THE DOJ NEWSLETTER 2018 ISSUE 1

Teresa Cheng Yeuk-wah SC was appointed Secretary for Justice of the Hong Kong Special Administrative In Hong Kong, the rule of law is the Region (HKSAR) Government on 6 January 2018. cornerstone of our legal system, Before her appointment as Secretary for Justice, she which in turn is the cornerstone of was a seasoned Senior Counsel in private practice our society. With this firmly in mind, with rich experience in international arbitration and mediation. The Secretary is highly regarded I gratefully accepted the appointment in the international legal profession, being one of as Secretary for Justice, with the founders and Chairman of the Asian Academy humility, courage and determination of International Law, a past Vice President of the International Council of Commercial Arbitration, to serve without fear or favour. past Vice President of the ICC International Court of Secretary for Justice Teresa Cheng Arbitration and past Chairperson of the Hong Kong International Arbitration Centre. The Secretary delivered her first public speech as With her extensive professional knowledge, the Secretary for Justice at the Ceremonial Opening Secretary was frequently engaged as arbitrator or of the Legal Year 2018 held on 8 January. In it she counsel in complex international commercial or stressed the importance of the rule of law in Hong investment disputes. She also has a distinguished Kong and called on all members of the community record of public service by serving over the years as to jointly bear the responsibility to respect, promote chairperson and member of a range of important and further the rule of law as a fundamental basis committees of the HKSAR Government. of our society. continued on page 2 DOJ Newsletter 2018 Issue 1 In This Issue continued from page 1

Features and Legal Updates The Secretary also offered her views on how to Secretary for Justice Teresa Cheng 1 resolve the differences in the approaches to the Commission of Inquiry into Excess Lead understanding and interpretation of laws by the in Drinking Water Legislation 2 different legal traditions in the Mainland and Hong Stamp Duty Change 2 Kong. She said exchanges of views in good faith Transition to HKeL Achieved 3 and, most importantly, mutual understanding of Commencement of Apology Ordinance 3 the reasons for the differences, inform an objective West Kowloon Mediation Centre legal analysis. With a common goal to implement a to Provide Mediation Services for Small Claims 4 particular policy, a legal solution can be achieved. DOJ Promotes Arbitration among SMEs to Resolve IP Disputes 4 In regard to the Department of Justice’s duty to Co-operation & Conferences conduct criminal prosecutions, the Secretary Secretary for Justice’s Activities 5 emphasized that the decisions about whether or Debate on Third-Party Funding in Arbitration 5 not to prosecute must be based on an objective and Renewal of Shenzhen Co-operative Arrangement 5 professional assessment of the available evidence Brexit Conference 6 and the law and be in accordance with the published Hague Judgments Project Coordination Meeting 6 Prosecution Code. Politics can have no role to play APEC Capacity-Building Workshop 7 in such decisions. FATF Mutual Evaluation of the Cook Islands 7 Hong Kong Maritime Week 2017 8 The Secretary acknowledged that some decisions Students Visit Justice Place 8 are hard to make, but the Department is duty bound Duty Visits & Professional Development 9-11 to make decisions that are legally correct and free from any interference, difficult or unpalatable Staff News though they may be. Welcome to New Counsel 12 Sake Tasting 12 Secretary for Civil Service's Commendation Award 12 Christmas Dinner and Revue 12 LEGISLATIVE UPDATES Reflections of Terence Wong 13 Staff Club Activities 13 COMMISSION OF INQUIRY INTO EXCESS LEAD Useful Information Key Figures and Statistics 14-15 IN DRINKING WATER Notable Judicial Decisions 16 LEGISLATION

Editorial Board The Waterworks (Amendment) Ordinance 2018 came into operation on 15 February 2018 and • Audrey Parwani (Prosecutions Division) • Becky Hung (Administration and Development implemented Commission recommendations about Division—also Board Secretary) clarifying the duties of licensed plumbers. The new • David Ng (International Law Division) provisions enhance the Director of Water Supplies’ • Jenny Law (Legal Policy Division) • Suzanne Lee (Civil Division) enforcement powers and extend the time limit for • Theresa Johnson (Law Drafting Division—also Board prosecutions. Chairperson) Special thanks to: STAMP DUTY CHANGE • Elizabeth Grindey (Law Drafting Division) • Eva Wong (Public Relations and Information Unit) The Stamp Duty (Amendment) Ordinance 2018 • General Translation Unit introduced a new flat 15% stamp duty rate on • Patrick Chan (Information and Technology Management Unit) certain residential property transactions with effect from 5 November 2016. Also, owners who sell a Important Notice property within 12 months may now apply for a As of 1 July 2018, Hong Kong e-Legislation is partial refund of the stamp duty paid. Previously, the only government legislation website. The refunds were only available to owners who sold Bilingual Laws Information System (BLIS) is discontinued. within six months.

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TRANSITION TO HKeL ACHIEVED

HKeL briefing session at the Central Public Library - December 2017

As of 1 July 2018, Hong Kong e-Legislation (HKeL) is as RSS feeds, email alerts, the side-by-side display the HKSAR Government’s only legislation website, of bilingual texts of legislation and the option to replacing the Bilingual Laws Information System download PDF copies of legislation. (BLIS) which had been in use since 1997. To help users transition to the new system, short HKeL marks a new milestone in the Government’s user guides can be found on the HKeL website at efforts to improve the public’s access to the law. https://www.elegislation.gov.hk/faq, and ongoing The most important feature of HKeL is that it gives HKeL briefing sessions for the Government and users access to copies of many frequently used items legal community are offered by the Department, of legislation with legal status which can be used the latest taking place in May and June. The DOJ is for official purposes, including court submissions. grateful for all constructive comments and intends The number of items with legal status continues to regularly upgrade HKeL to ensure it provides a to grow. As well as providing the core functions versatile and user-friendly platform for all users of available in BLIS, HKeL introduces new features such legislation.

PREPARATION FOR COMMENCEMENT OF APOLOGY ORDINANCE

DOJ organized a briefing session for relevant stakeholders and an in-house talk ahead of the coming into force of the Apology Ordinance (Cap. 631) on 1 December 2017. The briefing session held on 17 November 2017 was presented by the Hon Madam Justice Lisa Wong and Professor Iu Ting Kwok MH; both were members of the Working Group on Apology Legislation who had contributed significantly to the study resulting in the legislation. Professor Iu explained the genesis of the Ordinance and compared HKSAR’s legislation with that of other common law jurisdictions. Hon Madam An in-house talk was given on 27 November 2017 by Justice Wong then gave a concise account of the Senior Assistant Law Officer (Civil Law) (Mediation) application and implications of the new Ordinance. Ada Chen and Senior Government Counsel William Over 200 members of the public attended, including Liu of the Civil Division (both pictured) and included representatives from the Law Society of Hong Kong, a detailed discussion of the new provisions, Medical Council of Hong Kong and Office of the highlighting major features such as the protection Ombudsman. of statements of fact in apologies.

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WEST KOWLOON MEDIATION CENTRE TO PROVIDE MEDIATION SEVICES FOR SMALL CLAIMS

There is to be a pilot scheme under which the Secretary for Justice, DOJ commissioned the mediation services will be provided to litigants in construction of the West Kowloon Mediation Centre Small Claims Tribunal cases considered suitable near the West Kowloon Law Courts Building in by tribunal adjudicators. The scheme will promote 2017. The construction works were substantially more extensive use of mediation and support the completed in early 2018. Judiciary’s initiative to provide mediation services An independent mediation services provider will to tribunal litigants. be appointed to operate the pilot scheme and the Examples of cases where mediation may be mediation facilities in the centre. The provider suitable include disputes concerning water seepage will match referred cases with suitable mediators or leakage, renovation works, interior decoration and arrange and operate the venues and facilities works, and minor personal injuries where the for the conduct of mediation. Mediation will be commissioning of expert reports and calling of undertaken on a pro bono basis or at a nominal witnesses, and therefore increased costs, may be fee to the litigants. It is envisaged that mediation involved. services may be provided to parties of other Having consulted and obtained the support of suitable cases in addition to the cases referred by the Steering Committee on Mediation chaired by the tribunal.

DOJ PROMOTES ARBITRATION AMONG SMEs TO RESOLVE IP DISPUTES

With the enactment of the Arbitration (Amendment) Following opening remarks by the Director of Ordinance 2017, all Intellectual Property (IP) Intellectual Property Ada Leung JP and Secretary disputes (whether within or outside HKSAR) can for Justice Teresa Cheng SC, two distinguished IP now be arbitrated, and IP arbitral awards can be specialists, Winnie Tam SC and Charmaine Koo, enforced, in HKSAR. To promote the wider use of shared their expertise. They spoke on a range arbitration to resolve IP disputes among small of topics including the benefits of resolving IP and medium enterprises (SMEs), on 22 March the disputes by arbitration, arbitration procedures, and Intellectual Property Department and DOJ organized the remedies and relief that an arbitral tribunal a well-attended talk entitled “Arbitration—An may award. Effective Tool for SMEs to Resolve IP Disputes”.

... Through this amendment to the legislation, we believe that it can clarify the arbitrability of IP rights disputes, highlighting Hong Kong's attractiveness in conducting arbitration involving IP rights disputes.

Secretary for Justice Teresa Cheng

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SECRETARY FOR JUSTICE’S ACTIVITIES — OCTOBER TO MARCH

Mohamed Apandi and Rimsky Yuen Rimsky Yuen and Chen Yin of the CPC Shanghai Municipal Committee Malaysia, 6 to 8 November Shanghai, 17 to 19 November Visit to Kuala Lumpur to attend the opening ceremony of Visit to Shanghai to speak at the 9th Lujiazui Law In Style • Hong Kong organized by the Hong Kong Trade Forum themed “Belt and Road and internationalization Development Council (HKTDC). Former Secretary for of legal service”. The former Secretary met with Ministry Justice Rimsky Yuen SC also spoke at a thematic session of Justice officials, the Shanghai Municipal Government on “Legal Risk Management: Key to International Trade and the Shanghai Municipal Bureau of Justice to and Investment”, co-organized by the HKTDC and DOJ enhance mutual co-operation and exchanges. to promote HKSAR as a legal and dispute resolution services centre. The former Secretary met with the Beijing, 22 to 23 December then Malaysian Attorney General Mohamed Apandi to Visit to Beijing to attend the group deliberation meeting exchange views on the legal system and related matters, of the 31st session of the 12th National People’s Congress and also visited the Kuala Lumpur Regional Centre for Standing Committee concerning the co-location Arbitration (now Asia International Arbitration Centre) arrangement at the West Kowloon Station of the and Sharia Law Court. Guangzhou-Shenzhen-Hong Kong Express Rail Link.

DEBATE ON THIRD-PARTY RENEWAL OF SHENZHEN FUNDING IN ARBITRATION CO-OPERATIVE ARRANGEMENT Former Secretary for Justice Rimsky Yuen SC met with the Vice Mayor of Shenzhen Municipality Gao Zimin on 12 October 2017 and renewed the Co-operative Arrangement on Legal Matters for another five years. The arrangement will continue to strengthen co-operation on legal matters and provide a robust exchange platform for the two cities’ government departments and legal professions. The arrangement also emphasizes the support for HKSAR as an international legal and dispute resolution services centre in the region, as well as the promotion of exchanges Secretary for Justice Teresa Cheng and co-operation among legal, arbitration, mediation and On 13 March 2018, the Hong Kong Arbitration Center related professionals from the two places. of the China International Economic and Trade Arbitration Commission (CIETAC) hosted the “Debate on Third-Party Funding in Arbitration” with the support of the DOJ at Justice Place. The Secretary for Justice Teresa Cheng SC delivered a keynote speech highlighting the new legal framework for third-party funding, including the relevant legislation passed in June 2017. Gao Zimin and Rimsky Yuen 5 DOJ Newsletter 2018 Issue 1 DOJ HOSTS BREXIT CONFERENCE

On 2 December 2017, the Department held a one- SAR (pictured left), and featured two sessions of panel day conference on the legal implications of Brexit. discussion by overseas and Hong Kong experts. Attended by leading figures of the British and Hong The keynote speech was delivered by Lord Pannick Kong legal communities, the conference focused on QC (pictured right) who commented on the landmark the “Impact of Brexit on the Development of Common decisions of the High Court of England and Wales and UK Law, Dispute Resolution and Judicial Co-operation in Supreme Court in R (Miller) v Secretary of State for Exiting Civil and Commercial Matters”. the European Union. Other speakers included the Right It opened with welcoming remarks from the former Honourable Lord Justice Hamblen of the Court of Appeal Secretary for Justice Rimsky Yuen SC and Andrew of England and Wales and Honourable Justice Anselmo Heyn, British Consul General to the HKSAR and Macao Reyes of the Singapore International Commercial Court.

HAGUE JUDGMENTS PROJECT COORDINATION MEETING IN GUANGZHOU

James Ding (4th from R, front row) and Melody Hui (4th from R, 2nd row)

On 27 October 2017, Deputy Law Officer Dr James international convention on the recognition and Ding and Senior Government Counsel Melody Hui of enforcement of foreign judgments relating to civil or the International Law Division attended the Hague commercial matters under the Judgments Project of Judgments Project Coordination Meeting organized the Hague Conference on Private International Law. in Guangzhou by the Ministry of Foreign Affairs of the Representatives from the two SARs participate in the People’s Republic of China, with support from Jinan negotiations as part of the Chinese delegation. University. “The tripartite Coordination Meeting provides A coordination meeting among representatives from an excellent opportunity for us to deliberate on the Mainland, Hong Kong and Macao is held regularly the issues that will be discussed at the Special to discuss issues of common interest and concern Commission Meeting of the Judgments Project,” in relation to the ongoing negotiation of a proposed Ms Hui said. 6 DOJ Newsletter 2018 Issue 1 ILD ORGANIZES APEC CAPACITY-BUILDING WORKSHOP IN PAPUA NEW GUINEA

James Ding (centre, front row) and Queenie Ho (5th from R)

Deputy Law Officer Dr James Ding, with the assistance Delegates and experts from APEC member economies of Government Counsel Queenie Ho, (both of the and international organizations gathered to discuss International Law Division) organized a two-day using modern technology for cost-effective and speedy capacity-building workshop on the “Use of Modern dispute resolution to help foster economic growth Technology for Dispute Resolution and Electronic and cross-border trade for micro, small and medium Agreement Management (particularly Online Dispute enterprises. “Undeniably, it took a lot of effort for us to Resolution)”. It took place in Port Moresby, Papua organize the workshop. But it was worth it for the very New Guinea, on 3 and 4 March 2018. constructive outcome which could help make a positive change in the APEC region,” Ms Ho commented.

FINANCIAL ACTION TASK FORCE VISITS COOK ISLANDS FOR MUTUAL EVALUATION REPORT

Human Lam (4th from R), with other team members and the Commissioner of Cook Islands Financial Supervisory Commission (Louise Wittwer), head of Financial Intelligence Unit (Phil Hunkin) and Solicitor- General (David James)

Public Prosecutor Human Lam was part of an eight- years. The financial assessors, from Samoa and China, member team of specialists to visit Rarotonga, Cook examined the islands’ financial systems and controls, Islands, to evaluate the islands’ effectiveness in while the financial intelligence assessors from Fiji combating money laundering and counter-financing and Australia focused on whether the islands’ law of terrorism across 11 key areas. enforcement agencies and financial intelligence units The visit—from 20 November to 1 December were prioritizing resources, including by making 2017—was organized by the Financial Supervisory good use of intelligence received from their foreign Commission and Financial Intelligence Unit of the counterparts. Cook Islands and involved about 40 meetings with The specialist team wrapped up its visit by presenting government and private sector representatives. preliminary key findings in an exit report, which is Ms Lam and Tonga’s Director of Public Prosecutions expected to be finalized in a mutual evaluation report were the legal assessors who looked into the number of to be adopted at the plenary meeting of the Financial prosecutions brought and the number of restraint and Action Task Force in Nepal in July this year. confiscation orders obtained in the islands in the past five The visit was also reported in the local press. 7 DOJ Newsletter 2018 Issue 1

HONG KONG MARITIME WEEK 2017

Wesley Wong speaking on maritime arbitration in Hong Kong at Maritime Week

On 20 November 2017, Solicitor General Wesley The event was one of a series staged during Hong Wong SC participated as a speaker in the forum Kong Maritime Week 2017 jointly organized by the “Reorienting Hong Kong Maritime Arbitration: A Hong Kong Maritime and Port Board, Hong Kong Super-Connector in the Belt and Road and Great Shipowners Association and Hong Kong Maritime Bay Area initiatives”, convened to discuss how Hong Museum. It aimed to unite and showcase the Kong can take advantage of the Belt and Road and Hong Kong maritime industry as a strong cluster, Great Bay Area initiatives to become a regional raise the community’s awareness of the economic maritime hub and a regional maritime arbitration contributions of the city’s maritime and port centre. During the forum, Mr Wong also spoke industries, and promote Hong Kong as a preferred about the Department’s role in promoting maritime base for operating maritime businesses. arbitration in Hong Kong.

STUDENTS VISIT JUSTICE PLACE

Students viewing the cannon replica in the grounds of Justice Place. The West Wing of Justice Place was formerly the location of the Murray Battery which was part of Hong Kong's coastal defence.

On 15 March 2018, DOJ welcomed its first group of Antiquities Advisory Board, Justice Place is where school students on a guided visit of Justice Place. DOJ is now headquartered. Thirty-six Secondary 4 The student visits, available on the third Thursday students from Ning Po No. 2 College were briefed on of the month, operate as a pilot scheme allowing the history of the former Central Government Offices public interpretation of places of heritage value at the Function Hall before being taken on a 1.5-hour in the Main Wing and East Wing of Justice Place. tour of its architectural and heritage features. Designated a Grade 1 historic building by the

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DUTY VISITS AND PROFESSIONAL DEVELOPMENT

CIVIL LAW TALKS

Talk on the rights of prisoners Talk on sexual orientation discrimination “Contemporary Issues in “Sexual Orientation Public Law: The Constitutional Discrimination” and the Rights of Prisoners and the relevant development of Implications of the Carltona English and Strasbourg Principle” was the subject of jurisprudence were the topics a seminar on 18 October 2017 explored by Monica Carss-Frisk by Richard Clayton QC of 7 QC of Blackstone Chambers, Bedford Row, UK. Mr Clayton— UK, on 12 December 2017. a leading silk in public law Ms Carss-Frisk represented the and human rights and co-author of the Law of Director of Immigration in QT v Director of Immigration Human Rights—observed that despite a number of [2017] 5 HKLRD 166 where the Court of Appeal held important challenges having been made in HKSAR that the Director’s refusal to grant a dependant visa in relation to prisoners’ rights, the number of judicial to QT as a dependant of her same-sex civil partner reviews on the subject, as compared with the UK, was constituted indirect discrimination. relatively small. Mr Clayton shared his insights with The presentation noted that while access to same-sex reference to English and European jurisprudence. marriage was not required by the European Convention In relation to the Carltona principle which concerns on Human Rights, a recent Strasbourg decision had delegation of administrative power, he pointed out upheld a complaint of failure to grant access to some that the scope of and rationale for the principle was form of legal recognition (not necessarily marriage) for recently considered by the UK Supreme Court in same-sex couples. Ms Carss-Frisk observed that some R (Bourgass) v Secretary of State for Justice [2016] decisions of the Privy Council, the UK Supreme Court and AC 384. In brief an official must satisfy a rationality Strasbourg had held that unmarried same-sex couples test and demonstrate that (s)he is not so junior that were comparable to married couples such that the no reasonable minister would allow the official to justification for differing treatment had to be considered. exercise the power.

Talk on directors’ powers Talk on Companies Ordinance On 10 November 2017, On 22 November 2017, Dr Michael Furness QC of Stefan Lo, Senior Assistant Wilberforce Chambers, UK, Law Officer (Civil Law) gave a seminar on “Directors’ (Commercial)(Acting) of the powers and improper Civil Division, shared his purposes” in light of the UK knowledge of the Companies Supreme Court Judgment Ordinance “Rewrite” Eclairs Group Ltd v JKX Oil with DOJ colleagues. He [2015] UKSC 71. The seminar summarized the key reforms, examined the doctrine of the proper purpose of including changes to a company’s constitution, powers in the context of company law and the share capital and the capital maintenance doctrine, exercise of directors’ powers; the evolution of the as well as directors’ duty of care reforms. He also doctrine before and after Eclairs; and the applicability highlighted some of the more controversial topics of the doctrine in HKSAR. Mr Furness remarked that that were covered in the Rewrite process, such as since HKSAR courts had yet to deal expressly with the the debate over the “headcount” test for approval of proper purpose of directors’ powers, it was very likely a company scheme of arrangement by members or that they would refer to the principles laid down in creditors of the company. Eclairs when the issue arose.

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International Law Talk by Dr Xu Hong National Studies Deputy Law Draftsman Fanny Ip and Senior Assistant Director of Public Prosecutions Paul Ho attended the National Studies Course for senior directorate officers at the Chinese Academy of Dr Xu Hong and Rimsky Yuen Governance in Beijing from 29 October to 4 On 15 December 2017, at the invitation of former November 2017. Three Secretary for Justice Rimsky Yuen SC, Dr Xu Hong, Fanny Ip in Beijing Civil Division counsel Director-General of the Department of Treaty and also visited the Mainland: Senior Government Counsel Law of the Ministry of Foreign Affairs of the People’s Agnes Chan attended the China Studies Course at Peking Republic of China, delivered an international law University from 10 to 26 October; Government Counsel talk in Justice Place to Government officials on Sandy Hung attended the National Studies Course at Jinan “Hot Issues of International Law and the Latest University from 5 to 11 November; and Senior Government Trend”. Dr Xu shared his insightful observations on Counsel Suen Sze-yick was attached to the Shanghai a broad range of international law issues and the Justice Bureau from 20 November to 1 December 2017. increasingly significant role played by China in the arena of international rule-making, as well as the importance of further enrichments to the practice of international law under “One Country, Two Systems”.

Seminar on the Convention on Contracts for the International Sale of Goods

Suen Sze-yick (L) at the Shanghai International Arbitration Centre

Middle Temple Advocacy Course Senior Government Counsel Carmen Poon of Civil Division and Public Prosecutor Joe Hui of Prosecutions Division (pictured) attended the Middle Temple Advocacy Course in (L to R) Law Officer (International Law) Paul Tsang, London in November 2017. In addition Mr Faria and Professor Reyes to their daytime lectures and evening The International Law Division organized a seminar workshops, Counsel visited criminal and civil courts to on the United Nations Convention on Contracts for learn about legal practice in the Crown Court and County the International Sale of Goods (CISG) for public and Court in London. “The most memorable part of the course private sectors at Justice Place on 17 October 2017. José was the bail and mitigation exercises at the Blackfriars Angelo Estrella Faria, Senior Legal Officer and Head of Crown Court,” Ms Poon recalled. “The judge asked us the Technical Assistance Section of the United Nations to take turns being the advocate and judge so we could Commission on International Trade Law (UNCITRAL), see from the judge’s perspective.” gave a presentation on the benefits and challenges in the Despite the notoriously gloomy implementation of CISG in common law jurisdictions. November weather, Ms Poon and Anselmo Reyes SC, Professor of Legal Practice of the Mr Hui found the course extremely Faculty of Law of the University of Hong Kong, also helpful in enhancing their advocacy participated in the seminar as a commentator. skills and understanding of the UK legal system.

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Criminal Advocacy Course US National Animal Cruelty Prosecution Conference

Some seven Public Prosecutors and six Legal Trainees attended the Prosecutions Division’s latest Criminal Advocacy Course from 5 February to 27 April 2018.

The course, which runs twice a year, is an intensive, Public Prosecutors Elisa Cheng and Zena Yuen 12-week in-house training programme which aims to (pictured above) attended the 7th National Animal equip fledgling prosecutors with practical, on-the-job Cruelty Prosecution Conference in Oregon, USA, training in prosecuting criminal cases. organized by the Association of Prosecuting Attorneys Attendees receive three weeks of lectures delivered from 15 to 17 November 2017. by senior prosecutors within the Division, followed by The conference brought together different two weeks of mock court sessions at Harcourt House stakeholders from the judiciary, law enforcement where they are drilled on their advocacy skills. Then agencies and prosecuting agencies, as well as animal the excitement begins when the novice prosecutors protection groups, to exchange views on tackling and are attached to a Magistrates’ Court for seven weeks prosecuting cases of animal cruelty. The Chief Justice to prosecute a range of criminal cases, from drugs to of the Oregon Supreme Court and senior District assaults to traffic cases. The first two weeks of their Attorneys from different states were among guest court attachment are supervised by an experienced speakers who spoke on a range of topics including prosecutor, who is on hand to give practical advice investigation, evidence collection and retention, tips and tips to help the apprentices build their skills and for prosecuting animal cruelty cases, how to "follow confidence, and so enable them to prosecute cases the money" in animal cruelty cases, and how to deal on their own for the remainder of their attachment. with and seek help from different stakeholders.

Other Official Visits

to exchange views and their experiences on investigating and fighting money laundering and terrorist financing. The workshop, held in Shenzhen from 11 to 12 January 2018, was jointly organized by the Asia/Pacific Group on Money Laundering and the Eurasian Group. The event was attended by some 90 delegates representing 32 delegations.

Denise Chan (R) • Senior Assistant Director of Public Prosecutions • Senior Assistant Director of Public Prosecutions Robert Lee attended the Seventh Session of the Maggie Yang and Assistant Director of Public Conference of the State Parties to the United Prosecutions Denise Chan, attended a two- Nations Convention against Corruption in Vienna, day workshop for judges and prosecutors Austria, from 4 to 10 November 2017.

1 1 DOJ Newsletter 2018 Issue 1 WELCOME TO NEW COUNSEL

The Hong Kong Government Counsel Association welcomed and experience about legal careers in the public service. DOJ’s new legal recruits during Friday evening drinks in Among those welcomed were the largest ever intake January. Some 60 colleagues shared their aspirations of 20 Legal Trainees and the new Secretary for Justice.

SAKE TASTING SECRETARY FOR CIVIL SERVICE'S COMMENDATION AWARD

Secretary for the Civil Service Joshua On 27 March 2018, the Hong Kong Government Counsel Law presents the Association organized a sake tasting at the DOJ mess award to Bessie conducted by Ayuchi Momose, a sake sommelier Leung appointed as “Sake Samurai” by Japan’s Sake Brewers In November 2017, Bessie Leung, Senior Clerical Officer Association. The 27 participants not only acquired a good (Personnel) 2 of the Administration and Development basic knowledge of sake, but also sampled five types Division, was among 100 officers who received the 2017 of selected sake. “I am very pleased to have taken part Secretary for the Civil Service's Commendation Award because I’ve learnt a great deal,” said Christine Wong, for outstanding performance. For over 40 years, Ms Government Counsel of the Civil Division. “In just one Leung worked in the general and personnel registries hour, I learnt that sake is best consumed fresh and should handling mainly appointment matters, including otherwise be stored in the fridge, and that exposing the recruiting all counsel and para-legal grade staff. During bottle to the light must be avoided.” The association has her career, she demonstrated consistently exemplary organized a range of community-building events over performance and received high praise for her friendly the years, from hiking and art jamming to visiting the character and expertise in her field. DOJ warmly Customs & Excise Department’s Dog Unit. congratulates Ms Leung on her prestigious award.

CHRISTMAS DINNER AND REVUE The Christmas Dinner and Revue took place at the Officers’ Mess of the Customs and Excise Department on 8 December 2017. Attending the dinner for the last time as the Secretary for Justice, Rimsky Yuen SC gave a well-received speech expressing his appreciation of colleagues.

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REFLECTIONS OF TERENCE WONG, LEGAL TRAINEE

On joining DOJ in 2017 as a Legal Trainee (Solicitor), I first spent six months in the Civil Litigation Unit of the Civil Division. Here I had wide exposure to different tribunals and boards which was enlightening because my law school training had focused much more on the laws and procedure applicable to Courts. Reviewing a particular tribunal's decisions and subsequently observing a real case before that tribunal were rewarding experiences. During my time in the Civil Litigation Unit, I also contributed to research about Terence Wong (3rd from L) with S J and colleagues the constitutionality of homosexual offences, a topic of interest to me since learning about the William Roy to object or not to object? That is the question. I find Leung case in my school days. trial work very exciting. I am now working at a Magistrates’ Court for the I am thankful to my colleagues, all of whom are very Prosecutions Division and this has provided training helpful and patient in teaching and sharing. I am in trial advocacy—and plenty of chances to respond learning so much and look forward to further training to unexpected challenges on the spot! For example, and encounters in DOJ.

STAFF CLUB ACTIVITIES

Spring Dinner - March 2018

Workshop on Flower Arrangement for the Chinese New Year - January 2018

Snake Dinner - November 2017 Christmas Party - December 2017

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KEY FIGURES AND STATISTICS Full details are available at https://www.doj.gov.hk/eng/about/stat.html.

STAFF ESTABLISHMENT (as at 31 December 2017)

DIVISION DIRECTORATE NON-DIRECTORATE Government Other Government Para-legal Other Counsel Staff counsel staff# Staff

Secretary for Justice's Office - 1 1 - 14 Civil Division 24+1* - 150 56 136 International Law Division 7 - 19 4 13 Law Drafting Division 15+1* - 29 26 61 Legal Policy Division 11 - 38 8 33 Prosecutions Division 27 - 116 136 223 Administration & Development Division - 4 1 - 206 Sub-total 84+2* 5 354 230 686 TOTAL 89+2* 1 270 # Court Prosecutors, Law Translation Officers and Law Clerks * Supernumerary posts

PERFORMANCE INDICATORS

CIVIL DIVISION 2016 2017 Number of pieces of legal advice given 14 902 15 387 Number of contracts, tenders and other legal documents drafted / 656 692 vetted Total number of current civil litigation cases 35 356 36 778 Number of civil proceedings instituted by government 1 756 1 582 Number of civil proceedings instituted against government 1 196 1 707 Civil litigation cases with hearing(s) at all levels of court 2 248 2 063 (a) Court of Final Appeal 24 36 (b) Court of Appeal 114 28 (c) Court of First Instance 374 311 (d) Other Courts, Tribunals, Council and Boards 1 736 1 688

INTERNATIONAL LAW DIVISION 2016 2017 Number of international agreements initialled 3 3 Number of pieces of legal advice provided 15 090 19 821 Number of new requests dealt with in various categories of mutual 453 490 legal assistance

LAW DRAFTING DIVISION 2016 2017

Number of pieces of legal advice given 4 712 5 283

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Number of Bills gazetted 13 30 Number of pages of bilingual text (as gazetted) 1 334 3 068 Number of pieces of subsidiary legislation 196 187 Number of pages of bilingual text (as gazetted) 3 658 5 502 Number of Ordinances enacted 25 12 Number of pages of bilingual text of Committee Stage 214 61 Amendments incorporated into Ordinances

LEGAL POLICY DIVISION 2016 2017

Number of pieces of legal advice given

Overall legal policy matters 2 126 2 525 Basic Law matters 1 099 1 535 Human rights issues 842 897 Constitutional development and election matters 1 236 572 Mainland law and related matters 358 561

Total 5 661 6 090

PROSECUTIONS DIVISION 2016 2017

Number of pieces of legal advice given 13 462 13 790 Criminal cases with hearing(s) at all levels of court

(a) Court of Final Appeal: appeals concluded 119 101 (b) Court of Appeal: appeals heard 444 380 (c) Court of First Instance (Magistracy Appeals): appeals heard 657 620 (d) Court of First Instance: indictments 330 156 (e) District Court: charge sheets 1 208 1 157 (f) Magistrates Court: applications for review under section 104 of 47 20 the Magistrates Ordinance (Cap 227)

Caseload of Court Prosecutors 147 857 150 387

Percentage of criminal cases conducted in Chinese

(a) Court of Final Appeal and related applications 81% 92.9% (b) Court of Appeal 38.1% 40.3% (c) Court of First Instance (Magistracy appeals) 81.7% 77.3% (d) Court of First Instance 42.7% 30.4% (e) District Court 73.4% 73.6% (f) Magistrates' Courts 87% 84.5%

15 DOJ Newsletter 2018 Issue 1

NOTABLE JUDICIAL DECISIONS INVOLVING THE GOVERNMENT Listed below are notable judicial decisions from October 2017 to March 2018 in cases involving the Government. These cases either involve important or significant legal principles or issues of public interest, or are of general interest to the community. Links to these decisions in the Judiciary website can be found in the e-version of this Newsletter at http://www.doj.gov.hk/eng/public/pdf/2018/newsletter01_e.pdf

Case Case Name JUDICIAL REVIEW CASES Number (Subject Matter Involved) CACV 59/2016, COMILANG, MILAGROS TECSON AND (Date of 1. CACV 60/2016 ANOTHER v. DIRECTOR OF IMMIGRATION Decision or & CACV LUIS, DESIREE RANTE AND OTHERS v. Reasons for 149/2016 DIRECTOR OF IMMIGRATION Decision) 26 Mar 2018 DEMBELE, SALIFOU AND OTHERS v. CRIMINAL CASES DIRECTOR OF IMMIGRATION (Immigration - Right of foreign nationals to CACC 339/2016 HKSAR v. CHENG WING KIN, KU KA HO & 1. remain in Hong Kong with their family members 08 Mar 2018 CHAN KIN LOONG who are Hong Kong permanent residents) (Corrupt conduct at election) 2. FACC 8-10/2017 SECRETARY FOR JUSTICE v. WONG CHI 2. HCAL 146/2014 DATA KEY LTD v. DIRECTOR OF LANDS 06 Feb 2018 FUNG 02 Mar 2018 (Solatium - Policy on Ex-gratia Allowance) SECRETARY FOR JUSTICE v. LAW KWUN HCAL LUBIANO NANCY ALMORIN v. THE CHUNG 3. 210/2016 DIRECTOR OF IMMIGRATION SECRETARY FOR JUSTICE v. CHOW YONG 14 Feb 2018 (Immigration - Live-in Requirement for Foreign KANG ALEX Domestic Helpers) (Sentencing guidelines on unlawful assembly) HCAL CHAN HO TIN v. LO YING-KI ALAN (RETURNING 3. FACC 5/2017 HKSAR v. LEUNG HIU YEUNG 4. 01 Feb 2018 (Police officer as an officer of Legislative Council) 162/2016 OFFICER FOR NEW TERRITORIES WEST 13 Feb 2018 GEOGRAPHIC CONSTITUENCY) AND OTHERS 4. FACC 1/2017 HKSAR v. LAM TAN CHING PAUL (Validity of Nomination as a Candidate for the 25 Jan 2018 (Construction of “accompanied personal baggage” Legislative Council Election) in Import and Export Ordinance, Cap. 60) 5. FACC 4/2017 HKSAR v. CHEUNG WAI KWONG 5. FACV 11/2017 PCCW-HKT TELEPHONE LTD AND ANOTHER 22 Dec 2017 (Meaning of “using a vehicle” in Road Traffic 27 Dec 2017 v. THE SECRETARY FOR COMMERCE AND Ordinance, Cap. 374) ECONOMIC DEVELOPMENT AND ANOTHER (Levy of telecommunication licence fees - Trading CACC 364/2015 HKSAR v. CHUNG KA WAI 6. Funds Ordinance, Cap. 430) 17 Nov 2017 (Possession of an identity card relating to another) 7. FACC 2/2017 HKSAR v. FONG KWOK SHAN CHRISTINE 6. CACV Dr U v. THE PRELIMINARY INVESTIGATION 4 Oct 2017 (Freedom of expression in public gallery of 151/2016 COMMITTEE OF THE MEDICAL COUNCIL OF Legislative Council) 24 Nov 2017 HONG KONG AND ANOTHER (Jurisdiction of the Preliminary Investigation CIVIL CASES Committee to re-consider a complaint) HCIA 2/2016 COMMISSIONER OF INLAND REVENUE v. 1. HCAL 122/2014 SHAM WING KAN v. COMMISSIONER OF 3 Nov 2017 PANG FAI 7. 27 Oct 2017 POLICE ("Honorarium" payment) (Power of the Police to search the digital content of 2. CACV 204/2016 黎 v. 凌 mobile phones or similar digital devices seized on 1 Nov 2017 (Custody Order of child) arrest - s.50(6) of Police Force Ordinance, Cap.232) 3. FACV 1-9/2017 PENNY'S BAY INVESTMENT CO LTD v. 8. CACV 196/2016 BLENDORAN LTD v. APPEAL TRIBUNAL 16 Oct 2017 DIRECTOR OF LANDS 20 Oct 2017 (BUILDINGS) (Land Compensation - Marine Rights Extinguishment) (Building Appeal - Unauthorised building works) 4. HCMP 778, 780, SECRETARY FOR JUSTICE v. CHU PUI YAN 9. HCAL 55/2017 KWOK CHEUK KIN v. COMMISSIONER OF 783-784, 788- AND 8 OTHERS 19 Oct 2017 POLICE AND ANOTHER (Criminal contempt of court) 789, 791, 796, (Notification of a public meeting to the Police - s.2 798/2015 and s.7 of Public Order Ordinance (Cap.245)) 13 Oct 2017

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Published June 2018