JUSTICE IN FOCUS ISSUE ONE 2020
dojhk.idar 普惠避免及解决争议办公室 IDAR O ce Page www.doj.gov.hk www.legalhub.gov.hk Online Version Features
Message from the In This Issue Secretary for Justice
The Department of Justice is excited to present Features the inaugural issue of“Justice in Focus” , a new HK Legal Week 2019 ...... 01 publication for sharing with the international and Vision 2030 for the Rule of Law ...... 04 local communities our work and our continuous HK Arbitration Week ...... 05 efforts in delivering our pledge —“ Rule of Law and Investment Law and Investor State Mediator Training ...... 05 Justice for All”. Public Consultation on the CISG ...... 06 Online Dispute Resolution Developments under APEC ...... 08 In this inaugural issue, you will find news about the major activities and events organised by the What’s New? Department or attended by our officers around the Legal Updates ...... 09 world from late 2019 to early 2020. You will also find New Legislation for Fighting COVID-19 ...... 10 updates on the initiatives of the Department and relevant legislative or policy proposals discussed at Global and Mainland Connections the Legislative Council. We hope you enjoy reading DOJ Global and Mainland Connections Map ...... 12 Justice in Focus. International Forum on Electronic Apostille Programme ...... 13 Participation as Third Party in WTO Hearing in Geneva ...... 14
th Justice in Focus is available online at www.doj.gov. AALCO 58 Annual Session ...... 14 Secretary for Justice Teresa Cheng delivering her welcoming remarks at the 3rd UNCITRAL Asia-Pacific Judicial Summit hk. For the Department’s upcoming events and a Combating Money Laundering & Counter-financing of Terrorism ...... 15 th wealth of other information about Hong Kong’s legal 12 ASEAN-China Prosecutors-General Conference ...... 16 HONG KONG LEGAL WEEK 2019 – services, you can visit www.legalhub.gov.hk. North-East Asian Multistakeholder Forum on Sustainable Development Goals ...... 17 SJ’s Duty Visit to Guangzhou ...... 18 INCLUSIVE, INFORMATIVE, Department of Justice Hosts Seminars in Beijing ...... 19 INNOVATIVE AND INTERACTIVE Prosecuting Waste Crimes ...... 19 Editorial Board “ ” HK-Zhuhai-Macao Bridge Visit ...... 20 Aspiring to achieve the four I s – to be inclusive, informative, members of international organisations with experience and • Audrey Parwani (Prosecutions Division) innovative and interactive – the inaugural Hong Kong Legal expertise in international trade and private international law. • Jane Tang (International Law Division) Week was held from 4 to 8 November 2019 comprising three • Jasmin Cheung (Board Chairperson) Community Connections significant events: the 3rd UNCITRAL Asia-Pacific Judicial Themed“ Deal-making and Dispute Resolution in the Digital • Jenny Law (Legal Policy Division) Staff Club Campaign to Combat COVID-19 ...... 21 Summit 2019, the inaugural Hong Kong Mediation Lecture and Economy: The Role of the Judiciary,” the summit was officially • Liz Wong (Administration and Development Division-also the 32nd LAWASIA Annual Conference. opened by Permanent Judge of the Court of Final Appeal Mr Board Secretary) • Samuel Lee (Civil Division) Knowledge and Skill THE 3RD UNCITRAL ASIA-PACIFIC • Wallance Ng (Law Drafting Division) Enhancement Programmes JUDICIAL SUMMIT Oxford Advanced Management and Leadership Programme ...... 22 Hong Kong Legal Week was launched at the UNCITRAL Asia- Middle Temple Advocacy Course ...... 22 Pacific Judicial Summit, a biennial event held in Hong Kong Special thanks to: Attachment to Beijing Justice Bureau ...... 23 for the third time and jointly organised by the Department of • Elizabeth Grindey (Law Drafting Division) National Studies Courses ...... 23 Justice, the United Nations Commission on International Trade • General Translation Unit Law (UNCITRAL) and the Asian Academy of International Law. • Manuel Ng (Law Drafting Division) - Cover Design Attracting more than 150 participants from over 25 jurisdictions • Olivia Kong (Public Relations and Information Unit) Useful Information to Hong Kong, the summit brought together an international • Patrick Chan (Information and Technology Management Unit) Notable Court Judgments ...... 25 community of eminent members of the judiciary, the legal Justice Andrew Cheung delivering his welcoming remarks at the 3rd profession and academia, leaders from the private sector and UNCITRAL Asia-Pacific Judicial Summit
0101 Features Features
Justice Andrew Cheung, Secretary for Justice Teresa Cheng SC COOPERATION ARRANGEMENTS and Secretary of UNCITRAL Anna Joubin-Bret. WITH THE UN AND THAILAND Secretary-General of the International Institute for the At the opening of the UNCITRAL Asia-Pacific Judicial Summit, Unification of Private Law (UNIDROIT) Professor Ignacio a signing ceremony was held for the Memorandum of Tirado also delivered a keynote speech highlighting the Understanding between the Department of Justice and the value of international legal instruments for judges in the Asia- United Nations as well as the Memorandum of Cooperation Pacific region. Prominent speakers took turns in sharing their between the Department of Justice and the Office of the knowledge of and insight into a range of selected topics in Judiciary of Thailand. The two cooperation arrangements the panel discussions. The summit provided a meaningful marked the third and fourth instruments on enhancing platform for the international community to enhance knowledge cooperation and exchange signed by the Secretary for Justice in international trade and facilitate the uniform interpretation of in 2019, following similar ones concluded with Japan and international law. Korea. The arrangements are an encouraging step in furthering legal cooperation and working relations between Hong Kong For judges from different jurisdictions, we have rare and international organisations, as well as foreign jurisdictions. opportunities like this to come together and learn from each other. The event helps us get the views and perspectives from (L to R) President of the Law Society of Hong Kong Melissa Pang, Chief Justice Geoffrey Ma, Chief Secretary for Administration Matthew Cheung, Secretary for different judges across the world. It also provides us with a time Justice Teresa Cheng and President of LAWASIA Christopher Leong at the opening ceremony of the conference to discuss the multi-facets of cross-border dispute resolution, ND which have been complicated and complex to us. With new THE 32 LAWASIA CONFERENCE issues coming up every day, it will be beneficial for us to have LAWASIA is an association advocating for the interests and and Implementation of the Constitution in the Maintenance of the regular discussions like this. concerns of the legal profession of the Asia-Pacific region. Rule of Law: The Hong Kong Experience”, covering areas ranging Its annual conference is a platform to facilitate the discussion from the nature, interpretation and key provisions of the Basic Judge Sorawit Limparangsri, Judge of the Research Division of of regional developments in areas of the law by bar leaders, Law to various related issues such as judicial independence and the Court of Appeal for Specialized Cases, Thailand. jurists, professional organisations and individual lawyers from the“co-location”arrangement. across the region. Vernon Loh, the Acting Senior Assistant Solicitor General of nd Some topics discussed here are new to Mongolia. I hope The 32 LAWASIA Conference: Harmonisation through Synergy, the Legal Policy Division’s Human Rights Unit, also spoke to apply what I have learnt from other jurisdictions to my place. was held in Hong Kong from 5 to 8 November. The four-day on the constitutional and legal frameworks for the protection (L to R) Secretary of UNCITRAL Anna Joubin-Bret with Secretary for Justice conference embraced many topical issues of mutual interest to the of human rights, the constitutional right of access to courts, The series of events in the Legal Week in Hong Kong has been Teresa Cheng legal profession and attracted over 600 legal practitioners from 30 judicial remedies for unconstitutionality, and recent case beneficial and helpful to us. jurisdictions. The conference opened with welcoming remarks and law developments on the Basic Law in dealing with modern special addresses by Secretary for Justice Teresa Cheng SC, Chief human rights issues such as human trafficking and same-sex Judge Nyamsuren Gochoo, Civil Judge, First Instance Court, Justice Geoffrey Ma, President of The Law Society of Hong Kong marriages. Songinokhairkhan district of Mongolia Melissa Pang and President of LAWASIA Christopher Leong. Dr James Ding, Commissioner of the Inclusive Dispute At a session on constitutional law, Solicitor General Wesley Wong Avoidance and Resolution Office, also spoke in another session The conference is informative and clear. We are impressed SC shared his views on the topic“ The Importance of Interpretation on developments in online dispute resolution under APEC. by the organisation of Hong Kong and the words from Ms Cheng, Secretary for Justice. Hopefully, this kind of conference can be hosted every year as this is a good platform for experience sharing and capacity building for legal and dispute resolution in our region.
Judge Chinara Aidarbekova, Supreme Court Judge, (L to R) Justice Sarawut Benjakul from the Office of the Judiciary of Thailand Kyrgyz Republic with Secretary for Justice Teresa Cheng
Solicitor General Wesley Wong speaking at the LAWASIA Conference Vernon Loh at the LAWASIA Conference
02 03 Features Features VISION 2030 HK ARBITRATION WEEK INVESTMENT LAW AND FOR THE RULE OF LAW Arbitration is growing in popularity as a flexible, efficient and INVESTOR-STATE confidential way to resolve disputes outside the courts. Often This year, the Department of Justice has embarked on“ Vision used in international commercial disputes, arbitration results MEDIATOR TRAINING 2030 for the Rule of Law” (Vision 2030), a visionary 10-year in a legally binding and enforceable award, while avoiding the initiative to enhance and strengthen the rule of law in Hong traditional, more expensive route of litigation. Kong and to promote the rule of law in this region and beyond. To promote the development of international arbitration in This initiative shows our support for the Sustainable Asia, each year the Hong Kong International Arbitration Centre Development Goals (SDGs) under the United Nations’ 2030 (HKIAC) hosts Hong Kong Arbitration Week – a global platform Agenda for Sustainable Development. The Agenda, including for distinguished members of the arbitration community to Prof. Jack J Coe Jr at the Hong Kong Legal Week Mediation Lecture its 17 SDGs, adopted by the General Assembly of the United address important issues in arbitration. Nations in 2015, aims to address global challenges, including th THE INAUGURAL HONG KONG poverty, inequality, climate change, environmental degradation, The 8 Hong Kong Arbitration Week – held from 20 to 25 October MEDIATION LECTURE peace and justice. The 17 SDGs are interconnected, with the 2019 – was the largest to date, with 23 events over six days rule of law being a pillar for its successful implementation. In attended by more than 680 participants from 40 jurisdictions. The Hong Kong Mediation Lecture, held on 5 November 2019, particular, Target 16.3 of Goal 16 aims to promote the rule of law Each year the international profile of Hong Kong Arbitration Week was the first of a series of annual lectures featuring prominent and ensure equal access to justice for all. has risen, and this year Mainland China, India, Russia, Germany and distinguished experts on topical issues in the field of Secretary for Justice Teresa Cheng delivering a speech at the opening and the United States were represented for the first time. mediation to promote the use of mediation and further the ceremony Through professional exchanges, research and capacity development of inclusive dispute resolution. building with stakeholders, it is hoped that Vision 2030 can At the flagship event of the Week,“ HKIAC’s ADR in Asia The Investment Law and Investor-State Mediator Training co- The inaugural lecture was presented by Professor Jack J strengthen the Hong Kong community’s understanding of the Conference”, Secretary for Justice Teresa Cheng SC organised by the Department of Justice, the International Centre Coe Jr (pictured above) of Pepperdine Law School, the USA, concept of the rule of law and its implementation, enhance the announced the launch of a review by the Law Reform for Settlement of Investment Disputes and the Asian Academy whose sharing of insights into the benefits and challenges development of the rule of law internationally, and safeguard Commission of outcome-related fee arrangements for of International Law was held from 28 October to 3 November of combining mediation with arbitration was enthusiastically Hong Kong’s prosperity, stability and sustainable development. arbitration in Hong Kong. She also spoke of the establishment 2019. received. of a sub-committee to review the current legal framework and To take forward the initiative, a Task Force with a membership of make recommendations. World-renowned trainers were invited to share their knowledge HONG KONG LEGAL WEEK: WAY FORWARD locally and internationally renowned experts has been set up to and expertise at the one-week training, held for the second time The inaugural Hong Kong Legal Week was an enormous success advise the Department on the implementation of Vision 2030. The Secretary for Justice also gave an update on the following the success of the 2018 course. Investment law is a with participating legal experts from over 30 jurisdictions. It Arrangement Concerning Mutual Assistance in Court-ordered branch of law consisting of a set of rules that regulate foreign provided a valuable occasion for international collaboration and For more information, please visit https://www.doj.gov.hk/ Interim Measures in Aid of Arbitral Proceedings by the Courts direct investment and the resolution of disputes between foreign synergy in pursuit of the common goals of strengthening the rule eng/public/vision2030.html, and read the Opening Remarks of the Mainland and of the Hong Kong Special Administrative investors and sovereign states. of law and promoting access to justice for a better and more of the Secretary for Justice on“ 2019 Policy Initiatives of the Region, which came into force on 1 October 2019. inclusive society. Department of Justice” at the panel meeting on Administration The course gathered some 40 participants from around the of Justice and Legal Services of the Legislative Council on 27 The Arrangement allows Hong Kong to be the first and only world, including government officials as well as legal and Going forward, Hong Kong Legal Week will be held annually in April 2020. jurisdiction outside the Mainland where parties to arbitral mediation practitioners from the Mainland, ASEAN, the Middle the first week of November, during which a series of international proceedings administered by eligible arbitral institutions can East and Africa. events in various legal fields will take place in Hong Kong, apply to Mainland courts for interim measures. Now, interim providing an opportunity for dialogue and closer cooperation measures – such as preservation of evidence (e.g. not The training is one of the Department’s initiatives to develop among legal professionals and organisations from around the destroying a document) and property (e.g. freezing assets) – Hong Kong into a training base for building up a team of world. can be granted to parties to Hong Kong-seated arbitration. mediators specialized in handling international investment disputes in Asia. The upcoming Hong Kong Legal Week 2020 will be held from It is expected that this game-changing Arrangement will benefit 2 to 6 November 2020, featuring a number of international legal parties from all over the world, as well as enhance Hong Kong’s events including the inaugural Rule of Law Congress, North- attractiveness as a centre for alternative dispute resolution. East Asia Multistakeholder Forum on Sustainable Development Goals 2020, the 2nd Hong Kong Mediation Lecture, Case Looking forward, Hong Kong’s arbitration community will be Settlement Conference and Mediation Conference. The well-placed to help in resolving any disputes arising from the Department’s“ Vision 2030 for the Rule of Law” initiative will also increased commercial activity generated by the Belt and Road be officially launched during Hong Kong Legal Week 2020. Initiative and the development of the Greater Bay Area.
04 05 Features Features
WHAT IS THE CISG? The CISG is a multilateral treaty which provides uniform rules The Convention was prepared out of recognition that legal on the essential aspects of the international sale of goods, disparities concerning contracts of sale of goods increase including: transaction costs on the one hand but also increase the difficulty - contract formation of settling disputes as they arise later on. Because typically in - respective obligations of the buyer and seller such a situation the adjudicator … would have to determine - remedies for breach of the sales contract. first which law, substantive national law, would apply to that transaction… the court will then have to discover and determine The purpose of the CISG is to provide a modern, uniform and the content of that law. And this is a process that typically fair regime for cross-boundary sale of goods contracts. This helps to introduce certainty in commercial exchanges and results in protracted litigation and delay in dispute settlement... decrease transaction costs. So in order to facilitate transactions and to make the outcome of litigation more smooth and predictable, the Convention was In particular, the CISG applies to contracts for the sale of goods developed… between parties whose places of business are in different States, when (a) the States are Contracting States, or (b) the UNCITRAL Head of the Legislative Branch rules of private international law lead to the application of the José Angelo Estrella Faria law of a Contracting State. MORE ABOUT THE CISG To enable the business and legal sectors to have a better understanding of the CISG and the proposed application, International Law Division colleagues However, Article 95 of the CISG allows a State to declare at the 1. The text of the CISG was developed by UNCITRAL. conducted two briefing sessions titled“ The CISG in Hong Kong – What good is it for my business?” in January 2020 time of the deposit of its instrument of ratification, acceptance, 2. The CISG is intended to be equally authentic in its six official approval or accession that it will not be bound by the provision language versions (Arabic, Chinese, English, French, Spanish in CISG which provides for (b) above (i.e. Article 1(1)(b)). and Russian). 3. The fundamental principles underlying the CISG include: PUBLIC CONSULTATION ON APPLYING China has made this declaration pursuant to Article 95. In party autonomy, promotion of good faith in international trade, addition, parties to a contract for the sale of goods may opt out preservation of contract and mitigation of damages. THE UN CONVENTION ON CONTRACTS of the CISG entirely or deviate from particular provisions to meet their specific needs. The exception is that the parties cannot FOR THE INTERNATIONAL SALE OF GOODS TO HKSAR derogate from or vary Article 12, which states that provisions allowing freedom of form for the creation, modification or In March, the Department of Justice launched its public CISG CONFERENCE termination of a contract of sale do not apply where the consultation on the proposed application of the United Nations To provide a timely opportunity for all involved in cross- Contracting State in question has made a declaration under Convention on Contracts for the International Sale of Goods boundary sales of goods to share insights and exchange views Article 95. (CISG) to Hong Kong SAR. The consultation will run until 30 on the impact of the CISG on global trade, a conference to September 2020. th commemorate the 40 anniversary of the CISG will be held in According to UNCITRAL, as at 1 April 2020, the CISG has 93 the last quarter of this year, organised by the Department of Contracting States from diverse legal traditions and levels of While China is a Contracting Party to the CISG, the CISG is Justice in collaboration with the United Nations Commission on economic development, which together represent over two- currently not applicable to Hong Kong. In preparation for the International Trade Law (UNCITRAL) and the Asian Academy of thirds of the global economy, and cover, among others, 12 of public consultation, the Department conducted a study on the International Law. Hong Kong’s current top 20 trading partners – Mainland China, proposed application, covering: the USA, Japan, Singapore, South Korea, Vietnam, Germany, - the CISG’s salient features We welcome views, comments and suggestions on any issues Switzerland, the Netherlands, France, Italy and Australia. - the interplay between the CISG and relevant Hong Kong law raised in the consultation paper. Final recommendations will be - the economic and legal considerations for extending the CISG drawn up after the Department has considered the responses to Hong Kong to the consultation. - subject to the results of the consultation, the proposed application and implementation of the CISG in Hong Kong.
Details of the study can be found in the consultation paper. For the full set of consultation documents, as well as information and resources related to the CISG, please visit: https://www.doj.gov. hk/eng/public/CISG.html.
06 07 Features What s New? LEGAL UPDATES
STATUTE LAW BILL 2019 INTRODUCED IN LEGCO RICH TEXT FORMAT COPIES OF LEGISLATION The Statute Law (Miscellaneous Provisions) Bill 2019 was NOW AVAILABLE ON HKEL WEBSITE introduced in the Legislative Council on 15 January 2020 to To suit the needs of different users, Hong Kong legislation is not propose miscellaneous amendments to various ordinances to only published in HTML and PDF formats, but also in RTF format update the legislation. One of the major proposed amendments on the HKeL website. From March 2020, RTF copies for all current is to amend the High Court Ordinance (Cap. 4) to extend the versions and all past verified versions of Hong Kong legislation use of a two-Judge bench of the Court of Appeal to determine are available for reference purposes. They can be downloaded applications for leave to appeal to the Court of Final Appeal as individual provisions or whole chapters, and in monolingual or against the decisions made by the Court of Appeal consisting bilingual settings, according to the users’preference. of less than three Justices of Appeal, as well as appeals against ’ the Court of First Instance s decisions to refuse to grant leave This feature makes it easier for users to“ copy and to apply for judicial review. paste”legislative texts to email or other documents, and it enables users to mark notes on copies of legislation using desktop word processing software. For more details, please visit the HKeL website at https://www.elegislation.gov.hk
LAW REFORM COMMISSION REPORT ON REVIEW OF SUBSTANTIVE SEXUAL OFFENCES The Law Reform Commission of Hong Kong published a (Front row, 3rd from L) Dr James Ding, the Commissioner of the Inclusive Dispute Avoidance and Resolution Office of the Department of Justice and Chair of the report on the Review of Substantive Sexual Offences on 5 LEGISLATION DATA AVAILABLE ON Economic Committee, speaking at the APEC Secretariat December 2019, making final recommendations for the reform THE GOVERNMENT’S OPEN DATA PORTAL of substantive sexual offences in the Crimes Ordinance (Cap. In support of the HKSAR Government’s policy to open up 200). These recommendations include the creation of a range of data for free public use to facilitate technology research and non-consensual sexual offences such as a new offence of sexual innovation, both current and past legislation data dating back ONLINE DISPUTE RESOLUTION penetration without consent, a uniform age of consent of 16 years to 30 June 1997 is available in machine-readable format for DEVELOPMENTS UNDER APEC old in Hong Kong, and the creation of a range of new gender- download through the Government’s Public Sector Information neutral sexual offences involving children and persons with Portal at https://data.gov.hk. mental impairment. It also recommends the reform of a series The Asia-Pacific Economic Cooperation (APEC) has been At the Concluding Senior Officials’ Meeting and the Informal of miscellaneous sexual offences such as incest, exposure, To facilitate the downloading process, legislation data is undertaking a project to promote the use of online dispute Senior Officials’ Meeting in December 2019 in Singapore and bestiality, necrophilia and homosexual-related buggery and gross divided into batches with reference to chapter numbers and in resolution (ODR) with micro, small and medium sized Langkawi, Malaysia, respectively, the Economic Committee indecency offences. compressed files format. Under our royalty-free copyright policy, enterprises. The Hong Kong SAR, as one of the 21 member reported to member economies its contributions to APEC interested parties may download the data for educational, economies of APEC, has been making a tremendous effort priorities and future work plan, including endorsement and commercial or non-commercial purposes without seeking in taking forward this initiative, through discharging the promotion of the ODR Framework, which was well received by express permission from the Government. role of the Convenor for the Friends of the Chair group on the APEC senior officials. Strengthening Economic and Legal Infrastructure under the APEC Economic Committee. At the 1st plenary meeting of the Economic Committee in Putrajaya, Malaysia, a policy discussion on the ODR Framework In August 2019, following the 2nd plenary meeting of the was held to discuss implementing the welcomed new APEC Economic Committee in Puerto Varas, Chile, the APEC developments. Collaborative Framework for ODR of Cross-Border Business to Business Disputes (ODR Framework), including its Model As at 31 May, China, Singapore, the USA and Japan, as well as Procedural Rules, was endorsed by the Economic Committee. Hong Kong, China, have opted into the ODR Framework, while Since September 2019, the Commissioner of the Inclusive a number of other member economies are undergoing internal Dispute Avoidance and Resolution Office of the Department procedures with a view to opting into the Framework in the very of Justice (IDAR Office) has also assumed the Chair of the near future. The next step is to identify ODR providers from Economic Committee, tasked to promote the ODR Framework these member economies to be listed by APEC under the ODR for member economies. Framework.
08 0909 What s New? What s New?
Despite the very tight time frame, every piece of new legislation One of the most challenging aspects of the work of the undergoes rounds of checking and proofreading before it NEW LEGISLATION FOR Legislation Team is managing tight time frames. On one hand, it is finalized and issued to the instructing client bureau. From is our job to ensure that the draft legislation is free of editorial FIGHTING COVID-19 consistency in the choice of words to compliance with plain or other irregularities. On the other hand, it is imperative that language drafting practice, and from usage of the appropriate The Hong Kong SAR Government has put in place various text format to concordance between the Chinese and English the deadlines be met. We have to be not only detail-minded and measures to prevent and control the spread of the novel texts, various facets of the draft are reviewed by the law diligent, but also flexible and responsive. coronavirus disease (COVID-19) in Hong Kong, some of clerks of the Legislation Team of the Law Drafting Division which required legislative backing. The Law Drafting Division, comprehensively and meticulously. Meanwhile, draft legislation Karen Chan, together with other Divisions in the Department of Justice, is also proofread by the clerical officers sedulously for Acting Senior Law Clerk I have acted swiftly in terms of drafting new pieces of legislation typesetting accuracy. and providing legal advice to the bureaus. Seven pieces of The Department of Justice will continue to provide professional legislation were made for combating COVID-19 during the first Even after the drafting process has been completed, the and timely legal support to the bureaus to fight against quarter of 2020: assiduous checking and proofreading continue in order to COVID-19:“ Together, We Fight the Virus!”For more information ensure that legislation is published in the Gazette accurately. on COVID-19, please visit https://www.coronavirus.gov.hk/eng/ index.html.
TIMELINE OF COVID-19 LAWS: JAN-MAR 2020 LATE-MARCH EARLY-FEBRUARY - Prevention and Control of Disease (Requirements and Directions) (Business and - Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (Cap. 599C) Premises) Regulation (Cap. 599F) - Prevention and Control of Disease (Disclosure of Information) Regulation (Cap. 599D) - Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (Cap. 599G) In order to deter cross-boundary traffic between Hong Kong and the Mainland to contain the spread of the virus, Cap. 599C was made to mandate, subject to a few exceptions, all persons arriving In order to further enhance social distancing to prevent extensive local transmission of from the Mainland to undergo 14 days of compulsory quarantine. Also, Cap. 599D was made at the the virus, Cap. 599F and 599G were made to empower the Secretary for Food and Health same time to criminalize the act of knowingly giving false or misleading information relevant to the to impose restrictions on the operation of catering businesses and certain scheduled risk of exposure to or contracting COVID-19 (such as his or her travel history) to a health officer or a premises, and to prohibit group gatherings of more than four persons at a public place medical practitioner. respectively.
EARLY-JANUARY MID-MARCH - Prevention and Control of Disease Ordinance (Amendment of Schedule 1) Notice 2020 - Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation - Prevention and Control of Disease (Amendment) Regulation 2020 (Cap. 599E)
The Amendment Notice and Regulation were made to include“severe respiratory disease In view of the surge of cases of COVID-19 cases globally, Cap. 599E was made to extend the scope associated with a novel infectious agent”as a statutorily notifiable infectious disease. This has of 14-day compulsory quarantine to all persons arriving from abroad. strengthened Hong Kong’s capability in monitoring the disease.
10 11 Global and Mainland Connections Global and Mainland Connections DEPARTMENT OF JUSTICE’S GLOBAL AND MAINLAND CONNECTIONS MAP
Bangkok, Thailand, 17 December 2019 Nanjing • Acting Senior Public Prosecutor Lisa Go took part in a United Nations-led • 13-19 October and 3-9 November 2019 Government Counsel and civil meeting aimed at tackling illegal trade and management waste in the Asia- servants participate in the National Studies Course at Nanjing University (see Lorraine Chan speaking at the e-APP Forum Pacific region (see p.15). p.23).
Beijing Oxford, UK, 6-26 October 2019 • 21 October-1 November 2019 Assistant Principal Government Counsel • Principal Government Counsel Dr James Ding from the Secretary for Samuel Lee of the Civil Division attended the 12-day National Studies Justice’s Office attended the Oxford Advanced Management and Course at Tsinghua University (see p.21). Leadership Programme (see p.21). INTERNATIONAL FORUM ON THE • 24-27 November 2019 Two seminars were hosted by Department of Justice with the aim of promoting Hong Kong’s legal and dispute resolution Paris, France, 2-4 December 2019 ELECTRONIC APOSTILLE PROGRAMME services (see p.19). • Senior Public Prosecutor Jennifer Fok attended the Financial Action Task Force Mutual Evaluation (see p.13). • 16-27 December 2019 Senior Public Prosecutor Betty Fu was attached to Deputy Principal Government Counsel Lorraine Chan and an environment of constant technological development. The the Beijing Justice Bureau (see p.20). Putrajaya, Malaysia, 14-22 February 2020 Government Counsel Eric Yuen of the International Law Division Apostille Convention was first extended to Hong Kong by the • Asia-Pacific Economic Cooperation First Senior Officials’ and Related attended the 11th International Forum on the electronic Apostille United Kingdom in 1965 and has continued to apply in the Dar es Salaam, Tanzania, 21-25 October 2019 Meetings (see p.8). • 58th Annual Session of the Asian-African Legal Consultative Organisation Programme (e-APP) as part of the Chinese delegation from 16 Hong Kong SAR after 1 July 1997. (see p.15). Siem Reap, Cambodia, 6-7 November 2019 to 18 October 2019 in Fortaleza, Brazil. • 12th ASEAN-China Prosecutors-General Conference (see p.14). Fortaleza, Brazil, 16-18 October 2019 Noting its advantages, the Hong Kong SAR supports the • Deputy Principal Government Counsel Lorraine Chan and Government More than 350 experts from over 45 Contracting and non- development of the e-APP and, with the backing of the Central th Singapore and Langkawi, Malaysia, 6-11 December 2019 Counsel Eric Yuen of the International Law Division attended the 11 • Asia-Pacific Economic Cooperation Economic Committee Concluding Contracting Parties to the Hague Conference on Private People’s Government, hosted the 9th International Forum on International Forum on the electronic Apostille Programme (see p.11). Senior Officials’Meeting and Informal Senior Officials’Meeting (see p.8). International Law (HCCH) Convention of 5 October 1961 the e-APP in October 2014.
Geneva, Switzerland, 18 November 2019 Tokyo, Japan, 28 October-15 November 2019 Abolishing the Requirement of Legalisation for Foreign Public • Representatives from the Trade and Industry Department and Department • Acting Assistant Director of Public Prosecutions Anthony Chau attended the Documents (Apostille Convention) participated in the forum. In view of the Hong Kong SAR’s experience in the e-APP, Ms ’ of Justice jointly delivered Hong Kong s oral submission to the WTO Panel Financial Action Task Force Mutual Evaluation (see p.13). in the third party hearing at the WTO headquarters (see p.12). Chan was invited to participate in a moderated panel discussion Tonga, 22 October-2 November 2019 The forum discussed new technologies for improving the at the forum with delegates from the United States, Austria Guangzhou, 5-6 January 2020 • Acting Senior Government Counsel Sandy Shum of the International operation and effectiveness of the document authentication and Colombia. She talked about how the Apostille Convention • Secretary for Justice Teresa Cheng SC attended the Guangdong-Hong Law Division was a legal assessor of a seven member assessment team process carried out under the Apostille Convention. The operates in practice in the Hong Kong SAR and its experience Kong-Macao Greater Bay Area Judicial Case Seminar (see p.17). evaluating Tonga’s framework and effectiveness in combating money laundering and counter-financing of terrorism (see p.13). forum served as a valuable platform to discuss the further in implementing the e-Register. London, UK developments of the e-APP worldwide. • 11-22 November 2019 Public Prosecutors Cherry Ho, Glen Kong and Vladivostok, Russia, 15-16 October 2019 As one of the most successful HCCH Conventions, the Apostille Wilson Choi attended the Middle Temple Advocacy Course (see p.20). • The 3rd North-East Asian Multistakeholder Forum on Sustainable • 3-14 February 2020 Acting Senior Government Counsel Hikki Wong Development Goals (see p.16). Launched a decade ago, the e-APP is designed to ensure the Convention now has 118 Contracting Parties. China is actively attended the Middle Temple Advocacy Course (see p.19). effective and secure operation of the Apostille Convention in considering possible accession to it.
12 13 Global and Mainland Connections Global and Mainland Connections HKSAR PARTICIPATES IN THE THIRD COMBATING MONEY LAUNDERING PARTY HEARING OF THE WTO FOR THE US AND COUNTER-FINANCING OF TERRORISM: STEEL AND ALUMINIUM PRODUCTS TARIFFS CASES MUTUAL EVALUATIONS
The International Law Division of the Department of Justice has in the third party hearing at the WTO headquarters in Geneva, been providing close legal support to the Trade and Industry Switzerland. KOREA Department in respect of Hong Kong, China’s participation in Senior Public Prosecutor Jennifer Fok matters of the World Trade Organization (WTO). The participation reinforces the HKSAR Government’s ongoing attended the Financial Action Task Force efforts to uphold the HKSAR’s systemic interest in the correct Mutual Evaluation on Korea in Paris from One recent example concerns the tariff measures imposed interpretation of the WTO-covered agreements and its support 2 to 4 December 2019. Ms Fok was the by the United States on certain steel and aluminium products to the integrity of the multilateral trading system. legal and law enforcement expert in a in 2018 which have resulted in various dispute settlement team of five experts who evaluated the proceedings (United States – Certain Measures on Steel and Republic of Korea’s effectiveness in anti- Aluminium Products) brought by WTO Members. money laundering and counter-terrorist financing. This group of cases involves important questions of law under The attendees in the Financial Action Task Force Mutual Evaluation on Korea in Paris the WTO-covered agreements; in particular, the interpretation of the security exception clause under the General Agreement on Tariffs and Trade 1994 of the WTO. As a result, Hong Kong, Committed to combating money laundering and counter- TONGA China has actively participated as a third party in the dispute financing of terrorism, the HKSAR has been a member of the From 22 October to 2 November 2019, the team of specialists settlement proceedings of these cases, so that its interests Financial Action Task Force (FATF) since 1991. The FATF was from member jurisdictions of Asia/Pacific Group on Money and views can be fully taken into account by the WTO Panel established by the G-7 Summit in Paris in 1989 in response Laundering (APGML), an FATF-style regional body, visited Tonga established to examine the matter. to mounting concern over money laundering and terrorist for the evaluation. Other members of the assessment team were financing. legal, financial and law enforcement specialists from Australia, In addition to various written submissions provided to the WTO Macao SAR, Nepal, Papua New Guinea, Solomon Islands and Panel, on 18 November 2019, representatives from the Trade FATF was given the responsibility of examining money Vanuatu. Representatives of Hong Kong, China, from the Trade and Industry and Industry Department and the Department of Justice jointly Department, HKSAR’s Economic and Trade Office in Geneva and the laundering trends and reviewing action taken by members at delivered Hong Kong China’s oral statement to the WTO Panel Department of Justice the national or international level. It provides recommendations Acting Senior Government Counsel Sandy Shum of the and sets international standards of compliance. Members are Department’s International Law Division was the legal assessor also responsible for conducting mutual evaluations on the of a seven-member assessment team evaluating Tonga’s effectiveness of measures adopted by different member states framework and effectiveness in combating money laundering and compliance. and counter-financing of terrorism. 58TH ANNUAL SESSION OF AALCO In 2019, Hong Kong became the first jurisdiction in the During the onsite visit, the assessment team conducted a series The Asian-African Legal Consultative Organization (AALCO) The 59th Annual Session is scheduled to be held in Hong Kong Asia-Pacific region to achieve overall compliance in its of meetings with government authorities and representatives holds Annual Sessions where representatives from its Member in late 2020. effectiveness in anti-money laundering and counter-terrorist from the private sector which allowed assessors to gain an in- States pass resolutions on organisational and substantive financing in the fourth round evaluation by FATF. The depth understanding of Tonga’s anti-money laundering and ’ matters. They are joined by observers from non-Member States FATF s recognition was set out in a mutual evaluation report counter-financing of terrorism regime and its effectiveness. At ’ and international organisations to discuss issues of mutual by members of the FATF, adopted in the organisation s the end of the onsite visit, the assessment team presented the concern to the Asian-African region. Plenary Meeting in June last year. preliminary key findings to the authorities.
At the 58th Annual Session held in Dar es Salaam, Tanzania, JAPAN The evaluation process is ongoing. The findings will be finalised delegates exchanged views on matters including the role of Acting Assistant Director of Public Prosecutions Anthony Chau in a mutual evaluation report, and the adoption of the report will AALCO’s Regional Arbitration Centres, the investor-State attended the Financial Action Task Force Mutual Evaluation on be considered at the APGML’s upcoming plenary meeting. dispute settlement mechanism and other methods of dispute Japan in Tokyo from 28 October to 15 November 2019. This resolution in facilitating international trade and investment, onsite visit was part of the 4th round of Mutual Evaluations on peaceful settlement of disputes between States, international Japan’s effectiveness in anti-money laundering and counter- cooperation against cybercrime and the Law of the Sea. Karl Suen at the 58th Annual Session of AALCO terrorist financing.
14 15 Global and Mainland Connections Global and Mainland Connections
NORTH-EAST ASIAN MULTISTAKEHOLDER FORUM ON SUSTAINABLE DEVELOPMENT GOALS 12TH ASEAN-CHINA The 3rd North-East Asian Multistakeholder Forum on Sustainable In line with the spirit and intent of the SDGs, in particular Goal 16 PROSECUTORS-GENERAL CONFERENCE Development Goals was held in Vladivostok, Russia, on 15 and in promoting the rule of law and access to justice, the Department 16 October 2019. Acting Deputy Principal Government Counsel of Justice will officially launch the 10-year initiative“ Vision 2030 Director of Public Prosecutions David Leung SC (pictured Hong Kong. In March 2018, a“ Steering Committee to Tackle Venus Cheung (pictured below, centre) attended the forum on for Rule of Law” during Hong Kong Legal Week 2020. We look above, centre), Senior Assistant Director of Public Prosecutions Trafficking in Persons and to Enhance Protection of Foreign behalf of the Hong Kong SAR, an Associate Member of the forward to sharing our experiences and strengthening our Catherine Ko (above right) and Public Prosecutor Cherry Chong Domestic Helpers Hong Kong” was set up in Hong Kong. Economic and Social Commission for Asia Pacific (ESCAP). cooperation with international and local stakeholders in upholding (above left) attended the 12th ASEAN-China Prosecutors- Chaired by the Chief Secretary for Administration, membership our motto“ Rule of Law and Justice for All”. General Conference in Cambodia in November last year. of this interdepartmental steering committee comprises senior The forum was attended by around 150 government officials officers from the Department of Justice, Security Bureau and and stakeholders from the East and North-East Asia sub-region, The two-day conference – themed“ The Role of Prosecutors in other law enforcement agencies. Within the Department, there including China, Japan, Mongolia, North Korea, Russia, and Regionally Combatting Human Trafficking” – was held in Siem is a designated team of prosecutors, led by a Coordinator of South Korea. Participants shared their experience and best Reap from 6 to 7 November 2019. Human Exploitation Cases, who handle such cases. practice in implementing the 17 Goals of the United Nations’ 2030 Agenda on Sustainable Development (SDGs). The event was attended by top prosecutors from 13 The two-day event in Cambodia wrapped up with the signing jurisdictions including Cambodia, Vietnam, Myanmar, of a Joint Declaration by participating countries to enhance Hong Kong will co-host the 4th forum with ESCAP in November Malaysia, Thailand, Singapore, Indonesia, Brunei, Laos, cooperation, through extradition and official channels as well to mark the beginning of the Decade of Action for accelerating Hong Kong, Macau and the PRC. as unofficial means, direct contact mechanism and designated the implementation of SDGs by 2030. As a leading international international contact points. city, Hong Kong takes pride in having a strong rule of law and The Director of Public Prosecutions delivered a keynote speech an independent judiciary, under the principle of“ One Country, on the role of prosecutors in combatting human trafficking in Two Systems”, which are the cornerstones of its success.
16 17 Global and Mainland Connections Global and Mainland Connections DEPARTMENT OF JUSTICE HOSTS SEMINARS IN BEIJING
Two seminars were hosted by the Department of Justice in Beijing with the aim of promoting Hong Kong’s legal and dispute resolution services and facilitating communication and exchange between Hong Kong’s legal profession and Mainland enterprises.
On 25 November 2019, the Department organised a seminar entitled“ Is Hong Kong Still Irreplaceable?” Seven practitioners from the legal profession who participated in the seminar as moderators and speakers led discussions exploring the importance of Hong Kong’s role as a centre for deal-making and dispute resolution. Participants from various sectors including the legal profession, dispute resolution sector, government departments and affiliated organisations and enterprises attended the seminar.
On 26 November 2019, the Department of Justice co-organised a seminar on the legal challenges and coping strategies under
Secretary for Justice Teresa Cheng delivering her welcoming remarks at the Guangdong-Hong Kong-Macao Greater Bay Area Judicial Case Seminar the Belt and Road Initiative, with the Ministry of Commerce (MoC) and State-owned Assets Supervision and Administration Commission of the State Council (SASAC). The seminar was the first exchange event held under the tripartite communication platform initiated by the Department. Esteemed members of SECRETARY FOR JUSTICE’S DUTY Hong Kong’s legal profession and Mainland enterprises were VISIT TO GUANGZHOU invited to the seminar. The seminar was a solid step towards deepening closer cooperation among MoC, SASAC and the Moderators and speakers at the seminar entitled“ Is Hong Kong still Secretary for Justice Teresa Cheng SC, together with the participants’understanding of the three legal systems to the Department, and is set to have far-reaching significance. Irreplaceable?” Commissioner and Government Counsel of IDAR Office, benefit of the legal and judicial sectors in the Greater Bay Area. attended the Guangdong-Hong Kong-Macao Greater Bay Following the success of the seminar, it is planned that another Area Judicial Case Seminar on 6 January 2020. similar seminar will be held in the near future.
The seminar was organised by the High People’s Court of Guangdong Province with the aim of strengthening legal exchanges among the judiciary and legal profession of Guangdong, Hong Kong and Macao, pursuant to the PROSECUTING WASTE CRIMES Framework Arrangement on legal exchange and mutual learning in legal aspects between the HKSAR and Guangdong Acting Senior Public Prosecutor Lisa Go took part in a United aims to boost the operational activities and capacities of Province signed in September 2019 and contributing to the Nations-led meeting in Bangkok last December aimed at authorities involved in the fight against illegal trade and Outline Development Plan for the Guangdong-Hong Kong- tackling illegal trade and management waste in the Asia-Pacific management of waste. Macao Greater Bay Area. region and prosecuting waste crimes. Ms Go and 20 other representatives, comprising prosecutors, Judges, lawyers, experts and academics from the three The one-day consultative meeting organised by the United members of legal training institutes and environmental jurisdictions attended the seminar. The seminar was conducted Nations Environmental Programme under the WasteForce protection and customs agents in the region, took part at the in the form of mock trials carried out according to the project on 17 December 2019, aimed to identify the needs meeting at the United Nations Conference Centre where they respective modes of trial in the three jurisdictions under the Secretary for Justice and participants at the Greater Bay Area Judicial Case and challenges in the development of guidance material on shared their experience and gave feedback on the content of same set of material facts. The seminar significantly enhanced Seminar prosecuting waste crimes in the Asia-Pacific region. WasteForce the guidance material on prosecuting waste crimes.
18 19 Global and Mainland Connections Community Connections
Bridge from San Shak Wan Roundabout Secretary for Justice and volunteers making care packages of face masks and anti-epidemic supplies DOJ STAFF CLUB CAMPAIGN VISIT TO TO COMBAT COVID-19 THE HONG KONG-ZHUHAI-MACAO BRIDGE Contributing to Hong Kong’s outstanding community effort in staff participated either by volunteering or donating money. controlling the COVID-19 virus, earlier this year the Department The funds were used to purchase anti-epidemic supplies – On a sunny afternoon on 3 December 2019, a Department In addition to its vast length, the bridge has attracted much of Justice Staff Club donated some $120,000 worth of essential such as masks, hand sanitizers and supermarket coupons – of Justice team paid a visit to the Hong Kong-Zhuhai-Macao international attention for its innovative architecture. Built on supplies to help vulnerable members of society stay safe and which were packed into care packages by our volunteers. In Bridge, the world’s longest bridge and tunnel sea crossing, to an artificial island, the Passenger Clearance Building at the healthy during the pandemic. March and May, the care packages were donated to certain celebrate its successful completion. The visit brought together Hong Kong Port has an undulating roof that resembles the non-governmental organisations for distribution to the target colleagues across Government departments, including those surrounding ocean waves, and tree-like columns in the arrival The funds were raised by a special fundraising and volunteer recipients, who included the elderly, low-income families and who had worked behind the scenes to take the pioneering and departure halls. Its design posed not just engineering campaign organised in the Department, in which over 70 people with mental or physical disabilities. bridge from design to reality. challenges but legislative drafting challenges too: many aspects of the bridge had to be precisely regulated to ensure its security and smooth daily operation.
I remember the difficulties in understanding the structural details of the bridge and passenger clearance facilities at the drafting stage before construction. I was glad to see how our team’s hard work has been put into practice.
Government Counsel Vincent Wai
Department of Justice counsel attending the visit also toured the Passenger Clearance Building, Vehicular Clearance Plaza and San Shek Wan Roundabout as the glowing sun dipped Group photo at Passenger Clearance Building below the waters beyond the bridge. Care packages were donated to non-governmental organisations.
20 2121 Knowledge and Skill Enhancement Programmes Knowledge and Skill Enhancement Programmes OXFORD ADVANCED NATIONAL STUDIES COURSES
MANAGEMENT AND The Civil Service Training and Development Institute runs national studies courses for civils servants in cooperation with LEADERSHIP PROGRAMME prestigious universities in Mainland China.
Principal Government Counsel Dr James Ding from the Secretary for Justice’s Office attended the Oxford Advanced TSINGHUA UNIVERSITY Management and Leadership Programme (OAMLP) at the Said Assistant Principal Government Counsel Samuel Lee of the Civil Business School, University of Oxford, UK, from 6 to 26 October Division attended the 12-day National Studies Course at Tsinghua 2019. University from 21 October to 1 November 2019, along with civil servants from different Government departments. The programme has retained the number one position in the UK for five consecutive years in the Financial Times Executive (L to R) Cherry Ho, Glen Kong and Wilson Choi The course covered a wide range of interesting topics, including Education Rankings. The international programme was attended a comparison of the Mainland Constitution and the Hong Kong by 34 participants, from over 20 jurisdictions in Africa, Asia, Basic Law, a glimpse into modern Chinese history and the Australia and Europe, who are senior and experienced leaders Chinese political system, an overview of the Mainland economy, in the government, military and private sectors, including at MIDDLE TEMPLE finance and foreign affairs, the concept of the Smart City, and CEO, CFO, chairman and director levels of different banks and the Belt and Road and Greater Bay Initiatives. enterprises. ADVOCACY COURSE Public Prosecutors Cherry Ho, Glen Kong and Wilson Choi, It also included visits to the local People’s Court and a private and Acting Senior Government Counsel Hikki Wong of the Civil ATTACHMENT TO BEIJING company that is using artificial intelligence to develop a smart The programme has provided me with great learning beyond Division, attended the Middle Temple Advocacy Training Course transportation system and intelligent security system. The the legal field and I am grateful for the arrangement made by the in London respectively from 11 to 22 November 2019 and from JUSTICE BUREAU course concluded with a three-night visit of the city of Fuzhou, Department. I am most impressed by the innovative teaching 3 to 14 February 2020 as part of ongoing training provided to Fujian, to experience all the above from a local community (including a session on Leadership Lessons from Shakespeare) counsel within the Department. The intensive training course Senior Public Prosecutor Betty Fu was attached to the Beijing perspective. and the quality of my fellow classmates of diverse backgrounds, sees counsel attending workshops and seminars delivered by Justice Bureau ( 北京市司法局 ) (BJB) from 16 to 27 December 2019 as part of an arrangement under the cooperation who provided me with invaluable insights through studying and Queen’s Counsel and senior members of the legal profession The course provided a very good opportunity for us to return agreements signed by the Secretary for Justice with the interacting with them. in the UK. Participants are drilled in their advocacy skills in to student life, particularly those of us who left school in the last conducting both criminal and civil trials and applications. Justice Bureaus/Department of seven Mainland province and century! Attending lessons on the Tsinghua campus guarantees Principal Government Counsel municipalities. a breath of fresh air into your life. James Ding The personal feedback I received from experienced The attachment programme was tailor-made by the BJB and practitioners and judges helped improve my advocacy skills consisted of visits to the Beijing Lawyers Association, foreign Assistant Principal Government Counsel from head (thinking how to structure my questioning and and local law firms, the Beijing People’s Procuratorate, a Samuel Lee submissions) to toe (how I should stand while speaking - it forensic science laboratory, a public legal services centre, a really has an impact on the voice and pace!). Winning a bottle halfway house for rehabilitating inmates, and university visits. of wine for having one of the best written submissions was definitely a very welcome bonus. The Department of Justice and its Mainland counterparts have been providing training to officials to enhance mutual understanding of each other’s legal system and practice. Acting Senior Government Counsel Hikki Wong I learned immensely from the various visits through exchange and interaction with lawyers, judges and other legal personnel, especially gaining more insight into the infrastructure of the legal services provided under the umbrella of the BJB.
Dr Ding participated in the Great OAMLP Debate (an Oxford style debate) Senior Public Prosecutor during the programme Betty Fu
22 23 Knowledge and Skill Enhancement Programmes Useful information NOTABLE COURT JUDGMENTS JUDICIAL REVIEW CASES ON LEGAL RECOGNITION OF SAME-SEX COUPLES
Two landmark cases on the topic of same-sex relationships took Infinger Nick v. Hong Kong Housing Authority [2020] place recently in Hong Kong’s courts. Long a controversial topic 1 HKLRD 1188 in the Hong Kong community, the question of whether same-sex Mr Infinger challenged the Hong Kong Housing Authority’s couples should have the same rights and benefits as opposite- decision to disqualify him and his husband from renting a public sex married couples was the subject of heated legal debate. In housing flat. The public rental housing policy excluded same-sex the following judicial review cases, the Court of First Instance couples from applying for public rental housing as an“ ordinary considered same-sex relationships in the context of the right to family”. Mr Infinger argued that the exclusion constituted unlawful marriage and eligibility for public rental housing. discrimination based on sexual orientation. The Housing Authority argued that the aims of the policy were to ensure a fair and MK v. the Government of HKSAR [2019] 5 HKLRD 259 rational allocation of its scarce resources and to support existing In this important case, the city’s ban on same sex marriage was opposite-sex families and the institution of traditional families. challenged for the first time in court. The applicant, referred to as Group photo in the Campus of the Nanjing University “MK”, was a lesbian and Hong Kong permanent resident. She The Court of First Instance allowed Mr Infinger’s judicial review argued that the lack of a right to enter into a legalised same-sex application. While the court acknowledged that the aims of the relationship (such as marriage or civil union) under Hong Kong public rental housing policy were legitimate, it found there was NANJING UNIVERSITY laws violated her various rights (in particular the right to marriage) no evidence to show that excluding same-sex couples from the Government counsel were nominated by the Department of presentations. They gained insights from field trips to local protected under the Basic Law and the Hong Kong Bill of Rights. policy would make any real difference to the overall availability Justice to participate, together with other civil servants from government institutions and enterprises on how technology of public rental housing to traditional opposite-sex families (or Government bureaus and departments, in the National Studies could enhance public service delivery. They also learnt about The court dismissed MK’s judicial review application. Noting unmarried couples intending to form traditional families). The Course at Nanjing University from 13 to 19 October and 3 to 9 town planning and heritage conservation in Nanjing and visited that Hong Kong law has never recognized or permitted same- Housing Authority lodged an appeal to the Court of Appeal. November 2019. the Nanjing History Museum of the Ming City Wall. sex marriage, the court held that the right to marriage under the Basic Law and the Bill of Rights did not apply to same-sex For detailed summaries of the judgments of these cases Participants were given lectures by distinguished scholars on The course provided participants with an opportunity to deepen couples. It said that, while in principle legislation may be given and other cases from October 2019 to March 2020 which the political, social, economic and cultural aspects of China, their understanding of Mainland China and exchange ideas with an updated interpretation in appropriate circumstances, it did not have substantial media/public interest, please visit the and shared views on HKSAR Government policies at group civil servants in Hong Kong. find sufficiently strong or compelling evidence about changing or “Summary of Notable Judgments” at: https://www.doj.gov. contemporary social needs or circumstances that required it to hk/eng/public/casesynopses.html#k. reinterpret“ marriage” to include same-sex marriage. It followed that the Government was not obliged to provide an alternative legal framework to give same-sex couples the same rights and benefits enjoyed by opposite-sex married couples. MK lodged an appeal to the Court of Appeal.
Notable judgments refer to cases that involve important legal principles or issues of public interest. The summaries of notable judgments are prepared by the Department of Justice based on its own interpretation and understanding of the judgments of the courts concerned. The summaries are not legal advice and should not be relied upon by anyone as such. The summaries have no legal effect and are not intended to be cited as authorities of any kind. To fully understand the legal effect of the courts’ judgments, the whole judgments of the courts concerned should be looked at.
Copyright in this publication is vested in the Government of the Hong Kong Special Administrative Region. This publication may not be reproduced in whole or DoJ colleagues attending the course in part without the written permission of the Government of the Hong Kong Special Administrative Region.
24 2525 JUSTICE IN FOCUS ISSUE ONE 2020
dojhk.idar 普惠避免及解决争议办公室 IDAR O ce Page www.doj.gov.hk www.legalhub.gov.hk Online Version