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New Difficulty of Hong Kong Regulation Journal (Vol. 52, Half 3 of 2022)

Writer: Candy & Maxwell

TABLE OF CONTENTS

Evaluation

Proprietary Estoppel Treatments in Hong Kong
Jing Hui…789

In Hong Kong regulation, the courts have all the time declined to introduce the remedial constructive belief gadget, characterising it as a moot level or as a tool that doesn’t exist in Hong Kong. Nonetheless, the latest Court docket of Last Attraction (CFA) resolution in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 deviated from the foregoing perspective to remedial constructive trusts. It recognised “unconscionability” as the idea of aid, demonstrating the departure of Hong Kong regulation from the rules of proprietary estoppel presently utilized within the English regulation. Opposite to the English strategy of minimal fairness to do justice, the train of broad discretion by the CFA in Cheung Lai Mui was extra much like the Australian strategy to proprietary estoppel treatments. This case observe analyses the the reason why the CFA adopted the remedial constructive belief strategy in Cheung Lai Mui, in addition to the issues that come up from the adoption of such an strategy in Hong Kong regulation.

Falsehoods, International Interference and Free Speech in Singapore
Kenny Chng and Jeremy Chai…799

Lecture

The Essence of Advocacy
Kemal Bokhary…811

Fundamental Regulation Anniversary Focus

Focus: twenty fifth Anniversary of the HKSAR
Albert HY Chen…825

The Altering Constitutional Order of the HKSAR: A Retrospective Reflection
Zhu Guobin…827

Id Politics and Constitutional Change in Hong Kong: The Nationwide Safety Regulation and 25 Years of the Fundamental Regulation
Jie Cheng…851

Two Years On: Reviewing the Implementation of the NationalSecurity Regulation within the HKSAR
Michael Jackson...875

This assessment surveys the case regulation coping with the Hong Kong Nationwide Safety Regulation (NSL) offences within the two years because the enactment of the NSL, with a view to figuring out what now we have realized concerning the 4 classes of NSL offences. The article is anxious primarily with Ch III of the NSL, headed “Offences and Penalties”, but in addition covers to a lesser extent Ch IV, coping with “Jurisdiction, Relevant Regulation and Process”. Half 1 introduces the NSL offences regime. Half 2 will briefly summarise the enforcement of the NSL since its enactment. Half 3 will define a number of key themes or rulings rising from the case regulation referring to the combination of the NSL with present HK legal regulation and process. Half 4 will discover what now we have realized concerning the NSL offences themselves and their parts, and the way the courts have begun to form these offences inside HK’s present widespread regulation authorized system. Half 5 will provide some temporary conclusions.

Reactivated and Re-energised: The Sedition Offences in “New Period” Hong Kong
Pui-yin Lo …913

Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had a unprecedented historical past because the institution of the Hong Kong Particular Administrative Area (HKSAR). However that it was as soon as proposed to place them into the proverbial dustbin, the sedition offences have, because the introduction of the Regulation of the Folks’s Republic of China on Safeguarding Nationwide Safety within the Hong Kong Particular Administrative Area (NSL) in mid-2020, been vigorously enforced as an “offence endangering nationwide safety” throughout the which means of the NSL by the Nationwide Safety Division of the Hong Kong Police Drive and the Division of Justice. This text considers this current historical past of reactivation of the sedition offences along side the system of enforcement offered underneath the NSL with a purpose to clarify the boosted place held of the sedition offences by the native regulation enforcers and their supervisors. This text then examines a number of accomplished prosecutions of sedition thus far to discern how the courts of the HKSAR have seen these offences, each in mild of the makes an attempt to impugn the offences by the defence and the comparable circumstances of sedition-like offences from different widespread regulation jurisdictions. Lastly, this text gives three methods for persuading the appellate courts that the sedition offences and their enforcement per the NSL might be curtailed or circumscribed: (1) sections 9 and 10 had been repealed by operation of the Hong Kong Invoice of Rights Ordinance (Cap 383), and accordingly there’s nothing to be revived for enforcement; (2) remedial interpretation(s) will be suitably imposed to resolve the problems of authorized certainty and necessity of criminalising speech and expressive acts merely and plainly for his or her ascribed “intentions” and (3) a number of of the seven classes of “seditious intention” have a fairly uncertain reference to the safeguarding of nationwide safety and the duty of the establishments of the HKSAR to stop, suppress and punish acts and actions endangering nationwide safety, in order that it’s applicable on stability with the safety of basic rights and the rule of regulation to disapply the NSL’s system of enforcement in opposition to individuals alleged to have dedicated acts underneath these classes of “seditious intention”.

Taking Rights Significantly — the Judiciary at a Difficult Time
Johannes Chan…937

Whereas the judiciary is mostly thought to be the defender of the rule of regulation and basic rights, it isn’t unusual that judges may additionally suppress democratic values. Courts world wide have legitimised undemocratic and even repressive regulation and practices. Authoritarian regimes are inclined to seize the judiciary, not solely as a result of the judiciary would supply the legitimacy for anti-democratic measures, however the nature of the establishment may additionally masquerade such measures as a professional train of energy that makes it harder to detect and reply to. This text examines the connection between the Central Authorities and the judiciary of the Hong Kong Particular Administrative Area (HKSAR). It focuses on the judicial responses when the Central Authorities determined to shift the emphasis from “Two Techniques” to “One Nation” underneath the constitutional design of the HKSAR and to train “full jurisdiction” over Hong Kong. By specializing in the reasoning and the context of the related circumstances, it argues that the responses of the judiciary quantity to a weak type of “abusive judicial assessment”. The constitutional mannequin of “One Nation, Two Techniques” implies mutual lodging of the 2 programs, and convergence means reconciliation of the 2 programs reasonably than altering one system to evolve with the opposite system. Whereas there are incidents suggesting a powerful type of “abusive judicial assessment”, it’s argued that it’s too early to attract this conclusion. The article additionally cautions that when the pendulum has swung from one excessive to the opposite, it’s much more necessary for the judiciary to make full use of the tapestry of widespread regulation rules to strike a greater stability between basic rights and safety of nationwide safety.

Reflections on the Which means of the Proper to Vote in Hong Kong
Simon NM Younger …965

If rights are interpreted purposively, what’s the objective of the best to vote in Hong Kong? It means greater than casting a poll or being a candidate in elections. The fitting to vote serves to allow everlasting residents to take part meaningfully within the electoral course of and public affairs extra typically. Significant participation implies that voters are knowledgeable of the related points. Hong Kong underwent main reforms in its electoral programs in 2021. Within the eyes of the general public, the reforms had the impact of rendering the best to vote much less significant, if not meaningless. Sooner or later, the central and regional governments want to revive individuals’s confidence within the elections and produce again vibrancy to the best to vote in Hong Kong.

Articles

Enforceability of Extreme Pricing Guidelines underneath Hong Kong Competitors Regulation
Jae Woon Lee and Yiu Yeung Tong…977

The Govt Order System of the Fundamental Regulation of the Macao Particular Administrative Area
Yumei Kang and Ziyu Liu…997

Window Dressing or Significant Constraint? Assessing the Position of the Worldwide Covenant on Civil and Political Rights and the United Nations Human Rights Committee in Hong Kong’s Authorized System Carole J Petersen…1031

The Challenges of the Singapore Conference to the Chinese language Mediation System
Xiong Hao…1057

China Regulation

Dancing in Chains: Reassessing China’s International Funding Laws (Half II)
Li Yang, Hui Pang and Charlie Xiao-chuan Weng…1083

Chengwei Liu and Kang Wang…1111

A Proper to an Clarification of Algorithmic Determination-Making in China
Huanmin Lin and Hong Wu…1163

An Empirical Examine of Ache and Struggling Awards in Chinese language Private Harm Instances
Ding Chunyan and Zhi Pei…1193

E-book Evaluation

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