legal responsibility in accordance with law under Article 3 of the Interpretation of Article 104 of the Basic Law of the HKSAR of the PRC by the NPCSC (Interpretation of Article 104) in 2016. Article 1 of the Interpretation of Article 104 states that “to uphold the Basic Law and to bear allegiance to the HKSAR of the PRC” are not only the legal content which must be included in the oath but also the legal requirements and preconditions for standing for election in respect of or taking up the public office. At the same, the first paragraph of the Decision sets out the conducts which are in breach of the oath. When the member is so decided in accordance with law, he or she is immediately disqualified from being a LegCo member.

Lastly, the 811 Decision provides for the legal basis for LegCo members to continue discharging their duties in the sixth-term LegCo. Under such a special circumstance, the NPCSC has a constitutional duty to handle the issue concerning the qualification of LegCo members arising from the continuing discharge of duties by the LegCo, in particular whether they are in compliance with the legal requirements and preconditions of upholding the Basic Law and pledging allegiance to the HKSAR of the PRC. As the nominations of the four persons in question had been invalidated by Returning Officers in accordance with the Legislative Council Ordinance when they applied to participate in the LegCo election of the seventh-term, they were not qualified for taking part in the LegCo election and are naturally unable to be LegCo members. Therefore, the NPCSC passed a motion to decide that members of the sixth-term LegCo whose nominations were decided to be invalid in accordance with law by the HKSAR (including invalidation of nomination by Returning Officer under the Legislative Council Ordinance), he or she is immediately disqualified from being a LegCo member. The disqualification of LegCo members was therefore announced by the HKSAR Government according to the Decision.

Indeed, if we think hard, it is not difficult to understand that but for the special circumstances this year: the 811 Decision by the NPCSC was required to address the continuing discharge of duties by the LegCo caused by the postponement of the election, and that the Governmenthas not completed the exercise of the relevant local legislation on the Interpretation of Article 104, the four persons, whose nominations were invalidated, could not take part in the original LegCo election, and needless to say they could not take up the office as a LegCo member. The HKSAR Government had to request the Central Authorities to invite the NPCSC to make a decision on this special constitutional issue.

We should all bear in mind that China is a unitary state and power comes from the Central Authorities. Constitutional matters are ought to be handled by the NPC or NPCSC in accordance with the Constitution. Its legal decisions or instruments can provide legal basis with binding effect.

The Interpretation of Article 104 clearly states that oath takers must uphold the Basic Law and bear allegiance to the HKSAR of the PRC, adding that oath taker, who engages in conduct in breach of the oath, shall bear legal responsibility in accordance with law. These are already reflected in the first and third provisions of the Decision. Since the Interpretation of Article 104 has been made, the HKSAR Government endeavours to expedite the legislative procedure for local legislation which is fully supported by the Department of Justice. The HKSAR Government is determined to correctly fulfil its relevant constitutional duty.

November 14, 2020

The Hong Kong Legal Hub, comprising the former French Mission Building (FMB), certain space in the West Wing of former Central Government Offices (CGO) and part of Two Exchange Square, houses a number of renowned law-related organisations (LROs). The FMB is the centre for international law where offices of local, regional and international bodies are set up, facilitating easy and effective exchanges. Two Exchange Square, a linkage between the core of our city and the international airport, is a prime location for international dispute resolution institutions. Meanwhile, the backbone and very important part of the local and regional LROs are located in the West Wing of former CGO. Together with the Department of Justice offices in the Main Wing, the East Wing and part of West Wing of the former CGO, the whole area forms an international legal hub at the heart of Hong Kong.

The Inaugural Rule of Law Congress was one of the flagship programmes of the Hong Kong Legal Week 2020. Distinguished speakers shared their views on enhancing existing legal aid systems in pursuing access to justice for all. They also shared experience and addressed the need for ongoing capacity building to strengthen and enhance judges’ ability in discharging their judicial functions, for example, better use of technologies in court, in light of the difficulties brought by the pandemic.

Amid all the challenges in light of COVID-19, we were delighted to learn that the Sports Dispute Resolution Conference and the Mediate Conference were both well-received despite they were held online. In fact, this arrangement allowed us to reach out to more audience in Hong Kong and other parts of the world, free from limitations on the physical space or geographical location.

During this week, we are have been able to gather information on how to explore further in setting up a dedicated scheme for sports dispute resolution in light of the conference on the subject.

The annual Hong Kong Mediation Lecture focused on investment mediation, a subject that the DoJ has been promoting. Next Monday, we will hold another hybrid online event with UNCITRAL and Asian Academy of International Law: UNCITRAL Working Group III Virtual Pre-Intersessional Meeting on the Use of Mediation in ISDS. If you have registered, you can watch the conference anywhere around the world with only an internet connection.

I hope that the Hong Kong Legal Week 2020 would not only keep us abreast of the latest legal developments, but also provided us with a platform to explore collaboration. You are most welcome to review all the programmes at the dedicated webpage: https://www.legalweek.hk.

The pandemic has highlighted the importance of technology and the numerous benefits that it could bring. In order to keep pace with global changes, the DoJ would continue to make the best use of technology to enhance the efficiency of our work.

At the same time, we would spare no effort in promoting LawTech in the legal, deal-making and dispute resolution sector. We are determined to capitalise on the opportunities brought by the development of our country, actively participate in the 14th Five-year Plan by building Hong Kong as an international innovation and technology hub, establishing a functional platform for the Belt and Road Initiative as well as taking part in the planning of the Greater Bay Area with a view to integrating into the overall development of our country.

November 7, 2020

The maritime industry covers a wide spectrum of services and plays a pivotal role in our trade and economic development. Facing an uncertain global economic outlook and fierce competition from nearby regions, Hong Kong must make the best use of its maritime “software” such as maritime legal services, ship finance and marine insurance in addition to the existing well-established port infrastructure. We also need to grasp the opportunities brought by the Belt and Road Initiative and the Greater Bay Area development with a view to enhancing our role as a maritime hub.

The Baltic and International Maritime Council (BIMCO) has recently announced its adoption of the BIMCO Law and Arbitration Clause 2020 which includes Hong Kong as one of the four designated arbitration venues. This decision not only recognises Hong Kong’s increased popularity as a centre for dispute resolution, but also reflects Hong Kong’s position as a leader in the area of international maritime arbitration. This favourable outcome is a result of the concerted effort in promoting maritime arbitration by the Hong Kong Maritime Arbitration Group, Hong Kong Shipowners Association as well as various government departments over the years. My gratitude is also extended to the China Shipowners’ Association and COSCO shipping, representing the maritime transport sector and shipping industry of China respectively, for their unfailing support to our maritime legal and dispute resolution services.

BIMCO is a renowned and leading NGO in the shipping industry and is specialised in promoting global standard forms. The new BIMCO Law and Arbitration Clause 2020 incorporates the specific provisions of each venue for users’ selection and also includes new and useful provisions relating to the serving of notices. We hope this will help attract more maritime arbitrations to be conducted in Hong Kong, with a view to enhancing and promoting Hong Kong’s status as an international legal hub for legal, deal-making and dispute resolution services.

Hong Kong has always been the prime international logistics hub in Asia with our world-class infrastructure and diversified talent pool in areas such as law, financial services, accounting, insurance, transport and logistics, as well as aviation and shipping. Since the 1950s, Hong Kong has developed its international and domestic operations in logistics. Over the years, we have established a valuable global network and accumulated ample experience, thereby facilitating Hong Kong to become an unparalleled supply chain base and a hub for cargo and transport routes via land, sea and air.

At the same time, Hong Kong provides a wide range of maritime services including arbitration and dispute resolution. We have lawyers and arbitrators from different professional backgrounds and jurisdictions. A number of them are professionally trained in maritime business and proficient in both English and Chinese, coupled with Western experience and knowledge of Chinese practices. They are able to offer high-end maritime law and arbitration services to shippers, shipowners and commodities owners in aspects such as ship financing, shipbroking and maritime insurance.

Arbitration is a way of dispute resolution based on the agreements of the parties concerned as set out in the contract. When the parties concerned agree to submit the dispute to arbitration, the arbitration tribunal shall make the decision which is final and binding on the parties concerned. Under the current situation of global economic growth, arbitration is an important means to resolve disputes.

Hong Kong has enormous potential to become an international hub for high-end maritime services. The Department of Justice will continue to create a favourable environment for the development of maritime arbitration to form a good synergy with shipping and port operations. We must also capitalise on our solid foundation and further explore international markets to complement the rapid development of China as the second largest economy in the world.

October 31, 2020

Since the Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area (the Outline Development Plan) was announced last year, the Department of Justice has been actively communicating with relevant Mainland authorities to reflect views and expectations of the department and Hong Kong legal sector, which are carefully considered by the Central Authorities. It demonstrates the unique position and advantages enjoyed by the HKSAR under the “One Country, Two Systems” principle.

I am delighted to learn that the guidelines of the pilot programme for Hong Kong and Macao legal practitioners to obtain Mainland practice qualifications and to practise law in the nine Pearl River Delta municipalities in the Guangdong-Hong Kong-Macao Greater Bay Area allow solicitors and barristers with five years of post-qualification experience to apply for the examination. Young legal practitioners will be able to grasp the opportunities brought by the development of the Greater Bay Area. Relevant legal training to be organised by the Ministry of Justice will help better equip Hong Kong's legal practitioners for the examination.

The guidelines published by the General Office of the State Council set out the requirements for the legal professional qualifying examination, the scope of practice and more. I outline the following provisions in the guidelines which are relevant to Hong Kong legal practitioners.

(1) Eligibility for examination:

* Hong Kong permanent residents who are Chinese nationals;
* Upholding the Constitution of the People’s Republic of China and the Basic Law of the HKSAR;
* Qualified solicitors or barristers with five-year post- qualification experience.

(2) Examination

* Legal practitioners can sit for the examination after attending the training course organised by the Ministry of Justice.

(3) Practising

* Hong Kong legal practitioners who passed the examination are required to enroll in a training course organised by the Guangdong Lawyers’ Association and undergo an assessment before they can apply to the Department of Justice of Guangdong Province for practice.

(4) Scope of practice

* Legal practitioners, who have obtained the legal qualification (for practice in the Greater Bay Area), can provide legal services regarding specified civil and commercial affairs (including litigation and non-litigation matters) to which the Mainland laws are applicable in the nine Mainland cities of the Greater Bay Area.

Since 2004, Hong Kong residents have been allowed to sit for the National Judicial Examination (now known as the National Unified Legal Professional Qualification Examination). However, the passing rate is far from satisfactory. The newly introduced measures will no doubt encourage more lawyers from Hong Kong to take part in the examination and provide legal services, after obtaining Mainland practice qualifications, to enterprises with investment in the Greater Bay Area. It will help the expansion of our professional legal services and further identify business opportunities. At the same time, enterprises which retain Hong Kong lawyers who are qualified for practice in the Greater Bay Area as well as in Hong Kong will be able to access to legal advice which form a solid legal basis of their investment, thereby attracting more investment in the area and leading to a win-win situation, reflecting the mutually beneficial relationship between the two places.

In addition, there are already various measures under the CEPA that facilitate the legal sector in developing the Mainland market, including association in the form of partnership and arrangement for Hong Kong legal practitioners (including barristers) retained as legal consultants by Mainland law firms. The Department of Justice will continue to enhance our collaboration on judicial and legal services with our counterparts in Guangdong and Macao under the Outline Development Plan.

The Department of Justice of Guangdong Province announced in August last year the “Trial Measures of the Department of Justice of Guangdong Province on Hong Kong Law Firms and Macao Law Firms Operating in the Form of Partnership Association with Mainland Law Firms in Guangdong Province (2019 Revision)” in which further liberalisation measures relating to partnership associations set up between Mainland and Hong Kong law firms in the Guangdong Province were implemented. These include the removal of the minimum capital injection ratio of 30 per cent by Hong Kong partner firms in the partnership associations set up between Mainland and Hong Kong law firms, as well as allowing Mainland and Hong Kong lawyers to be employed direct in the partnership associations’ own name with a view to encouraging more Hong Kong law firms to expand their business in the Guangdong Province. Also, Hong Kong legal practitioners, including barristers, are benefitted under the “Agreement Concerning Amendment to the CEPA Agreement on Trade in Services”, in which the current restriction of retention of Hong Kong solicitors and barristers as legal consultant by only one Mainland law firm has been relaxed, allowing them to be retained as legal consultant by no more than three Mainland law firms at the same time.

The amendment to the Shenzhen Special Economic Zone Qianhai Shenzhen-Hong Kong Modern Services Cooperation Zone Regulations was passed in August. Article 57 of the amendment allows Hong Kong, Macao, Taiwan and foreign-funded enterprises registered in the Qianhai cooperation zone to choose, by agreement, applicable laws in civil and commercial contracts. This liberalisation measure represents a breakthrough, indicating that the 11,000 enterprises registered in the Qianhai cooperation zone may now choose applicable laws, including Hong Kong laws, when entering into civil and commercial contracts.

We are now exploring and studying the possibility of introducing an initiative to allow “Hong Kong-owned enterprises to adopt Hong Kong laws and arbitration to be seated in Hong Kong”. We hope that wholly owned Hong Kong enterprises (WOKE) in the Greater Bay Area, in the absence of any foreign-related elements, may choose the law of Hong Kong as the applicable law when entering into civil and commercial contracts, and decide to choose Hong Kong as the seat of arbitration when disputes arise. Therefore, the agreement on choosing Hong Kong laws or using Hong Kong as the seat of arbitration will not be considered invalid due to the absence of any foreign-related elements. This initiative, if successfully implemented, will become another piece of good news to the Hong Kong legal sector and business and attract more investment in the Greater Bay Area.

The Constitution of the PRC and the Basic Law have laid a solid foundation for "One Country, Two Systems" which provides Hong Kong with a unique status and advantages. The plan on implementing pilot reforms in Shenzhen to build the city into a demonstration area of socialism with Chinese characteristics for the 2020-2025 period announced earlier calls for a higher level of cooperation between Shenzhen and Hong Kong, as well as improvement of cross-border cooperation in the area of the rule of law, international legal and dispute resolution services. We must seize the opportunity, capitalise on our strengths and complement with Shenzhen so as to achieve a win-win situation.

October 26, 2020

After 71 years of development, our country has made significant achievements with rapid economic and social changes. In 1978, China adopted a policy to modernise the agriculture, industry, science and technology as well as national defense, embarking on the remarkable journey of reform and opening-up. Today, China has become the second largest economy in the world.

In the early days of our country’s reform and opening-up, a large number of Hong Kong entrepreneurs invested in the Mainland and became China’s window to the world, bringing in capital, talent and management system. Meanwhile, a lot of Hong Kong manufacturers moved their production lines northward to the Pearl River Delta region, creating business opportunities for entrepreneurs and making Hong Kong the bridge linking the Mainland and the global market. This enabled Hong Kong to establish and reinforce its present position as an international commercial, logistic, shipping, financial and professional service centre.

Hong Kong has been leveraging its advantages to integrate into the growth of our country, manifesting the principle of “joint development, shared prosperity”. The results were well recognised. The Belt and Road Initiative and the development of the Greater Bay Area have provided ample opportunities to us. We should capitalise on our unique position under the “One Country, Two Systems” and utilise our talent and experience in finance, legal and technology sectors to complement the development of the Greater Bay Area and expand our business along the Belt and Road development. This will not only revitalise the city but also make new contributions to our country.

This year also marks the 30th anniversary of the Basic Law's promulgation. The concept of “One Country, Two Systems” is successfully implemented in the form of law under the Basic Law, keeping Hong Kong prosperous and stable. The Department of Justice is currently preparing for “Legal Summit for the 30th Anniversary of the Promulgation of the Basic Law – ‘Back to Basic’” in which experts will be invited to talk about the relationship among the Constitution, the Basic Law and “One Country, Two Systems” from different perspectives, with a view to enhancing the public's understanding of the Constitution and the Basic Law.

In the Chinese tradition, country and family are inseparable. Our country provides a strong support to each of her nationals, ensuring that we can live and work in peace and prosperity. A stable family leads to a prosperous society. Last but not the least, I wish our country continued peace and prosperity in the years to come.

October 1, 2020

First of all, it is important to understand that China is a unitary state. According to the constitutional structure of China, power comes from the Central Authorities. The system of people's congress is China's political system. The HKSAR was established by a Decision made by the National People's Congress (NPC) in accordance with the Constitution. The Basic Law was also adopted by the NPC. The HKSAR was empowered to discharge its duties by the NPC through the Basic Law. According to Articles 43 and 60 of the Basic Law, the Chief Executive shall be the head of the HKSAR and the head of the Government of the HKSAR. As head of both the HKSAR and its government, the Chief Executive shall exercise the powers and functions conferred by the Basic Law to discharge his or her duties. Article 48 states that the Chief Executive shall lead the Government of the HKSAR, sign bills, decide on government policies and etc. This fully reflects the executive-led style of governance in our structure.

Secondly, with a common goal of building a better Hong Kong, the provisions of the Basic Law set out the different powers and functions of the executive authorities, the legislature and the judiciary. In accordance with the Basic Law, the Government of the HKSAR is responsible for formulating policies and introducing bills. The Legislative Council of the HKSAR shall enact laws as required, which will be implemented or enforced by the Government. The Government is also responsible for drawing up budgets to be scrutinised by the Legislative Council. It is worth noting that members of the Legislative Council in introducing bills relating to government policies have to obtain a written consent of the Chief Executive. Clearly, under the political structure set out in the Basic Law, the executive and legislative branches are inter-related in performance of functions, but the powers of introducing bills mainly rest with the executive.

The Basic Law empowers the courts of the HKSAR to exercise judicial power independently, including that of final adjudication. Some have raised concerns over the judicial independence in the light of the political structure of the HKSAR. But these concerns are totally unfounded. Article 85 guarantees that the courts of the HKSAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions. At the same time, the Basic Law also provides that judges of the courts of the HKSAR shall be appointed by the Chief Executive on the recommendation of an independent commission. Although the executive authorities enjoy greater power in policy making under the political structure of the HKSAR, they must abide by the law. Their decisions are also subject to judicial challenges which will be handled by the court independently based on applicable laws and evidence.

The Basic Law safeguards the exercise of judicial power by members of the judiciary without interference. According to the late Chief Justice of the United Kingdom, Lord Bingham, the meaning of "judicial independence" is "independent in the sense that they (adjudicators) are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial" (remarks). The political structure laid down in the Basic Law fully reflects the principle of rule of law and the essence of judicial independence.

A proper understanding of the political structure from the perspective of the constitutional order of the HKSAR clearly shows our system is based on an executive-led structure. We should all refrain from looking at the labelling of a concept, on the contrary, we have to appreciate its intrinsic meaning so as to avoid any unwarranted disputes.

Remarks: See "The Rule of Law" Cambridge Law Journal, 66(1), P.67-85, March 2007.

September 5, 2020

At the ceremonial opening of the legal year 2020, I highlighted the importance of reinforcing the societal recognition and implementation of the rule of law in Hong Kong, outlining an initiative which spans over 10 years for the promotion and education of the rule of law. One of the short term targets is strengthening the community’s understanding and practice of it through promotion, education and capacity building. To achieve this objective, the Department of Justice (DoJ) has devised plans to roll out public education projects for various sectors, including the general public.

Rational and constructive exchanges of views on court decisions will help promote the awareness of the concept of rule of law in society. While there are frequent discussions about the outcome of a case, little is reported relating to the reasoning that set out the legal and evidential basis of the judgment. Only by looking at the reasoning of a judgment will one be able to apprehend the basis of the decision and then to participate in an informed discussion. In Hong Kong, judgments are available at the Judiciary’s website.

However, judgments are usually thorough and hence inevitably long. Issues involved in a case can be plentiful and complicated, necessitating both factual and legal analysis. They will also contain legal concepts that may not be easy to understand. These features may unfortunately deter some members of the general public from embarking on a perusal of the judgment.

Since 2018, the Department of Justice (DoJ) has set up a dedicated page “Summary of Notable Judgments” to provide a brief account of the main points in notable judgments by the High Court (Court of First Instance and Court of Appeal) and the Court of Final Appeal. Cases are selected on the basis that they involve significant legal principles, issues of public interest, or that they are of general interest to the community. We hope that the public, by reading the summaries, will not only be able to grasp the most important aspects of the judgments, but also experience the analytical process undertaken by the judge when dispensing justice.

In each summary, we provide a brief background, legal issues arising from the dispute, and main points of the decisions by the court. However, we do not include our own points of view in the summary so as to enable the readers to get to know the reasons for the decisions in an objective way.

The duty of judges is to adjudicate cases before them in accordance with law and evidence. This is done by taking all admissible evidence in context and applying the same to the law objectively and impartially. Similarly, it is equally important for one to avoid making over-generalised view or passing judgment on a matter based only on versions from one side. Instead, we should remain in a reasonable and objective manner by adopting an open mind, considering all relevant facts and analysing from different perspectives before we come to any conclusion.

Yet, judges may err too. There may be situations in which the parties have to consider taking the matter further to appeal. When the judge’s decision in the case was wrong by erring in law, in fact, or in the exercise of his/ her discretion; or if the decision was unjust because of a serious procedural or other irregularity, the DoJ will have to decide whether or not to appeal or in the case of criminal cases to appeal by way of case stated, or institute review of sentence, etc. Our decisions have to be made in accordance with legal principles and court procedures and a result of our careful analysis of the case in context.

We hope that the “Summary of Notable Judgments” on the DoJ website will encourage the general public to be better informed of how our legal system operates and to be more interested in the correct principles of law that are akin to our daily lives. We share the same objective with the Secretary for Education to foster the right values of students by helping them to better understand the Basic Law and the spirit of the rule of law. In the near future, the DoJ will roll out more capacity building programmes and further strengthen collaboration with local and international stakeholders with a view to achieving our mission of “Rule of Law and Justice for All”.

August 30, 2020

When the epidemic is still widespread in the community, if the election is held as scheduled, group gatherings caused by electioneering activities by candidates would raise the risks of the spread of COVID-19. Yet while the regulations on the restrictions on group gatherings are still effective, the electioneering activities could not be conducted properly by candidates. Further, with four million voters all gathering to vote at polling stations on the same day, it might cause an outbreak in the community. Elderly voters might refrain from voting due to health consideration. Another phenomenon is that there is a large number of voters in the Mainland and stranded overseas who could not return to Hong Kong to cast their votes due to border control.

Reasons for postponing for one year include: the pandemic is unlikely to subside soon. It is unrealistic to invoke section 44 of Legislative Council Ordinance to postpone the election for 14 days repeatedly. Secondly, postponing the election for one year, with a particular date identified, would give certainty to all parties concerned. Thirdly, voter registration exercise usually takes months to finalise. Those who are eligible but have not yet completed the registration would not be able to exercise their right to vote if the election is to be held in early 2021. Fourthly, the LegCo performs important functions and it is important to ensure its proper functioning. It considers the Chief Executive's Policy Address from October to November and scrutinises the Budget from around February to May every year. Postponing the election for a year provides the certainty for the LegCo to continue to function according to its annual cycle. Last but not the least, existing LegCo members would not be able to conduct electioneering activities if the election is to take place in the middle of the cycle.

The Chief Executive in Council decided to postpone the election so as to safeguard public interests in the light of the risk to public health and the emergency of the situation. The Emergency Regulations Ordinance allows the Chief Executive in Council to legislate speedily and effectively under such circumstances. Owing to the severe epidemic situation, the Chief Executive in Council invoked the Emergency Regulations Ordinance to postpone the election for a year in order to protect public safety and public health as well as to ensure that a fair and open election can be conducted. The Chief Executive, as the head of the HKSAR and being accountable to the Central People's Government under Article 43 of the Basic Law, submitted a report and suggestion to the Central Authorities on July 28. On the following day, the State Council expressed its support to the resolution by the Chief Executive in Council and agreed to make a submission to the NPCSC for a decision.

China is a unitary state and the constitutional structure stipulates that power comes from the Central Authorities. Matters relating to constitutional order should be handled by the National People's Congress (NPC) in accordance with the Constitution of the People's Republic of China (PRC). The NPC and the NPCSC are powered to make legal decisions or instruments.

The Decision by the NPCSC, which has been made in accordance with the PRC Constitution and the Basic Law, expeditiously resolved the problem that the HKSAR could not handle on its own from a constitutional perspective. The sixth-term LegCo would continue to function for no less than one year until the beginning of the seventh-term, thereby providing flexibilities and a solid legal basis to the Government. The Decision also stated clearly that the seventh-term LegCo would have a term of four years as set out in Article 69 of the Basic Law, which obviates the need to amend the Basic Law. One must not forget that the Basic Law is a constitutional document and it is uncommon to amend it for a single one-off instance. The Decision provides a legal basis which is binding and deals with the special situation. It is right and proper that the NPCSC resolved the constitutional matter by the Decision.

The rule of law is well established in Hong Kong. When the Government realises that it does not have the power to resolve issues related to the lacuna arising from the postponement of the election, it is necessary for the highest state organ of power to handle the matter in accordance with the PRC Constitution and the Basic Law. In a judgment of a judicial review delivered in 2018 (HCAL 1160/2018), the Judge accepted the expert evidence that the NPCSC's decision has legal effect under the PRC law and is binding on governmental authorities in the Mainland as well as the HKSAR including Hong Kong courts, adding that Hong Kong courts have no power to determine the validity of the NPCSC's decision under Hong Kong laws.

The NPCSC's Decision followed the constitutional order and is applicable to the HKSAR. It is in line with "one country" and respects "two systems". The power to deal with this constitutional lacuna caused by the postponement of the election is never within the autonomy nor jurisdiction of the HKSAR, whether one is talking about the Government or courts. The common law preserved in the Basic Law is not in any way affected. The suggestion that the Decision means that Hong Kong no longer exercises the common law and the Basic Law is totally baseless. The fact that such fundamental issues are mistaken means that the constitutional structure, purpose and meaning of the Constitution and the Basic Law are not fully appreciated and more have to be done to ensure that such issues are properly understood.

Now that the postponement of the election and the constitutional lacuna are addressed, we must fight the COVID-19 pandemic in solidarity and focus on our economic development and improving people's livelihoods so as to keep our society moving forward.

August 16, 2020

August 02, 2020

Hong Kong has been playing its part in measures that may be described as recognize, strategize, legalize and revitalize, like what I said in a webinar (https://spblegalforum.com/en/Video_Addresses). The recent third wave may need us to revive and modify what has been done so as to contain the damage whilst getting ready for the new normal.

In controlling borders as one of the first strategy, exemptions have to be introduced. The Department of Justice introduced a mechanism for eligible legal practitioners, arbitrators or mediators to apply for exemption from the compulsory quarantine arrangement (www.doj.gov.hk/eng/public/20200519_sjo1.html). We further expanded the scope to allow more legal practitioners who are providing necessary professional services in relation to important and large-scale commercial transactions for exemption. Without such move, some proceedings might need to be postponed. On the other hand, this measure helps contribute to maintaining Hong Kong as a capital raising centre for Mainland enterprises as many listing work nowadays ties with the Mainland.

The LawTech Fund, which was established by the Government under the second round of the Anti-epidemic Fund to subsidize eligible law firms and barristers’ chambers in procuring and upgrading information technology systems, encourages the use of technologies in the provision of legal services in light of the General Adjourned Period by the Judiciary. More than 290 applications have been received so far. As some practitioners are looking for more time in preparing their applications following the announcement of the Judiciary’s expanded practice for remote hearings through the use of video-conferencing facilities, we have extended the closing date to July 26. This also allows them to take into account the Judiciary’s integrated court case management system, an electronic mode for handling court-related documents and payments, in procuring suitable LawTech equipment.

Last but not the least, the COVID-19 Online Dispute Resolution Scheme (www.ebram.org/covid_19_odr.html) managed by eBRAM was launched to facilitates negotiation, mediation and arbitration between parties through an online platform to resolve disputes arising from or related to COVID-19. This speedy and cost effective means to resolve disputes, becoming a new normal in our daily life, may help relieve court’s caseload in civil claims. At the same time, it also has the benefit of job creation and job advancement for mediators and arbitrators (including their pupils).

The pandemic has caused an unprecedented impact on Hong Kong's economy. The Government must take resolute and exceptional measures to prevent the situation from deteriorating. We have been closely monitoring the situation in the legal and dispute resolution sector to provide timely support. Let’s remain vigilant and be aware of as well as prepared for the changes that sweep across the globe.

July 12, 2020

The practice of private prosecution was a common practice in days immemorial before a public body that oversaw public prosecution was set up. This right of an ordinary citizen remains notwithstanding the establishment of public prosecution bodies in modern times. In the past 10 years, the number of private prosecutions brought to the attention of the Department of Justice (DoJ) is limited. The Secretary for Justice had intervened. Yet in recent times some have availed themselves of such right and it is pertinent that the procedures and principles are properly understood to avoid abuse of process, wasting of judicial resources and most importantly jeopardizing the administration of criminal justice.

There are apparently no express rules governing the court procedures applicable to private prosecutions. Some principles are laid down in the Prosecution Code as a guidance but they do not represent the full ambit of the law or the pertaining legal principles. At the moment, based on the cases, a private prosecution is instituted when a complainant submits evidence to the court for consideration on whether or not to issue a summons to the defendant. There are no set procedures on whether a hearing must be convened, whether the DoJ should be notified, allowed to participate as an observer or allowed to make representations. From the practice, it is observed that any oral hearing, if held, will be conducted ex-parte, that is, only the complainant is present.

However, a complainant is generally not entitled to obtain witness statements or other investigatory materials from the police. If a complainant intends to exercise the right to institute private prosecution, the complainant would be responsible for gathering evidence.

In considering whether or not to issue a summons, the magistrate has to consider whether the allegation is of an offence known to the law, and if so, whether on the face of it, the essential ingredients of the offence are present. In other words, the court has to decide if a prima facie case has been established by the evidence presented to it. By prima facie, one means generally that taking the evidence presented to the highest, whether a reasonable and properly directed jury will be able to convict.

After the institution of the proceedings and whatever procedures that are adopted by the magistrate, the court will decide if a summons will be issued to the defendant to state the matter of the complaint and to summon him to appear before the court on a particular day to answer the complaint or information. There is no requirement for the magistrate to give a written reason for the decision to issue a summons.

The decision of the magistrate is amenable to judicial review irrespective of the steps that would be taken by the Secretary for Justice.

Section 14(1) of the Magistrates Ordinance states that: A complainant or informant who is not acting or deemed to act on behalf of the Secretary for Justice may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates but the Secretary for Justice may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings and may within the time limited by section 104 for applying for a review intervene for the purpose of applying for or being made a party to any review.

Section 14(2) of the Ordinance stipulates that as from the date of any such intervention the Secretary for Justice shall be deemed to be a party to the proceedings or the review in lieu of such complainant or informant.

Once the magistrate has issued a summons, at any stage of the proceedings, the Secretary for Justice is entitled to intervene in the private prosecution to assume the conduct of those proceedings. The Secretary for Justice may prevent the prosecution from continuing by withdrawing the summons, declining to sign the charge sheet or indictment, or take over and continue the prosecution, or let the private prosecution continue. In short, the Secretary for Justice can intervene to withdraw the charge, to apply for a permanent stay of proceedings or to offer no evidence against the defendant.

The Secretary for Justice should consider a number of factors when deciding whether or not to take over a private prosecution and what steps to follow after such intervention. A number of factors by way of example have been set out in the Prosecution Code to guide the work of the Department of Justice. Important principles have been laid down by some precedent cases.

Similarly, the decision of the Secretary for Justice whether or not to take over may be judicially reviewable.

The right to institute a private prosecution is an important feature of the common law system. However, it might be open to abuse. Private prosecutions which are groundless or frivolous or brought out of improper motives or political considerations should not be condoned.

As the Department of Justice has the constitutional duty to control criminal prosecutions under Article 63 of the Basic Law, we have an obligation to intervene in and discontinue a private prosecution which is considered to have no reasonable prospect of conviction, be contrary to the public interest, be brought out of improper motives, or constitute an abuse of process, etc. Indeed, where proceedings would amount to an abuse of process, the Department of Justice should ask the court to order that those proceedings be stayed.

The abuse of such process is also pertinent when considered in this perspective. A private prosecutor brings a case on a prima facie standard, a summons was issued by the magistrate. The trial continues and the private prosecutor is not able to discharge the burden of proof to a standard of beyond reasonable doubt and the defendant is discharged. The defendant will not be able to be prosecuted again in light of the principle against double jeopardy. Hence speed in bringing forth a private prosecution is not always advantageous and indeed may result in extremely unfair result. It is exactly for these and other reasons that the Secretary for Justice has the right to intervene to ensure that justice is administered.

As a reminder, if a complainant institutes an unmeritorious private prosecution and fails, the complainant may be liable to pay costs to the defendant. If the prosecution is brought maliciously, the complainant may even face civil liability to pay compensation to the defendant. If the matter is taken to judicial review then issue of costs will arise too.

We are determined to promote fair, just and consistent decision-making at all stages of the prosecution process. Any wrong decision in prosecutions will inevitably damage the confidence of the community in the criminal justice system. Therefore, it is of utmost importance for the Department of Justice to strike a balance between the right of private prosecutions and shouldering our responsibility of avoiding unnecessary and unjustifiable prosecutions.

June 16, 2020

Pursuant to the authorisation set out in Article 6 of the Decision passed by the National People’s Congress (NPC) on May 28, the National Security Law is to be enacted by the NPCSC, and after consulting the Basic Law Committee and the Government of the HKSAR, it will be added to Annex III of the Basic Law to be promulgated by the HKSAR and applicable to the HKSAR. It will also be in Annex III and part of the Basic Law of the HKSAR.

The People’s Republic of China (PRC) has two legal systems, the civil law system and the common law system. It is impracticable and unreasonable to expect that everything in a national law, the National Security Law, will be exactly as what a statute in the HKSAR common law jurisdiction would be like. Yet of course, the legislation should be clear and understood in the HKSAR.

As I have stated in many occasions with various media, there are a number of commonalities between the civil and common law systems respectively in the Mainland and the HKSAR, such as retrospectivity, presumption of innocence, burden of proof and standard of proof, legal certainty etc. This point was similarly made with more details on PRC law, by the Deputy Director of the Hong Kong and Macao Affairs Office of the State Council, Mr Zhang Xiaoming, in his speech on June 8 in commemoration of the 30th anniversary of the promulgation of the Basic Law. His speech and that of the Vice-Chairperson of the HKSAR Basic Law Committee under the Standing Committee of the National People's Congress, Mr Zhang Yong, are available at https://webcast.info.gov.hk/revamp/eng/video/0000000826_mp4.html.

Discussions generated on sunset clause is also interesting. The NPCSC has the power to add or delete from the list of laws in Annex III after consulting the Basic Law Committee and the Government of the HKSAR, and as such there is indeed no need for what has been described as a “sunset clause”. To properly embark on such discussions, it may be useful to remember that the National Security Law to be enacted by the NPCSC is a national legislation providing for the legal framework and enforcement mechanism from a national level. In Article 3 of the Decision of the NPC, it also stated that the HKSAR should as soon as possible complete the legislation that has to be done for national security in accordance with the requirements of the Basic Law. Such legislation to be passed in the HKSAR will be dealing with national security from the perspective of the SAR and may well not be the complete ambit of national security that affects 1.4 billion people.

In summary, the Decision of the NPC and the enactment of the legislation by the NPCSC for inclusion in Annex III of the Basic Law to be promulgated by the HKSAR are premised on constitutional and legal grounds. The circumstances facing Hong Kong and indeed as more clearly evidenced by the uncalled for reactions of some countries really reinforce the need and urgency for the same. Finally, it was stated clearly in the Decision, “safeguarding national sovereignty, security and development interests, upholding and improving the ‘one country, two systems’ regime, maintaining the long-term prosperity and stability of Hong Kong, and safeguarding the legitimate rights and interests of Hong Kong residents.” Therefore, the legislation to be enacted for the HKSAR only aims to prevent, curb and sanction an extremely small minority of criminals who threaten national security, so as to safeguard the prosperity and stability of Hong Kong and the implementation of "one country, two systems".

June 14, 2020

The first question that one should ask is whether the NPC and its Standing Committee (NPCSC) have the power and authority to introduce law and other legal instrument in the People’s Republic of China (PRC). The answer is a clear “yes” because under Articles 57 and 58 of the Constitution of the PRC (PRC Constitution), the NPC is the highest organ of state power in the PRC, and the NPC and the NPCSC exercise the legislative power of the state to introduce laws and other legal instruments.

It has also been made clear that the Decision is to be made pursuant to Article 31, 62(2), (14) and (16) of the PRC Constitution and the relevant provisions of the Basic Law. Under Article 6 of the draft Decision, the NPC delegated the NPCSC the duty to make the national security law applicable to the HKSAR.

The second question is whether such power and authority covers national security. Again, the answer is a clear “yes” because there is not any doubt that national security is a matter of national interest that concerns the whole population of the PRC and falls squarely within the purview of the Central Authorities. National security is never part of Hong Kong’s autonomy. As such, the national security legislation to be enacted by the NPCSC is obviously within the ambit of “defence and foreign affairs as well as other matters outside the limits of the autonomy of the [HKSAR]” as under Article 18(3) of the Basic Law.

The third question is on the relationship between Article 18(3) and Article 23 of the Basic Law. As a start, it is essential to understand that pursuant to Article 12 of the Basic Law, Hong Kong is a local administrative region of the PRC that comes directly under the Central People’s Government. Under Article 23 of the Basic Law, the HKSAR is authorised to enact laws to prohibit specific acts relating to national security. Given the purpose and context of Article 23 as well as the ordinary meaning of the terms used, such authorisation clearly does not preclude the Central Authorities from introducing a national security legislation.

It is fundamental to recognise that the Central Authorities holds the ultimate responsibility for national security in all local administrative regions. It is trite that a delegation of power by the principal to the delegatee is not an abrogation or abdication of the responsibility and power of the principal. As such, any right minded person can conclude that the enactment of the national security law by the NPCSC and the addition of such law to Annex III of the Basic Law to be promulgated by the HKSAR is in compliance with Article 18(3) and is not in any way in conflict with Article 23 of the Basic Law.

As can be seen from the above, the draft Decision and the passing by the NPCSC of the national laws is in compliance with the “one country, two systems” principle as encapsulated in the PRC Constitution and the Basic Law.

Given that the details of the design of the national security legislation to be enacted by the NPCSC and introduced to Annex III of the Basic Law to be promulgated by the HKSAR are not yet known, now is not the time to make unwarranted speculations. Unfortunately, some have apparently and perhaps misguidedly tried to smear and vilify the draft Decision as well as the national security legislation to be enacted by the NPCSC as representing “the death of one country, two systems”. Such an assertion does not stand legal scrutiny. The legal process to be adopted by the NPC and NPCSC is enshrined in law, justified in logic and reasonable in the circumstances of the situation in the HKSAR.

As clearly stated in the draft Decision and the Explanatory Statement of the draft Decision, when making the Decision, the NPC will comply with the laws, the “one country, two systems” principle and also endeavour to safeguard the lawful rights and interests of people in Hong Kong. Indeed, the very fact that the draft Decision on the national security legislation to be submitted to the NPC is in compliance with the Basic Law. The Central Authorities and the HKSAR are conducting our internal affairs of our own state in accordance with our Constitution and the Basic Law, and importantly in full accord with the “one country, two systems” principle.

May 26, 2020

First, one must understand that the NPC is the highest organ of state power authority of the People’s Republic of China (PRC). Under the Constitution, Article 62 in particular, the NPC has the power to introduce laws and other legal instruments including making Decisions. As an example, the HKSAR was established under the Decision of the NPC on the Establishment of the HKSAR pursuant to Article 31 of the Constitution on 4 April 1990. As a matter of fact, the Basic Law was passed the same day as a national law by the NPC pursuant to Articles 31 and 62(14).

The draft Decision to be deliberated by the NPC and the Explanatory Statement of the draft Decision have been published. The Decision is to be made in accordance with Articles 31, 62(2), (14) and (16) and the relevant provisions of the Basic Law. Article 31 of the Constitution provides that “the state may establish special administrative regions when necessary” and “the systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People’s Congress”. Article 62(2), (14) and (16) provide that the National People’s Congress exercises the following functions and powers “to supervise the enforcement of the Constitution”, “to decide on the establishment of special administrative regions and the systems to be instituted there” and “to exercise such other functions and powers that the highest organ of state power should exercise”.

It is beyond doubt that the NPC has the power to make Decision relating to the HKSAR and in particular, as in the case here, to ensure that the Constitution is implemented. When making the Decision, the NPC will also comply with the laws and as clearly stated in the Explanatory Statement and the draft Decision the “one country two systems” principle is to be upheld and implemented. Based on the Constitution, the NPC can also delegate to its Standing Committee of the National People’s Congress (NPCSC) to make laws and that is exactly what the draft Decision paragraph 6 is referring to.

There are doubts as to whether the NPCSC can legislate national security laws for the HKSAR. Such doubt is totally unwarranted. National security is never part of HKSAR’s autonomy, and indeed never a matter that concerns only the HKSAR. National security affects 1.4 billion nationals and it is trite that it has to be and is a matter that is entirely within the purview of the Central Authorities. When the threats to territorial integrity, secession and subversion of a nation persists coupled with a lack of laws that addresses these, it is natural and indeed proper for the Central Authorities to take action and propose to the NPC to make a Decision and to introduce a national law applicable to the HKSAR. Such a national law is within the ambit of “defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region” set out in Article 18(3) of the Basic Law.

The four areas to be covered in this national law are secession, subversion, terrorist activities endangering national security and interference by foreign political forces. These are core national security matters of any state and that is why the NPC considers it necessary to make such Decision at a national level for a national law to be introduced into Annex III and to be promulgated by the HKSAR.

Paragraph 3 of the draft Decision also explicitly points out that it is the HKSAR’s constitutional responsibilities to safeguard national sovereignty, unity and territorial integrity; stresses that the HKSAR should as soon as possible complete the national security legislation stipulated in the Basic Law of the HKSAR.

Whilst the HKSAR is authorized to legislate national security laws, it does not preclude the Central Authorities from legislating at a national level for national security. Further as a matter of fact, the HKSAR simply has not been able to legislate at all for all these years.

Upholding national sovereignty is the duty of each and every national. When there is no country, there is no home. These are basic principles that any right minded person will agree. To blindly vilify laws relating to national security is totally irrational. It is high time we grapple and address the need to legislate to protect national security and as the HKSAR cannot do it, it is not surprising that the NPC takes action at the national level.

I hope the above explanation has provided some understanding of the legal basis for the two steps to be taken: the draft Decision to be passed by the NPC, and the enactment of a national law by NPCSC to be introduced to Annex III of the Basic Law to be promulgated by the HKSAR.

May 24, 2020

It is very troubling to see from the media reports that underage children or students are taking part in unlawful activities and even getting involved in violence. In so doing, they would not only put their own and others' safety at risk, but could also be arrested and prosecuted resulting in criminal records upon convictions. Their future in education and employment would inevitably be affected.

There are misleading suggestions that all young offenders would only be cautioned under the Police Superintendent's Discretion Scheme without criminal records. One must understand that the police, in deliberating whether to administer a caution, have to take into account a number of factors, such as whether the juvenile offender was under the age of 18 at the time of committing the offence; the seriousness and nature of the offence; whether the offender voluntarily and unequivocally admits the offence; whether the offender is remorseful etc. Therefore, the scheme does not apply to all young offenders indiscriminately.

Similarly, bind over orders are only appropriate for first-time offenders involving minor offences and they have to be agreed by the courts. Under the bind over arrangement, offenders are required to admit the wrongdoings and are admonished in an open court. They also need to give an undertaking to the court to be of good behaviour. Imprisonment might be imposed for breaching the undertaking. Before agreeing to such a procedure on specified conditions, the prosecution has to give considerations to various factors including the age of the offender, criminal record, attitude of the offender such as remorsefulness, etc.

There are also comments that prosecutions against young offenders should be withdrawn on the basis of public interest. I have to stress again that the Department of Justice (DoJ) must strictly make our prosecutorial decisions in accordance with admissible evidence, applicable laws and the Prosecution Code. The non-exhaustive list of considerations to be addressed when making assessment in considering public interest, including those applicable to juvenile offenders, were set out in 5.9 and 15.4 of the Prosecution Code, which include the nature of the offence, the seriousness of the offence, the criminal history of the suspect, remorsefulness of the suspect and the sentencing options available to the court, etc. Prosecutors should follow the above principles in making their decisions and must not withdraw charges unjustifiably under the pretext of public interest.

In considering the above arrangements, the DoJ has to carefully examine the circumstances of each case in an objective manner and strictly in accordance with the established principles. A decision cannot be made solely based on the age of the offenders. Their legal representatives are not only duty bound to inform them of their rights but also have an obligation to remind them of the legal consequences and the availability and considerations in relation to the above arrangements.

As observed by Lord Diplock, "[t]he acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it". Every member of the public must be aware that one has to bear the legal responsibility resulting from law-breaking behaviour. I sincerely hope that every one, in particular the youngsters, should exercise their independent thinking and judgement, and, more importantly, stay away from violence and not commit mistakes that might ruin their lives in the future.

May 09, 2020

Article 63 of the Basic Law provides that the DoJ of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference. This prosecutorial independence ought to be a feature in any society that cherishes the rule of law, and therefore attempts made by jurisdictions requesting such decisions to be made one way or another or even to request that they be varied is a blatant defiance of rule of law.

The DoJ acts independently without political, improper or undue influence including those from public opinions and certainly not from overseas politicians who made these requests possibly not based on evidence or law but on political motives.

In cases in which legal proceedings are on-going, we will not comment and neither should others as it may bring about the undesirable effect of a trial by the public. Statements made requesting the DOJ to drop all the charges or uttered with a view to affecting the DOJ’s role in controlling criminal prosecutions are futile. It is plainly wrong to label our prosecutions as “politicized”. On the contrary, no one, be they tycoons or politicians, will be above the law or be treated differently simply because they have a certain status or are pursuing certain beliefs or goals.

When law enforcement agencies have completed their investigation, they would seek legal advice from the DoJ. Our prosecutors would carefully consider the investigation reports and relevant materials submitted. A prosecution would only be commenced if the prosecutor is satisfied that there is sufficient admissible evidence to support a reasonable prospect of conviction.

The well-established procedures of our criminal justice system include the independent investigations by law enforcement agencies, the independent prosecutorial decisions based on objective assessment of evidence, applicable laws and in accordance with the Prosecution Code, and finally open trials by our independent judiciary. If we are to accede or be seen to yield to unreasonable demands to drop charges irresponsibly, we would not only be unfair and unprofessional but would also act in violation of the spirit of the rule of law.

I have explained the DoJ’s prosecution procedure on various occasions and stressed that our prosecutors are expected to apply the highest of professional standards in handling all criminal cases impartially and without fear or favour. They must not be influenced by political consideration. Cases should not be handled any differently irrespective of one’s own political beliefs or opinions.

The HKSAR Government always respects and protects human rights and freedoms. However, these rights are not absolute. As pointed out by the Chief Justice of the Court of Final Appeal at the Ceremonial Opening of the Legal Year 2020, “it is important to understand that the enjoyment of these rights has limits so as not to affect adversely to an unacceptable level the enjoyment by other members of their community of their rights and liberties.” There are clear limits in the law to the exercise of these rights. When law is broken, action will be taken in accordance with the criminal justice system.

The rule of law is a core value in Hong Kong. We have to stand united in upholding our independent criminal justice system especially when it is under attack by any unfair and unfounded allegation made with a view to discrediting or undermining it. Any attempt to do so would only be attractive to those unfamiliar with our independent legal and judicial systems. We are obliged to continue to explain and ensure that their absence of knowledge would not override facts. We will continue to disseminate proper and accurate information and help clear any misunderstandings in the local and overseas communities.

April 26, 2020

In anticipation of an upsurge of disputes arising from or relating to COVID-19, the Scheme aims to provide speedy and cost-effective means to resolve such disputes, especially for those involving micro, small and medium-sized enterprises (MSMEs) that may be adversely affected or hard hit by the pandemic. The Scheme will engage eBRAM to provide ODR services to the general public and businesses, in particular MSMEs, involved in low value disputes.

The Scheme plans to cover COVID-19 related disputes with the claim amount for each case to be capped at $500,000. Either one of the parties (claimant or respondent) must be a Hong Kong resident or company and they will only be required to each pay $200 as registration fees. Under the Scheme, the parties are required to enter into a dispute resolution agreement to record their consent.

The process to be adopted is a multi-tiered dispute resolution mechanism where the parties will first attempt to negotiate their disputes, followed by mediation and if that does not result in settlement, then subsequently to arbitration for a final and binding award. This is in line with the “Mediate First” policy that we have been advocating under our “Mediate First” Pledge Programmes.

The Scheme aims to offer a fast and effective means to resolve disputes among parties. Each tier of dispute resolution will be conducted within a limited time. The tiers are devised with a view to avoiding disputes and differences from being entrenched. If the disputes can be resolved successfully and amicably through negotiation or mediation, we hope it will help build and reinforce a harmonious society and enable the parties to preserve their long term business relationship.

We also hope the Scheme will have the benefit of job creation and job advancement for mediators and arbitrators (including their pupils). Parties are at liberty to appoint the third party neutral of their choice and if no agreement is reached, there will be a mechanism for appointment. The third party neutrals and the parties or their representatives can still handle cases under the social distancing measures online and indeed to practice on the handling of cases online. We would like the Scheme to be launched in June if funding is provided in April.

It is a global trend to develop and use ODR to provide reliable and efficient platform to facilitate alternative dispute resolution. The Scheme is in line with the development under Asia-Pacific Economic Cooperation’s Collaborative Framework on ODR (APEC Framework), with MSMEs as the major beneficiary. The mechanism of adopting negotiation and mediation in the first stage under the APEC Framework is also to prevent entrenched views on the conflicts, thereby helping to create harmony in society.

Some forms of alternative dispute resolution, such as mediation, are a more cost-effective way to resolve disputes. The costs of mediation are almost always lower than the disputed amounts, making it an economical way to resolve disputes. Mediation can save time too. Some cases may be resolved following just one day of mediation.

LawTech has greatly helped the development of dispute resolution services. The establishment of a safe, reliable and credible platform to provide enterprises with convenient and cost-effective online dispute resolution will become a new trend.

It is one of the major long-term policy objectives of the Department of Justice (DoJ) in recent years to enhance and promote Hong Kong’s status as an international legal hub for deal-making and dispute resolution. A further promotion of the use of ODR will help consolidate Hong Kong's position as an international business and financial centre.

The social media accounts of DoJ’s IDAR Office has been introducing the procedure, characteristics and benefits of mediation and arbitration. You may wish to visit the dedicated pages of IDAR Office to keep abreast of the dispute resolution services.

In addition to the relief measures announced by the Government, the DoJ has also taken the initiative to speed up payment of fees to counsel. Counsel engaged by the DoJ could submit their interim fee notes together with the interim case reports after certain work has been completed. Each case will be considered individually on a case-by-case basis and interim payments could be made. I have enquired and am also glad to learn from the Legal Aid Department and the Duty Lawyer Service that they made similar arrangements.

We are confident that Hong Kong can weather the storm with our fundamental strengths and resilience. We also trust that we would overcome this unprecedented challenge by standing in solidarity.

April 13, 2020

On Wednesday, the Government announced another package of measures to support individuals and businesses affected by COVID-19. Two of the measures are relevant to the legal sector: the establishment of LawTech Fund and the COVID-19 Online Dispute Resolution (ODR) Scheme. Today, I would like to share with you the arrangement of the LawTech Fund.

The Government always attaches great importance to LawTech. In her 2018 Policy Address, the Chief Executive supported the development of an online platform by non-government organisations to facilitate the provision of efficient and cost-effective online dispute resolution services in Hong Kong. The Government would allocate funding for the development of this project.

At the Ceremonial Opening of the Legal Year 2019, I emphasized the importance of making use of technology in providing legal services, citing the United Nations General Assembly in 2016 in observing that online dispute resolution (ODR) “can assist the parties in resolving the dispute in a simple, fast, flexible, and secure manner, without the need for physical presence at a meeting or hearing". The Asia-Pacific Economic Cooperation had responded to the call and embarked on a project to establish an ODR framework with micro, small and medium-sized enterprises as major beneficiaries.

Almost 18 per cent of the annual caseload of the courts at all levels have been affected in the first two months of the General Adjourned Period since January 29. The Judiciary has earlier started using video-conferencing facilities for remote hearings on suitable civil cases at the High Court. The media reported the first hearing conducted through video-conferencing, quoting the legal representatives of both parties being supportive of the Judiciary’s new measures in view of the low cost and smooth operation.

Given the severe impact brought by COVID-19, the Judiciary has been exploring the use of various technological means in conducting different types of hearings to address the growing backlog of cases caused by the postponement of hearings. The legal sector should also take this opportunity to review the wider use of LawTech and enhance their technological capability. The Government introduced the LawTech Fund, which aims to assist some small and medium size law firms/ barristers’ chambers in procuring and upgrading information technology systems (such as video-conferencing facilities) and attending LawTech training courses. This will be conducive to the promotion of use of technologies in the provision of legal services.

Under the scheme, law firms and chambers with not more than five practicing lawyers are eligible for application. Each firm/chamber will be eligible for a reimbursable amount of up to $50,000. Application for the Fund will be jointly administered by the Law Society of Hong Kong and the Hong Kong Bar Association. The details will be announced soon and the Fund will be opened for application next month.

Other measures announced by the Government include: Enhancement of SME Financing Guarantee Scheme (http://www.hkmc.com.hk/eng/our_business/sme_financing_guarantee_scheme.html), Employment Support Scheme under which the Government will provide wage subsidy to eligible employers to retain employees (details will be available soon), as well as the creation of some time-limited jobs by the Department of Justice.

Government measures alone, however, would not be adequate. We must all stand united in solidarity to fight the virus and support Hong Kong.

April 11, 2020

Though the outbreak of COVID-19 has changed our travel patterns and presented many challenges, advance in modern technology has helped us to address them. For the first time in the Moot’s history, the mooting competition was conducted completely online with the support of eBRAM. The platform supported by eBRAM accommodated 71 teams from 21 jurisdictions and about 250 arbitrators from 52 jurisdictions to take part in the Moot which started on March 22. This exemplifies the importance of technological developments in the legal field.

The audience, with the latest lawtech support by eBRAM, watched the online lively and intensive oral arguments with participants of the finalists showing considerable flair and aptitude in trying their best in presenting their case to an international panel of distinguished arbitrators. The Chinese University of Hong Kong won the competition after rounds of rigorous and remarkable oral submissions before the distinguished panel of arbitrators.

The Government of Hong Kong has always been supportive of the development of lawtech spearheaded by, amongst others, eBRAM, which is expected to be launched this year to resolve cross-border disputes online. If funding is approved by the Finance Committee on time, eBRAM would be able to provide an efficient, cost-effective, and safe online platform for deal-making and resolution of cross-border commercial and investment disputes. We understand that eBRAM also plans to develop an online dispute resolution platform to support cross border business-to-business transactions in the APEC Region.

We would continue to offer our support to the VEM as part of our legal education campaign. However, the VEM would not have been held smoothly without the technical support provided by eBRAM and also the tenacity and determination displayed by the Vis East Moot Foundation. The successful conclusion of the Moot proved that Hong Kong has the capability of developing lawtech.

Changes are inevitable, including technological changes. The pandemic outbreak posed new challenges to Hong Kong but it also provides an opportunity for us to explore lawtech in the provision of legal services. We all should join hands to make best use of the technologies to develop ODR to assist all parties in resolving disputes in an efficient, effective and fair manner with a view to bringing rule of law and justice for all.

March 31, 2020

To echo the Government’s move to stay united, the DoJ Staff Club put forth a cash contribution campaign to buy anti-epidemic supplies for donation. The Staff Club volunteers acquired face masks and alcohol-based handrub in different ways, some were purchased through online shopping and some were bought at medicine stores. Last Sunday, I joined the volunteers in packing the anti-epidemic supplies, supermarket cash coupons and leaflets with health information. Our volunteers took the “care packs” in person to a non-government organisation a few days ago for passing to the elderly and low income group.

The Staff Club has been participating in volunteer services now and then. Given the overwhelming response this time, I am glad to know that more volunteer activities would be organised in future. I would definitely be joining as many as I could. Through offering our effort to help those in need, we hope to show our care for the less privileged in society, and contribute to building a caring and inclusive community.

The public services of DoJ, like all other government departments, have gradually resumed back to normal. I inspected the Justice Place on Monday to learn more about the infection control measures in place, such as body temperature checking arrangement, provision of hand sanitizers and sanitizing mats at building entrances.

We must remain vigilant as the epidemic is still severe, and more importantly, we also need to stand in solidarity in the fight against the disease.

March 05, 2020

The Department of Justice has always been actively striving for the presence of international dispute resolution bodies in Hong Kong in order to meet the upsurge in demand for legal and dispute resolution services arising from the Belt and Road Initiative and the Greater Bay Area Plan. Their presence in Hong Kong would also enhance our status as a leading centre for international legal and dispute resolution services. With the support of the Central People’s Government, we are now exploring the possibility for the Asian-African Legal Consultative Organization (AALCO) to establish a regional centre for international commercial arbitration in Hong Kong.

Last year, the inter-sessional meetings of the Judgments Project of the Hague Conference on Private International Law were successfully concluded in Hong Kong. This invaluable experience has reinforced our determination in looking for decision-making meetings of international and intergovernmental organisations to be held in Hong Kong, including hosting the 59th Annual Session of AALCO and an intersessional meeting of UNCITRAL’s Working Group III this year. High ranking government officials and legal experts from member states would take part in these meetings to discuss matters such as maritime law and cyber space law.

In addition, we are committed to strengthening Hong Kong’s status as a regional capacity building centre which seeks to enhance legal infrastructure in the neighbouring regions and facilitate cross-border mobility and business activities. For instance, the Department of Justice organised the Investment Law and Investor-State Mediator Training Course for two consecutive years since 2018. World-renowned trainers were invited to share with the participants their experience in international investment law and investor-state mediation. We would be stepping up our efforts in organising capacity building courses in dispute resolution.

At the same time, the Department of Justice has reached an agreement with the Hague Academy of International Law, one of the world’s leading academic institutes on international law, to support them in organising law courses in Hong Kong regularly in collaboration with the Asian Academy of International Law from this year. We anticipate this cooperation would provide Hong Kong and the neighbouring regions with high quality training for legal professionals, which helps further raise our international profile.

Looking ahead, colleagues in the Department of Justice would keep pursuing cooperation or partnership agreements with other jurisdictions and international organisations and host important events in Hong Kong, with a view to raising the international profile of Hong Kong in deal-making and dispute resolution through overseas capacity building and promotional activities.

March 01, 2020

The Department of Health would gather evidence and conduct investigations into any contravention of quarantine orders before referring the cases to the Department of Justice for making prosecutorial decisions. Our prosecutors would make such decisions based on available evidence, applicable laws and the Prosecution Code. A prosecution would be commenced if there is sufficient admissible evidence for a reasonable prospect of conviction.

Minimising social contact in the community is another key measure to curb the spread of the virus. Hence, we only arranged a certain number of colleagues, including government counsel, paralegals and supporting staff, to return to office to handle urgent matters and provide basic public services. The reception counters of the Prosecutions Division and the Civil Division remain open over the past few weeks to allow members of the public and the legal profession to serve court documents. The shroff office is also partly open for payment service. Details of the service hours are available from our press release (https://www.doj.gov.hk/eng/public/pr.html).

There are colleagues from different divisions returning to office to handle emergency works including attending urgent court hearings, processing court documents and attending urgent meetings. We have arranged sufficient manpower to provide cleansing service at office to safeguard the health of colleagues. For others, who are given laptops and electronic communication devices, are advised to work at home. I am heartened to learn that the Department of Justice is largely functioning well.

The Judiciary announced that court hearings would be generally adjourned in view of public health considerations but the courts would continue to handle urgent and essential hearings. Colleagues from the Department of Justice have been deployed to attend such hearings to deal with cases including bail applications and sentencing.

I am grateful to all my colleagues for remaining steadfast at their posts at this difficult time. I also urge those who are required to stay at home or other dwelling place for a 14-day quarantine to abide by the law and strictly comply with the quarantine orders. Violation of orders causes spread of the disease and leads to criminal prosecution. Last but not the least, I appeal to all members of the public to join hands with the Government to do their best to prevent and curb the spread of COVID-19 by maintaining good personal hygiene, thereby ending the epidemic as soon as possible.

February 17, 2020

Judicial independence is the key building block to our society. These rampant acts and statements, and for that matter, any views expressed in society or media, would not in any way usurp the decision making process in court proceedings, nor will they affect our judicial independence as our judges will continue to decide cases based only on evidence and law, setting out how they have arrived at such decisions in their judgements, which are available to the general public. They have taken a judicial oath to administer justice without fear or favour and it is their duty to so do.

Judges in Hong Kong are appointed upon the recommendation by a statutory committee comprising nine members including the Chief Justice of the Court of Final Appeal, the Secretary for Justice, two judges from the Judiciary, one barrister and one solicitor, as well as three eminent and respected members of the society not connected with the practice of law. Our judges would not be subjected to any political vetting. The only criteria upon which they are considered before appointment is the judicial and professional quality that contributes to our renowned judicial independence.

Judges enjoy security of tenure and immunity. Upon the appointment, district court judges and above are precluded from returning to practice in Hong Kong as a barrister or a solicitor. This “non-revolving door” system has worked well in preventing perceived potential conflict of interest and enhance the independence of our judiciary.

Our judges manifest the highest professional and judicial quality as well as impartiality through the reasoned judgements that they deliver. Hong Kong cases are often cited in overseas jurisprudence evidencing the confidence and respect of the global legal community in Hong Kong’s judicial and legal systems.

The institutional framework described above, the guarantee of judicial independence explicitly set out in the Basic Law and the quality of our judgements contribute to the much respected judiciary and rule of law in Hong Kong. To top it all is that eminent and highly respected judges from apex court of other common law jurisdictions sit on our Court of Final Appeal as Non-Permanent Judges. They sit on all types of cases, from commercial, criminal to constitutional and have witnessed Hong Kong’s system in administering justice.

One of our Non-Permanent Judges of the Court of Final Appeal, the Right Honourable the Lord Neuberger of Abbotsbury (former President of the Supreme Court of England and Wales who presided the Brexit case), pointed out in a seminar in 2017 that his own direct experience as an Non-Permanent Judge since 2010 proved that the Permanent Judges of the Court of Final Appeal are as institutionally independent and impartial. He also said that he has every reason to believe that this is equally true of the judges in the other courts of Hong Kong. He even said he would not be sitting in the Court of Final Appeal if he had any serious concerns about judicial independence or judicial impartiality in Hong Kong.

More recently, the Right Honourable Beverley McLachlin, PC, another Non-Permanent Judge of the Court of Final Appeal and also a retired chief justice of Canada, described in an interview (https://nationalpost.com/news/courts-immune-to-pressure-from-china-ex-canadian-chief-justice-says-after-hong-kong-judging-stint) that Hong Kong’s law is very rigorously applied, the judges are very high calibre, it is a very high level of judging, and the court is independent.

These remarks from eminent and respected judges from around the world speak volume about Hong Kong. One cannot help but be perplexed as to why some chose to try to undermine these core values baselessly and insidiously. It behoves on each of us, in particular the legal sector including the two branches of the legal profession, to protect our judicial independence that underpins Hong Kong’s success and encourage others to join hands through our own sphere of influence. It is high time we bring back the Hong Kong we are familiar with.

January 5, 2020

The violence and vandalism in recent months sparked a crisis of confidence of our rule of law. The so-called “justice lawbreaking” or “civil disobedience” is never justified under the law. I urge all of you not to engage in any illegal activities.

The Court of Final Appeal in its judgment (FACC8-10/2017) pointed out that: (1) unlawful assemblies involving violence, even a relatively low degree, will not be condoned and may justifiably attract sentences of immediate imprisonment in the future; and (2) little weight will be given to the mitigation that the offending act was committed in the exercise of constitutional rights or acts of civil disobedience because the fact of a conviction will necessarily mean the offender has crossed the line separating the lawful exercise of his constitutional rights from unlawful activity subject to sanctions and constraints.

There are suggestions that deliberate lawbreaking might be considered to achieve objectives, however, this would bring a wrong concept of the rule of law. The escalated violence and vandalism in the last few months have also undermined the perception of the rule of law among the public. My colleagues and I would promote and publicise the correct concept of the rule of law to the citizens through different channels. In analysing the current situation, I hope that we all could remain reasonable and objective by keeping an open mind, being informed and considering all relevant facts before coming to a conclusion.

Our rule of law has been highly regarded, and such an achievement was not easy to come by. We should all join hands to cherish and safeguard our rule of law. Abiding by the law is one of the many obligations that ought to be observed by the public. Law exists in practice but it should not only be practised by lawyers, judges and governments. More importantly, the rule of law should be observed and respected by the community as a whole. The Government would continue to be strongly committed to upholding the rule of law.

December 22, 2019

剛過去的幾個月，大家都目睹在香港發生非常嚴重的暴力破壞行為，雖然現時局勢似是有所緩和，但上周日晚上，有人在終審法院和高等法院外縱火及破壞，而警方最近亦搜獲真槍和爆炸品等，情況仍然令人十分擔憂。如果持續這樣，不只影響國際社會對香港的印象，更會衝擊我們的法治。

由六月起已經有數千人被捕，他們大多涉及暴動、非法集結、藏有攻擊性武器、襲警及刑事毀壞等罪名。部分案件的刑事司法程序已展開，包括調查、檢控、辯護、審裁和懲處，分別由警方、律政司和司法機構獨立處理。

警方負責對案件進行調查，如有合理懷疑，便有權作出拘捕。警方亦會在有需要時向律政司徵詢法律意見。而律政司會就案件證據和適用法律進行客觀和專業分析，並按《檢控守則》獨立地決定是否提出檢控，若有充分可被法庭接納的證據，令案件有合理機會達致定罪，律政司才會提出起訴。

當案件進入司法程序後，法庭通常會先處理保釋或押後聆訊的申請，法庭會考慮控辯雙方的立場和論述以及呈堂的所有資料等作出相關決定。

當案件進入正式審訊時，法庭會審視相關法律、證據、聽取控辯雙方陳辭，只會在毫無合理疑點的情況下才會裁定被告罪成，之後再判刑。《基本法》保障了香港的司法獨立，法庭按法律和可接納的證據作出裁決，司法人員亦會陳述裁決理據，或許有人會對結果不滿，但絕不應該肆意抨擊司法人員或破壞法院。

刑事檢控科內一直有一隊專門負責涉及公眾活動案件的同事，所以當這些案件轉交予律政司時，都會先由這個團隊處理。如果案件數量非常多，我們會安排其他有相關經驗的同事幫忙。當然，除了公眾活動的案件外，我們還需要處理其他性質的案件，若然律政司內人手真的不足時，我們還可以按既定機制外聘一些私人執業的律師和大律師來協助，務求可以適時處理相關案件。

律政司的檢控人員作為「秉行公義者」，會繼續無私和獨立地工作，並以最高的專業標準處理刑事案件，過去一直如此，未來亦會繼續按這個準則行事，公正不阿、有效快捷地執行檢控工作，用行動來證明檢控人員一直以專業、無私、獨立的態度，積極跟進每一宗由警方轉介給律政司的案件。

現時政府的首要工作就是讓社會回復安寧，我作為政府團隊的一份子，會繼續緊守崗位，與律政司的同事把工作做好，一同捍衛法治。

December 15, 2019

It is utmost important to take into account the views from the youth when we are thinking about how to ride out the storm. I explained to them the Government’s position in the meetings. Some of them shared a similar view with the Government but some took a different stance. I appreciated their thoughts which I would explore further with my colleagues. Although it is unlikely that a single meeting will give to an instant solution, I think it does provide a basis for the Government to formulate policies in future in a bid to finding a way out.

I also took the opportunity to give them a brief introduction on our initiatives in this year’s policy address. The initiatives under the purview of the Department of Justice were indeed submitted to the Chief Executive for consideration after we had consulted the legal sector. This reflected that we attached great importance to the suggestions made by different sectors in the community. I wish that those from the legal sector can frankly let me know their views when we have the chance to meet in future. I will do my best to put any feasible suggestions into practice.

In the policy address, we plan to provide support for our legal talents to participate in international legal bodies such as the Hague Conference on Private International Law and UNCITRAL. We came up with this idea after hearing from the legal sector that our legal professionals should be encouraged to showcase our strengths in the legal service to the rest of the world. We will support them to take up important positions in renowned legal organisations. While they can experience for themselves different legal systems, I also wish that they can become Hong Kong’s ambassadors to promote our legal systems and competitive edges.

Another new initiative, “Vision 2030 for Rule of Law” is also in the pipeline. As a long term commitment, we aim to promote and reinforce the rule of law through academic and professional exchanges, research and capacity building. We have taken into account the views that more publicity has to be arranged to demonstrate the importance of the rule of law.

The Pilot Professional Exchange Programme mentioned in the policy address has been formally rolled out. We invite qualified lawyers to participate in a short attachment to the DoJ to facilitate exchanges of knowledge and experience with government counsel. This would help us keep abreast of developments in the legal industry. Reference was made to a proposal from a legal body when we formulated this programme. At the meetings with the young lawyers, I also encouraged them to take part in this exchange. More details can be found on the DoJ’s website: https://www.doj.gov.hk/en/miscellaneous/pep.html.

I am enthusiastic in continuing to meet with people from different sectors of the legal profession. While some may be skeptical about the effectiveness of having dialogues, I think it would be much more difficult in reaching a consensus in the absence of basic communication. The chaos has been going on for four months. I hope that violence could be stopped. I also look forward to engaging with the public in constructive dialogues to break the impasse.

October 28, 2019

Prohibiting persons from using face covering would facilitate police investigation and administration of justice and would as well deter them from acting in an unlawful manner on the basis that they may act with impunity by concealing their identity. The new regulation only prohibits people from using any face covering to prevent identification at unlawful assemblies, unauthorised assemblies, public meetings or public processions in respect of which a letter of no objection has been issued. Police officers are also empowered to require a person to remove facial covering in a public place to verify his identity.

In devising the new regulation, the Government has given due consideration to the human rights guarantees in the Basic Law and the Hong Kong Bill of Rights Ordinance, including the rights on the freedom of expression, peaceful assembly and privacy. However, these rights are not absolute, and may be subject to restrictions that satisfy the proportionality test including whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual.

This measure would not deprive the right to freedom of expression and peaceful assembly as people are still free to participate in lawful and peaceful public order events without face covering. If a member of the public in a public place is asked by police officers to remove the face covering to verify his identity, he may wear it again after the verification process is completed. Interference with a person’s rights is minimal, and in any event proportionate to the legitimate aim of protecting public safety and public order.

Other than the specified circumstances set out in the new regulation, people are generally free to wear face masks and the impact on their daily lives is limited.

The new regulation, which is a piece of subsidiary legislation, is made pursuant to the Emergency Regulations Ordinance and has to be laid on the table of the Legislative Council which may by resolution amend the regulation. Hence, there is no issue of the Legislative Council being circumvented.

The protests and confrontations have continued for almost four months. We hope that the new measure could help curb the spread of violence and restore social order. We also urge the understanding and support of the public in our work.

October 13, 2019

There are different comments and views regarding the time required for making prosecutorial decisions. The DoJ must make an objective and professional assessment of the available evidence and applicable law, and act in accordance with the Prosecution Code, irrespective of any political beliefs or background of the persons involved. We have all along been discharging prosecutorial duties fairly and without prejudice or favour.

A prosecution would only be commenced if there is a reasonable prospect of conviction. If the defendant pleads guilty to the charge, the court would convict the defendant upon his own plea and sentence him in due course. The judicial process in such cases would require relatively a shorter period of time. There are other situations that the court, before and during the trial, may have to decide whether or not to grant bail based on the relevant evidence, the circumstances of the case, the background, behaviour, demeanour and conduct of the defendant, the nature and seriousness of the offence, and history of previous admissions to bail, etc. The defendant, having been released on bail, would have to appear in court for trial. The trial might involve testimony and examination of witnesses, hence the judicial process would take longer.

It has come to my attention that there were some unfair comments on the Judiciary and refusal to comply with injunction orders granted by the court. This would severely undermine our rule of law. Our courts administer justice in full accordance with the law and admissible evidence. Judgments set out the reasons by which the decisions were reached. Some may not like the outcome but it does not mean that the independence of the Judiciary is in anyway compromised. As the Secretary for Justice, I am obliged to ensure that the independence of our Judiciary, as enshrined in the Basic Law, is respected and not arbitrarily attacked or criticised. The community should not make any arbitrary or unfair criticisms which seek to undermine the integrity or impartiality of the Judiciary.

Any law-breaking behaviour, arbitrary and unfair criticisms against prosecutorial decisions made or attack on our Judiciary would undermine our rule of law. Law should not only be practised by judges, legal professionals or the government but should be observed and respected by the community as a whole. I urge that every one of us should respect the rule of law and safeguard this core value cherished by our society.

September 22, 2019

With the support of the Central Government, Hainan has been working on building a free trade port. Last month, the Department of Justice and our counterparts in Hainan successfully arranged the Hainan International Arbitration Court, HK45 and the International Youth Legal Exchange Federation for organising a symposium on the opening up and the rule of law of Hainan. A group of young lawyers from Hong Kong was invited.

On their return from Hainan, these young lawyers told me that they learnt the latest development of Hainan at the symposium where they also shared their experience in legal and dispute resolution service. The next day, the group attended a talk by the President of National Institute for South China Seas Studies, Dr Wu Shicun, on the prevailing challenges.

Last Saturday, I signed a framework arrangement with the President of the High People's Court of Guangdong Province, Mr Gong Jiali, on the exchange and mutual learning in legal aspects between Hong Kong and Guangdong in Shenzhen which will provide a platform for future exchange and mutual learning.

A two-day seminar was then jointly organised by the Department of Justice, the High People's Court of Guangdong Province and the Shenzhen Intermediate People's Court under the above arrangement at the weekend. On Sunday, some 30 members of legal sector from Hong Kong joined the programme with Mainland lawyers and judges to study the contract law between the Mainland and Hong Kong. The speakers explained the difference between common law and civil law in the interpretation of contractual arrangements. This enhanced the mutual understanding of the two legal systems with each other.

The Inclusive Dispute Avoidance and Resolution Office, working directly under my steer, was established in January with an aim to enhance our capacity building to raise the international profile of Hong Kong in deal making and dispute resolution. I look forward to creating more opportunities on exchanges for legal practitioners between Hong Kong and other jurisdictions, thereby facilitating the export of our legal services and also conveying our strength of the rule of law.

September 14, 2019

Since July, I met with two legal professional bodies and also legal practitioners to gauge their views on various issues. Last Friday, I attended a seminar organised by the Legal Affairs Steering Committee of the Hong Kong Chinese Enterprises Association. The seminar, which was held in response to the appeal by the Chief Executive to start dialogue platforms, was joined by over 140 legal professionals who offered insights to the recent problems in Hong Kong.

At the seminar, I gave a very short introduction at the beginning to leave more time to listen to the opinions expressed by the participants. The discussion included the work of Independent Police Complaints Council, legal aid scheme, the impact on the business environment and provision of legal services, the development of small and medium sized law firms and young legal practitioners. While some shared similar views with the government, some held differently.

I also shared my views on resolving disputes through mediation with the participants. A mediator, in the process of mediation, has to remain neutral and listen to the views as well as grievances from all parties. A consensus can be reached only after their grievance is voiced out. Over the years, the technique of mediation has helped resolve a number of disputes such as the agreement on the minimum wage in 2010. Also, the Financial Dispute Resolution Centre Limited was established in 2011 to handle disputes through a “mediation first, arbitration next” approach after the outbreak of the minibonds incident.

Experience from mediation showed that narrowing differences is essential in reaching a consensus. There are still diverse views in the society and some people are not willing to make any compromise. But I believe that we all love Hong Kong. With this in mind, we can find a way to reconcile our differences through a constructive dialogue and move forward together.

September 7, 2019

Many of you may already be familiar with Hong Kong's advantages in arbitration services. As we are one of the busiest ports in the world, maritime legal services have become an integral part of Hong Kong. We have a broad pool of legal practitioners to provide high-end maritime law and arbitration services to shippers, ship owners and commodities owners in aspects such as ship financing, ship broking, ship building and maritime insurance. We are striving to develop our maritime arbitration.

The Hong Kong Maritime Arbitration Group is exploring ways to update arbitration rules and small claims procedures. Its work is close to completion. With these measures, I hope that more Mainland shipping enterprises would choose Hong Kong as an arbitration venue.

Separately, we spare no effort in promoting the “Mediate First” Pledge event, a brand which was built up by the Department of Justice, outside Hong Kong. The first inaugural event was held in Shanghai. Around 170 participants from different enterprises as well as the legal and mediation sectors attended the event, among which approximately 80 enterprises or individuals made the “Mediate First” Pledge and agreed to first explore the use of mediation when disputes arise. We will continue to introduce this event to other places and let more overseas enterprises know about it in order to further enhance the development of mediation.

In fact, mediation by a neutral mediator could be a feasible means to break the current stalemate in the society. Although an immediate resolution might not be possible, the process of mediation provides a communication platform which enables us to narrow our differences or review our circumstances, thereby paving the way for further negotiation with a view to reaching an ultimate settlement. "Treasure Hong Kong, our home".

August 31, 2019

Every year, the Colloquium attracts a good number of audience from different backgrounds and there was no exception this year. About 40 delegates from 30 countries, who joined the Training Session of China-AALCO Exchange and Research Programme on International Law, attended the Colloquium. Some of them are government lawyers and some are diplomats. The training programme was conducted both in Beijing and Hong Kong.

In Hong Kong, they were given an opportunity to feel for themselves the full and successful implementation of “one country, two systems”, and to gain a better understanding of the importance of the rule of law. Exchange sessions were arranged where experts shared experience of international law in practice. At the same time, the delegates were able to understand Hong Kong’s legal system and thereby encouraged to use our legal and dispute resolution services.

This year’s Colloquium focused on the uncertainties brought by the current trade dispute and political issues in the international arena. The speakers analysed the underlying causes and examined the foundation of hope for the future, offering insights to the audience.

Addressing the Colloquium, the Chief Executive pointed out that Hong Kong embraces an independent and impartial judicial system with a broad pool of legal talent. She encouraged the sector to grasp the opportunities under the Greater Bay Area Plan and Belt and Road Initiative by further promoting Hong Kong’s legal services.

In my speech, I mentioned that the arrangement on interim measures in aid of arbitral proceedings could prevent the other party from destroying the evidence or dissipating their assets so as to ensure that arbitral proceedings could be carried out effectively. I also highlighted that a mediation mechanism for resolving disputes under the CEPA Investment Agreement has already been put in place. We would capitalise on Hong Kong's strengths in mediation to better serve the local and international communities.

At the Colloquium, I suggested that it was worth exploring the establishment of a body through collaboration, based on credibility and sensitive to cultural diversity, to provide innovative and diversified dispute resolution services that lead to a win-win situation for all parties and achieve the effect of synergy.

Similarly, we should consider the use of an innovative and diversified dispute resolution technique to handle the existing conflicts in Hong Kong. Whilst enjoying the rights and freedoms that one is entitled to, one must also respect the rights of others. Consensus should be built through dialogues, not violence. We can then surpass this difficult time and restore peace and order in Hong Kong and move forward.

August 22, 2019

As part of the Government, my colleagues and I have been meeting with various legal professional bodies and individuals from the legal and dispute resolution services sector over the last month to listen to their views on the current situation. They were also invited to offer suggestions on the upcoming Policy Address. We will continue to gauge the views from the legal and dispute resolution sector and hope that our collective wisdom would enable the Government to formulate policies which cater to the different needs of the public.

The Government has all along attached great importance to its communication with the youths. With the assistance from the International Youth Legal Exchange Federation, I was earlier given an opportunity to spend an enjoyable afternoon with a group of law students. The students, who joined the Mainland China Legal Internship Programme, just completed their one-month exchange at law firms, business organisations or arbitration institutions in Shanghai or Beijing. They shared with each other their experience and insights at the gathering. Most of them agreed that the programme had widened their horizon by learning more about the development of legal, economics and livelihood of our country. This invaluable experience would no doubt be beneficial to help them work with Mainland or overseas legal professionals and businessmen in future. They understood that they can only improve themselves by adopting a far-sighted and open-minded attitude while keeping abreast of the development of our country and the rest of the world.

Some barristers and solicitors who are in private practice, as well as our government counsel were invited to share with the students about the different areas of legal services. I hope that this would help the students be better equipped and prepare themselves for their career development. Whilst encouraging them to visit more places to experience for themselves different legal systems, we also invited them to be Hong Kong’s ambassadors to promote our legal systems and competitive edges. I hope that during the course of study, they will grasp the chance to let more people learn about Hong Kong.

Meeting with law students is the first step taken by the Department of Justice in line with the new style of governance. My colleagues and I are endeavoured to introduce more new measures to better gauge the public sentiments and ensure that our policies bring more benefits and convenience to the public.

August 15, 2019

With the basic idea of “online case heard online”, the Beijing Internet Court adopts an e-litigation platform and utilizes artificial intelligence technology to generate pleadings, real time voice-to-text and the basic information of judgments. Hearings are conducted through the electronic platform on which parties to the litigation are not required to appear in person. The court, integrated with intelligent technology, brings an easy access to justice to all parties.

To echo with the Goal 16 of “the United Nations 2030 Sustainable Development Goals” - promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels, the HKSAR Government indicated support for the development of an online dispute resolution and deal making platform. A non-governmental organisation, eBRAM (Electronic Business Related Arbitration and Mediation) is tasked to develop such a platform to provide efficient and cost-effective online dispute resolution services.

eBRAM will use internet-based online platform to facilitate the provision of one-stop dispute resolution services. To ensure a smooth operation in future, the staff of eBRAM visits different places, such as the Beijing Internet Court, to learn more about the technology for e-litigation platform. At the same time, they also share their experience with institutions from other jurisdictions. Participation in the discussion on the development of online dispute resolution at APEC is an example.

One of the characteristics under development by eBRAM is making use of artificial intelligence and advanced technology to provide a secure platform for the upload, download and exchange of case materials to assist parties in resolving disputes and entering into business deals.

Users will be able to access the platform anywhere around the world with only an internet connection. It will not only facilitate development of local micro, small and medium-sized enterprises and legal professionals under the Belt and Road as well as Greater Bay Area Initiatives, but also create synergy with existing dispute resolution service providers.

Innovative technology has greatly helped the development of dispute resolution services. I believe the establishment of a safe, reliable and credible platform to provide enterprises with cost-effective online dispute resolution services will become a new trend. The Government will continue to actively promote LawTech. We hope that eBRAM will provide a more convenient way to access to justice in a bid to strengthen our rule of law.

August 7, 2019

The notable measures include the removal of the minimum capital injection ratio of 30 per cent by Hong Kong partner firms in the partnership associations set up in the Guangdong Province, legal practitioners from Hong Kong, Macao and Mainland can be employed in the name of the partnership associations, partnership associations may handle and undertake administrative procedure legal work and years of establishment, work performance and other qualifications of both the Hong Kong and Mainland partner law firms can be counted towards the qualification of the Mainland business of the partnership associations. These measures bring flexibilities such as in the setting up of and employment by partnership associations.

Hong Kong’s legal and dispute resolution services are highly regarded. Our legal professionals are experienced in various specialised areas of law. The Trial Measures encourage more partnership associations to be set up by Mainland and Hong Kong law firms, especially by small and medium-sized law firms, to provide one-stop shop of cross-jurisdictional legal services. This will bring more opportunities for the legal sector in the Greater Bay Area.

My colleagues and I will continue to maintain close contacts with the Ministry of Justice and other departments with a view to early implementation of other liberalisation measures.

Lastly, I would like to express my gratitude to my colleagues for their devotion in the discussions with the Mainland authorities to implement the measures. Also, my heartfelt thanks to the Law Society of Hong Kong and representatives from the local small and medium-sized law firms for their valuable opinions in making the measures more effective and responsive to the needs of the legal sector.

August 1, 2019

You may find the questions very challenging. Those who can give a cogent argument must be engaged in the legal profession for a long time. Will you be surprised if I tell you that six law students studied this topic in a comprehensive, in-depth and thorough way ?

The six students are in fact the winners of the Law Reform Essay Competition 2019, which is organised by the Law Reform Commission (LRC). We hope it will arouse students’ awareness in law reform and to offer them an opportunity to reflect on, and then make proposals about, what the law “should be”. The winners were each awarded a one-month or two-month attachment with a leading law firm, a barristers' chambers, a commercial corporation or the Department of Justice. I believe this valuable experience will be beneficial to their future career development.

If you are interested in their essays, please go to the website of the LRC.

I would also like to give you a brief introduction of the LRC. It is an independent body and considers whether, and if so, how reform of the laws in a specified area should be made. Its recommendations will be passed to the relevant policy bureau of the government to consider whether or not to accept. Last year, three sub-committees of the LRC published their respective consultation papers. It is also worth mentioning that the Sexual Offences Sub-committee published a report on voyeurism and non-consensual upskirt-photography to respond to the imminent need for the introduction of these new offences.

Having set out what the LRC does, you may note that new legislation is often proposed by policy bureaux. Our counsel will liaise with the relevant policy bureau to gain a thorough understanding of the background and intended effect of the proposal. They will also provide advice on whether the proposed legislation is consistent with the Basic Law and other legal matters. Our counsel will work closely with the policy bureau in drafting the proposed legislation taking into account the policy direction. They will also assist in the legislative process.

Being the Secretary for Justice and the Chairman of the LRC, I am committed to keeping our law up-to-date and will continue to closely follow up on the implementation of proposals made by the LRC.

July 14, 2019

Many of the students have watched TV dramas or movies about prosecutors with some impressions. Through a host of activities, they came to realise that our prosecutors not only carry out criminal prosecutions at courts but also provide legal advice to law enforcement agencies. However, unlike the characters in some of the TV dramas or movies, our prosecutors do not conduct investigations because this is the duty of law enforcement agencies (such as police or ICAC).

The law enforcement agencies will refer the cases, after their investigations, to the Prosecutions Division when necessary. Our prosecutors make each prosecutorial decision based on evidence, the applicable laws and the Prosecution Code. Even if arrests are made on the same occasion, it does not necessarily mean that all of the arrestees have to be charged, or charged with the same offence.

Irrespective of how an incident is defined by any person, one should not speculate that same charge must be laid against all those persons involved in that incident. Comments and opinions expressed in the community would not affect us in discharging our prosecutorial duties because the Article 63 of the Basic Law guarantees that the criminal prosecutions by the Department of Justice are free from any interference.

Lastly, I wish to say that my colleagues and I are working together to tie in with the Government’s new style of governance by strengthening our exchanges with legal practitioners and professionals in the dispute resolution sector. Their views will be considered in the process of formulating our policies in future. You are also advised to fulfil your civil duty by refraining from any law-breaking behaviours especially violent acts or vandalism. Collaboration in maintaining law and order is the key to the upholding of our rule of law.

July 07, 2019

Regarding the controversies and disputes in society arising from the strife in the past few months, being a team member of the Government, I offer my sincere apology to all people of Hong Kong. We promise to adopt a most sincere and humble attitude to accept criticisms and make improvements in serving the public.

The Department of Justice will continue to maintain close contacts with the legal sector to exchange views on matters of mutual concern. Since I took office as the Secretary for Justice, I have put in arrangements of regular meetings with the Law Society of Hong Kong and the Hong Kong Bar Association to enhance our communications with the legal sector. I also frequently meet with legal practitioners as well as professionals from the arbitration and mediation sectors to explore ways to uphold our rule of law and consolidate Hong Kong as a leading centre for international legal and dispute resolution services.

Last but not the least, the Government has learned a hard lesson, but we remain hopeful that the experience gained will help us work better to meet the public’s expectations in future.

June 21, 2019

Together with our invited panelists, Lady Justice Hallett and Ms Read shared with us their rich experience and insights on the four themes of this year’s conference, namely: cybercrime, money laundering, trafficking in persons and sexual offences. I believe participants benefitted from the candid and in-depth discussions.

We particularly valued the opportunity for international exchange and co-operation. With the advent of technologies, the world is shrinking with increased flows of people, goods, information and capital. As an international financial centre and a highly connected city, Hong Kong’s airport and container port are some of the busiest in the world. These have of course brought a lot of business opportunities to Hong Kong. Yet, they are also exposing us to the risks of cross-border crimes. That is why all four themes at this year’s Conference are pressing issues, and they can only be tackled through proactive enforcement and judicial co-operation without geographical limitations.

Hong Kong has always been an active and responsible player in the international fight against crime. Under the principle of "one country, two systems", Hong Kong is allowed to establish our own regime of reciprocal juridical assistance with other jurisdictions. Such a framework should be workable, provide the appropriate safeguards for the fugitive offenders, and importantly be applicable to all the jurisdictions in the world. I sincerely hope that we are now moving in this direction.

June 7, 2019

Last Friday, DoJ organized the biennial “Mediate First” Pledge Event 2019 with the theme “Mediate First: Unlocking Potential”. It was a very fruitful and vibrant event with discussions including sports mediation and deal mediation, as well as mediation experience sharing among certain local industries. Mediation enables different parties to resolve disputes in an amicable and constructive manner. With the help of mediators, parties concerned may reach a mutually acceptable solution. In the days ahead, we will continue to actively pursue and formulate how to capitalise on Hong Kong's strengths in mediation established over the years.

At the same time, we will endeavor to make the best out of the information and communications technology by establishing diversified channels to disseminate our messages to stakeholders and the public directly. By keeping you abreast of our new initiatives and key issues, I hope it will bring us closer in upholding the rule of law, sharing ideas for the promotion and development of Hong Kong’s legal and dispute resolution services.

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May 26, 2019