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The New Legal Order in Hong Kong

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The New Legal Order in Hong Kong The New Legal Order in Hong Kong Edited by Raymond Wacks # m *. # * f & ^ _ _ HONG KON G UNIVERSIT Y PRES S Hong Kong University Press 14/F Hing Wai Centre 7 Tin Wan Praya Road Aberdeen Hong Kong © Hong Kong University Press 1999 ISBN 96 2 209 507 0 (Hardback ) ISBN 96 2 209 508 9 (Paperback ) All rights reserved. No portion of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage or retrieval system, without permission in writing from the publisher. Sewn On-line Orderim http://www.likupress.org Printed in Hong Kong by Caritas Printing Training Centre. Contents Preface i x Contributors x i Table of Cases x v Introduction 1 Raymond Wacks PART 1: TH E CHANGIN G LEGAL AND CONSTITUTIONAL OKDEK 1 * Th e Content of the Common Law in Hong Kong 9 Peter Wesley-Smith 2 Th e Development of Constitutionalism in Hong Kong 3 9 Benny Tai Yiu-ting 3 Th e Form and Substance of Legal Interaction Between Hong Kong 9 5 and Mainland China: Towards Hong Kong's New Legal Sovereignty HLFu VI Contents 4 Inter-Jurisdictiona l Co-operation in Criminal Matters: Extradition, 13 3 Mutual Legal Assistance, Prisoner Transfer to and from the HKSAR Janice Brabyn 5 Th e Central-HKSAR Legislative Relationship: A Constitutional 16 3 Assessment Li Yahong 6 Enforcemen t o f Arbitral Awards Between Mainland China and 18 3 Hong Kong: Before and After Reunificatio n Xian Chu Zhang 7 Th e Status of Customary International Law in the Municipal Law 21 1 of the HKSAR Jianming Shen PART 2: TH E NEW ECONOMIC ORDER 8 Stoc k Market Crises and Insider Dealing in Hong Kong: 23 7 The Need for Regulatory Reform Katherine Lynch 9 Internationalisatio n of Public Financial Law in Hong Kong 28 9 Joseph J Norton & Douglas WArner 10 Publi c Accountability and the Executive: The Role of the 31 5 Government in the Stock Market Anne Carver and John Whitman 11 Compan y Law in Hong Kong: Charting a New Course? 34 1 Anna Tarn 12 Revenu e Law in Hong Kong: The Future 36 9 Richard Cullen 13 Recen t Reforms and Developments of Mainland Chinese and 40 5 Hong Kong Maritime Law Felix WH Chan Contents til 14 Hon g Kong's Law of Contract: The Last Thirty Years 43 5 Judith Sihombing 15 Employmen t and Trade Union Law: Ideology and the Politics 47 7 of Hong Kong Labour Law Wilson W S Chow and Anne Carver PART 3: SHIFTIN G SOCIAL VALUES 16 Confucia n Lega l Culture and Its Modern Fate 50 5 Albert HYChen 17 Th e Mapping of Narratives in Hong Kong's Post-Colonial Family 53 5 Disputes Anne S Y Cheung 18 Hon g Kong Family Law in the Last Decade of British Rule: 56 3 Towards a New Identity Bart Rwezaura 19 Equa l Opportunities: A New Field of Law for Hong Kong 59 5 Carole J Petersen 20 Internationa l Environmental Law: How Green Is the Future? 62 7 Ro da Mushkat 21 Preservin g the System: The Educational Dimension 64 9 Stephen Nathanson Index 671 Contributors Douglas Arner is Si r John Lubbock Research Fellow in International Capita l Markets at the University o f London's Centre for Commercial Law Studies and is an honorary lecturer in the Faculty o f Law of the University o f Hong Kong. He has published several articles in the field o f international financial law , and is a legal consultant to the European Bank for Reconstruction and Development. Janice Braby n i s a Lecturer i n th e Department o f La w a t the Universit y o f Hong Kong. She has published a number of articles in the fields o f criminal law and evidence and has a special interest in the subject of extradition. Anne Carve r i s a Senio r Lecture r i n th e Departmen t o f Professiona l Lega l Education at the University o f Hong Kong. Her principal areas of expertise are commercial and company law. Her book Hong Kong Business Law is now in its third edition. Felix Wai-hon Chan is an Assistant Professor in the Department of Professional Legal Education at the University o f Hong Kong. He was formerly i n practice with a major Hon g Kong fir m o f solicitor s an d specialises i n commercial an d shipping litigation. Albert Hung-yee Che n is a Reader in Law and Dean of the Faculty of Law of the Universit y o f Hong Kong. He has published widel y in th e field o f public Xll Contributors law. His most recent books include An Introduction to the Legal System of the People's Republic of China, (1998) an d The Rule of Law, Enlightenment and the Spirit of Modern Law (1998). He is co-editor of General Principles of Hong Kong Law (1999) and of the Hong Kong Law Journal. Anne Shann-yue Cheung is an Assistant Professor i n the Department o f Law at the University of Hong Kong. Her research deploys cultural and sociological perspectives in exploring legal issues and has published in the fields of language rights an d cultural questions. Sh e is currently pursuing a doctorae a t Stanfor d University on the subject of press freedom an d self-censorship. Wilson Wai-shu n Cho w i s a n Assistan t Professo r i n th e Departmen t o f Professional Lega l Educatio n a t th e Universit y o f Hon g Kong . H e practise d briefly a s a solicitor. His research interests include trade union and labour law and he is editor of Hong Kong Management and Labour: Continuity and Change (1999). Richard Cullen is Professor an d Head of the Department of Business Law and Taxation at Monash University in Melbourne. In 199 8 he was a Visiting Fellow at City University o f Hong Kong Law School. He has published widely in the areas of tax law, public law and media law. Fu Hualing is an Assistant Professor in the Department of Law at the University of Hong Kong where his principal teaching and research interests are criminal justice and law and administration. He is co-author o f Media Law in the PRC (1996). Li Yahong is a Research Fellow in the Department of Law at the University of Hong Kong. She has published a number of articles on various aspects of Hong Kong, Chinese and American law. Katherine Lync h is a n Associate Professo r i n the Department o f Law a t the University o f Hon g Kon g wher e sh e specialises i n corporat e la w an d disput e resolution. She previously practised in the area of commercial and civil litigation in Canada . Sh e ha s publishe d i n th e fiel d o f propert y law , compan y law , international arbitratio n an d dispute resolution. She is co-author o f Hong Kong Company Law: Cases, Materials and Comments (1997). Roda Mushkat is a Reader in Law in the Department of Law at the University of Hong Kong where she specialises in public international law and has published widely in the areas of refugee law, international environmental law, and human rights, includin g One Country, Two International Legal Personalities: The Case of Hong Kong (1997). Contributors xm Stephen Nathanson is an Associate Professor in the Department of Professional Legal Educatio n a t th e Universit y o f Hon g Kong . H e ha s designed ! several professional lega l educatio n programme s i n Canad a an d England , an d i s a Professor a t the College o f Law in London where he assisted in the design of the firs t Ba r Vocationa l Course . H e has publishe d widel y o n th e subjec t o f curriculum reform, includin g What Lawyers Do: A Problem-solving Approach to Legal Practice (1997). Joseph Norton is Sir John Lubbock Professor o f Banking Law at the University of London' s Centr e fo r Commercia l La w Studies , an d Jame s L Wals h Distinguished Faculty Fellow and Professor o f Law at the SMU School of Law in Texas. He is currently a Vice-Chancellor's Distinguishe d Facult y Professo r at the University o f Hong Kong. He has published more than 30 books and 100 articles in the field o f banking, finance and business law. Carole Peterse n i s a n Associat e Professo r i n th e Departmen t o f La w a t th e University o f Hon g Kong . Sh e ha s publishe d article s i n th e fiel d o f huma n rights law , women and the law, and anti-discrimination law. She is a member of the editorial committee of the Hong Kong Law Journal. Bart Rwezaura is a Senior Lecturer in the Department of Law at the University of Hong Kong. He has published widely in the field o f family la w and change, on children's rights and culture, and is a member of the editorial committee of the Hong Kong Law Journal. Shen Jianming is Visiting Professor o f Law at St.
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