Author Archives: hksar gov

The following is issued on behalf of the Judiciary:
 
     The following is the full text of the speech delivered by the Chief Justice of the Court of Final Appeal, Mr Geoffrey Ma Tao-li, at the Ceremonial Opening of the Legal Year 2019 today (January 14):
 
Secretary for Justice, Chairman of the Bar, President of the Law Society, fellow judges, distinguished guests, ladies and gentlemen,
 
     On behalf of the Hong Kong Judiciary, I extend a warm welcome to all of you to the Opening of the Legal Year. For the Judiciary, the occasion is an important one because it allows me to address the public on matters concerning Hong Kong’s legal system. This year I would like to say something about the process of the courts – in other words how cases are handled by the judges and the courts – and also to give an update on the proposed extension of the retirement ages for judges. I also want to say a few words about the proliferation of cases in our courts involving non-refoulement claims. The substantially increased workload on our courts resulting from this type of case has given and will continue to provide much pressure on our courts at all levels.
 
     This past year has seen courts at every level adjudicate on controversial cases. By “controversial” I am referring to those cases which emanate from controversial political or social events and over which members of the community have at times vastly different views. Many of such views are polarised seemingly without any common ground. It would be strictly speaking inaccurate to say that courts are caught in the middle when they are called on to handle such types of case. As I have said many times on previous occasions, it is no part of a court’s function or duty to adjudicate on political or social issues, nor economic ones, whether siding with one extreme or another, or finding some sort of middle ground to solve the community’s political, social or economic concerns. Rather, at all times, the court is concerned with dealing with one aspect and one aspect only: a resolution of the legal issues arising in the dispute before it. This is saying the obvious as far as judges and those who understand the law are concerned, but perhaps not always so obvious to some others in the community. Following some judgments in the type of controversial case to which I have been referring – whether civil or criminal – there have over the past year been criticisms levelled against decisions of the courts and sometimes even personally against judges. Such criticisms have ranged from the abusive, which are totally unacceptable, to imputations of political bias. There have even been comments along the lines that the rule of law in Hong Kong has somehow been undermined as a result of certain decisions of the courts, including judgments of the Court of Final Appeal.
 
     It is in this context that I regard it as desirable that something should be said about the process of the courts. I make it clear again that I am not saying that there should be no criticism of the courts and judgments; indeed, quite the contrary. Constructive criticism of the courts is always welcome and every person of course has the freedom of speech. Article 27 of the Basic Law guarantees the freedom of speech. However, my point is that criticism, in order to be effective and constructive, must be informed as opposed to being based on misunderstandings or inaccuracies.
 
     It is therefore important that everyone should be aware of just how the courts operate and handle cases. This applies to all cases, not only those which are controversial. A number of points need to be made and these embody the very characteristics of Hong Kong’s legal system.

1. First, the concept of an independent judiciary. In the discharge of their constitutional duties, judges are independent from any outside interference, and this includes the executive, the legislature and indeed anyone else.

2. This is reflected in the Basic Law, to which I have already referred and which, as the Preamble states expressly, ensures the implementation of the basic policies of the People’s Republic of China regarding Hong Kong. Article 2 of the Basic Law states that the National People’s Congress authorises Hong Kong to enjoy “independent judicial power, including that of final adjudication”. Article 19 repeats this, stating that the HKSAR (Hong Kong Special Administrative Region) is to be “vested with independent judicial power, including that of final adjudication”. Article 85 is clear in stating that Hong Kong courts “shall exercise judicial power independently, free from any interference”.

3. The independence of judges is also reflected in the Judicial Oath. This Oath is a solemn and sincere undertaking by every judge to uphold the Basic Law and to serve the HKSAR and administer justice “without fear or favour, self‑interest or deceit”. This oath is required to be taken under Article 104 of the Basic Law.

4. The necessity for an independent judiciary is self‑evident. When the rights of individuals are sought to be enforced against others, and particularly where the executive is involved, there can be no question of the courts being in any way partial towards anyone. The scales of justice are held evenly: they are not tilted in favour of or against any one when a legal dispute is being determined. 

     This is perhaps another way of emphasising the second point I wish to make: equality before the law. The statue of justice in Hong Kong – Themis at the top of the Court of Final Appeal Building – not only holds the scales of justice evenly, she is blindfolded. The courts which decide the disputes before them are not pre‑disposed in favour of or against any of the parties.  The Basic Law requires in Article 25 that all Hong Kong residents “shall be equal before the law”. Article 41 states that other persons shall enjoy the same rights and freedoms set out earlier, including Article 25. Everyone is entitled to equal treatment under the law, no one is above it. This is the essence of fairness and justice. The guarantee of equality exists not only in the Basic Law. Article 1 of the Hong Kong Bill of Rights, contained in the Hong Kong Bill of Rights Ordinance Cap. 383, refers to the entitlement to rights without distinction. Article 10 states in terms that “all persons shall be equal before the courts and tribunals”. The Bill of Rights is the embodiment in statute form of the provisions of the International Covenant on Civil and Political Rights (ICCPR). Article 39 of the Basic Law states that this Convention, as applied to Hong Kong, must be implemented in our laws. The ICCPR is an international instrument adopted by the General Assembly of the United Nations on December 19, 1966 and has 172 parties to it.
 
     Thirdly, in determining the outcome of cases, courts will look only to the legal issues involved; in other words, it is the law that governs the result in any legal dispute before the courts. Even where a case has political, social or economic ramifications, it is only the law that will be considered by the courts. This is what is meant by the exercise of judicial power when that term is used in those three articles of the Basic Law referred to earlier. The Judicial Oath also requires judges to serve Hong Kong “conscientiously, dutifully, in full accordance with the law”.
 
     A determination of the merits according to law means that no other consideration can influence the outcome of a case, and this includes those factors I have earlier identified: political, social or economic factors. I can put this no clearer than the way it was stated by the Court of Final Appeal in a judgment given almost one year ago (Note):
 
     “It is important to state at the outset of this judgment that it is not the role or function of the courts of the HKSAR to enter into this or any other political debate. Instead, the duty of the courts is, through an independent judiciary, to administer the law of the HKSAR, including the Basic Law, and to adjudicate on the legal issues raised in any case according to the law. In reaching a decision in any given case, a court exclusively applies the applicable legal principles to the relevant facts and thereby reaches a decision on the appropriate disposition of the case, explaining its reasons in its judgment. That is the sole task of this Court in these appeals.”
 
     Fourthly, no system of law is complete without a proper appellate structure. We have in Hong Kong what is known as a two-tier appellate system. Appeals from the Magistrates’ Courts first go to the Court of First Instance and then to the Court of Final Appeal. Appeals from the District Court go to the Court of Appeal and then to the Court of Final Appeal.  Appeals from the Court of First Instance go to the Court of Appeal and then to the Court of Final Appeal. The apex of the court structure is the Court of Final Appeal, in which is vested, according to Article 82 of the Basic Law, the “power of final adjudication”.
 
     The fifth important characteristic of Hong Kong’s legal system is transparency, a facet I had dealt with in last year’s speech. In order to begin to earn the community’s confidence in the legal system, the work of the courts has to be transparent. Here, the following points are relevant:

1. Court proceedings at every level are open to the public to observe apart from a few special situations that require a closed hearing such as matters involving children.The openness of court proceedings includes those controversial cases I have earlier referred to. Such cases are also widely reported by the press.

2. The reasoning of the courts in arriving at their decisions, in the form of written judgments, is open for the public to read. The judgments of the court reveal in great detail the precise steps taken by the court to reach its conclusion in any case. Whenever any member of the public asks the question “Why has the court made the decision it has?”, there is a ready and comprehensive answer to this question in the form of the written judgment. There is simply no need to speculate or guess just what was behind a court’s decision on any matter, much less assert that the judge might have taken into account factors extraneous to the law, such as political factors. Naturally, one can choose not to read a court’s judgment, but if one is to make a meaningful and informed comment about a court’s decision, it would surely be advisable as a starting point to learn just what were the reasons for the decision in the first place.

3. The written judgments of our courts are readily accessible whether in hard or soft form. Save in exceptional situations, they are available on the Judiciary’s website. 

     I have now dealt with five important facets of Hong Kong’s legal system.  The purpose of this exercise is to provide the necessary context within which to enable everyone properly to appraise and comment on the work of the courts, in particular those decisions of the courts on matters which greatly concern the community. We live in a complex society and a complex world in which people constantly and critically question the validity of decisions which affect them. Sometimes these decisions may not be easy to grasp. And when reasonable points of view of different people pull in opposite directions, the need to understand matters in proper context becomes even more pronounced.
 
     I cannot emphasise enough the necessity of having the community’s confidence in what we do. The significance of this lies of course not just in understanding that what the Judiciary does is of considerable relevance to the community, but more important it demonstrates the existence of the rule of law in operation in Hong Kong. There are perhaps few things that are more important to Hong Kong than our rule of law, and this is a feature of our community we must strive to maintain. As I mentioned at the outset when I assumed office over 8 years ago, this is my mission as Chief Justice.
 
     As the Judiciary prepares to face challenges this coming year, it is vital that the quality of judges remains high. Although we have a judiciary that is much respected – this has been the strong impression I have gained from the exchanges I have had with judges from other jurisdictions including the Mainland, the United Kingdom, Australia, New Zealand, Canada, Singapore and the USA – the maintenance of high standards is key to the proper administration of justice. I have earlier mentioned the confidence which I hope the community has in our legal system. This confidence is shared outside Hong Kong. One indication of this is the volume of cases dealt with in our courts. By world standards, the workload of Hong Kong judges is among the heaviest and the most complex. Many persons choose to litigate in the Hong Kong courts precisely because they have confidence in our legal system.
 
     What I have just said underlines the necessity of having the best quality judges in the Hong Kong Judiciary. I have in the past given details of measures we have implemented to try to attract the best candidates to join the Judiciary. One of the means to attract candidates of sufficiently high judicial and professional qualities – the criteria stipulated in Article 92 of the Basic Law – is to extend the retirement ages of judges at all levels of court.  As I mentioned last year, Hong Kong has unrealistically low retirement ages for judges by comparison with other common law jurisdictions. There is little doubt that an extension of retirement ages will greatly assist in both the recruitment of judges and also the retention of experienced judges.
 
     The proposed extension of retirement ages has widespread support from the Government, legislators and both branches of the legal profession. This support is to be welcomed and I am grateful for it. Of course, legislative amendments have to be made and the drafting exercise has reached an advanced stage. I sincerely hope that all necessary legislation will be passed and made effective by the middle of the year. This is very much in the public interest and for the good of the community.
 
     The final matter I wish to touch upon this evening is related to the heavy caseload I have earlier mentioned. Particularly in recent years, Hong Kong has seen an influx of persons who have made non‑refoulement claims, commonly known as torture claims. Hong Kong is subject to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Convention Against Torture or CAT.  When a person claims that there are substantial grounds for believing that he or she would be in danger of being subjected to torture or risk of cruel, inhuman or degrading treatment or punishment, persecution, etc, in another place, no party subject to the CAT can repatriate that person to that place. In recent years, the Government has had to deal with a very large number of such non‑refoulement claims. The process of dealing with such claims frequently involves the following: after the Immigration Department has processed an application, if an applicant is dissatisfied with the result, he or she may launch an administrative appeal to the Torture Claims Appeal Board. In the event that the Board rejects the appeal, what has turned out to be the usual course is then to seek relief by way of an application for leave to apply for judicial review to the Court of First Instance. If this is refused, the decision is then appealed to the Court of Appeal and from there, to the Court of Final Appeal.
 
     The volume of cases dealt with by the Court of First Instance and the Court of Appeal is high and this has resulted in much pressure put on these courts. The pressure is also felt in the Court of Final Appeal. All cases are carefully considered at each level of court, and as a result delays are perhaps inevitable. Additional resources will naturally be required but this alone cannot solve all the problems. For example, more judges will be needed and this is not just a matter of financial resources. Further, the deployment of manpower and resources to dealing with non‑refoulement claims will certainly have an adverse impact on how we deal with other cases and other judicial work. The Judiciary will be liaising with the Department of Justice with a view to exploring the possibility of introducing modest legislative amendments so as to facilitate a more efficient handling of such torture claims. Relevant stakeholders will of course be consulted. I hope that we can count again on the support of everyone.
 
     I end this year’s speech with an assurance to the community that all our judges at all levels are totally committed to those ideals I have endeavoured to articulate. Each is committed to the rule of law and to serving the community. Service to the community is a key element in the Judicial Oath and every judge abides by this solemn promise.
 
     I wish all of you and your families a fulfilling 2019 and happiness in the coming Year of the Pig.
 
Note: Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, at para. 5.

      

The following is issued on behalf of the Hospital Authority:

     The spokesperson for Princess Margaret Hospital (PMH) announced a Sentinel Event today (January 14) as follows:
 
     A 60-year-old male patient attended the Accident and Emergency Department of North Lantau Hospital for shortness of breath on November 27, 2018. He was transferred to the Medical ward of PMH on the same night for further management. On November 28, the patient was transferred to the Intensive Care Unit (ICU) for respiratory failure needing mechanical ventilatory and extracorporeal membrane oxygenation support. The patient was subsequently diagnosed to be suffering from Community-associated Methicillin-resistant Staphylococcus Aureus necrotising pneumonia.
 
     On January 3, computed tomography (CT) scanning revealed the patient had pneumothorax, multiple early liver abscesses and deep venous thrombosis. Anticoagulation medication (enoxaparin) was started for daily injection.
 
     On January 9, due to worsening in liver function, following discussions by the ICU and medical gastroenterology (GI) teams, liver biopsy was suggested by the GI team to rule out the possibility of bacterial, fungal and mycobacterium infection. At 3pm on the same day, the ICU administered enoxaparin as scheduled. At 5pm, the GI team proceeded with liver biopsy. Under normal circumstances, enoxaparin should be withheld for 24 hours before performing liver biopsy.
 
     Patient developed haemorrhagic shock at 8pm that night, needing blood product transfusion and stepping up of inotropic support. Contrast CT abdomen scanning revealed a large hemoperitoneum with active bleeding at the right hepatic lobe. The patient required radiological and surgical interventions for haemostasis three times subsequently.
 
     At around 5pm on January 11, the patient’s family was informed of the patient’s condition. At around 5am on January 12, the patient succumbed and was certified dead.
 
     The hospital was saddened by the incident and expressed deep condolences to the family of the patient. Necessary assistance will be provided as and when required.
 
     The hospital is very concerned about the incident, which has been categorised as a Sentinel Event. The incident has been reported to the Hospital Authority Head Office. A root cause analysis panel will be set up to look into the incident. Recommendations will be proposed by this panel to prevent the recurrence of similar incidents in future. The report will be submitted to the Hospital Authority within eight weeks. The incident has also been reported to the Coroner. read more

     The 12th Asian Financial Forum (AFF), co-organised by the Hong Kong Special Administrative Region Government and the Hong Kong Trade Development Council, opened today (January 14), gathering over 3 300 influential financial and business leaders as well as global policymakers and financial regulators from over 40 countries and regions to share their insights on the role of the financial services sector in shaping a sustainable and inclusive future.

     The theme of this year’s forum is “Creating a Sustainable and Inclusive Future”. Addressing the opening session of the AFF this morning, the Chief Executive, Mrs Carrie Lam, highlighted Hong Kong’s competitive edge and achievements in financial services, commenting that the financial industry, which contributed almost 19 per cent of Hong Kong’s gross domestic product in 2017, was well placed to serve the economy.

     While noting that the trade discord between the two largest economies in the world and uncertainties in other parts of the world had created considerable challenges ahead, Mrs Lam said she was confident that Hong Kong, by leveraging on its solid foundations and proactive policies, will turn some of those global challenges into opportunities.

     “Indeed, Hong Kong is a city built on finance and possesses the singular good fortune to create opportunities both with the Mainland and the world at large,” she said.

     To further demonstrate that Hong Kong is well placed to navigate through challenges, Mrs Lam added, “Our economy grew 3.7 per cent in the first three quarters of 2018. Economic growth for 2018 as a whole is forecast at 3.2 per cent, which is higher than the trend growth rate in the past decade for the second consecutive year. And our unemployment rate remains at a 20-year low of 2.8 per cent. In short, we are performing as well as can be expected given the uncertainties of the global economy. No less important, we are prepared for shifting economic and political tides.”

     The Financial Secretary, Mr Paul Chan, in his welcome remarks at the keynote luncheon, pointed out that the trade friction had created uncertainty and added downside risk to economic growth and increased volatility in financial markets. However, he said that Hong Kong, renowned as the freest economy in the world, will not adopt protectionism. He stressed that Hong Kong supported free trade and the multilateral trading system, as well as the free flow of capital, people and information, which is the cornerstone of Hong Kong economy.

     Mr Chan added that the Government is enhancing the regulatory regime and the resilience of the financial markets to help Hong Kong maintain financial stability amid the heightened external uncertainties.

     Speaking at the cocktail reception in the evening, Mr Chan introduced the Fintech Showcase, which was newly launched this year, noting that Hong Kong is well prepared to strengthen its financial and professional services which embrace the traditional and the innovative, the global and the local, the corporates and the start-ups.

     In the morning, the Secretary for Financial Services and the Treasury, Mr James Lau, chaired the plenary session on “Creating a Sustainable and Inclusive Future: Opportunities and Challenges”, during which he exchanged insights with finance ministers, regulators and leading figures of international financial institutions on how financial policies could help to overcome challenges and create a sustainable and inclusive future. Heavyweight speakers joining Mr Lau in this session were the President and Chairman of the Asian Infrastructure Investment Bank, Mr Jin Liqun; the Vice President of the China Banking and Insurance Regulatory Commission, Mr Wang Zhaoxing; the Minister of Finance of Malaysia, Mr Lim Guan Eng; the Minister of Finance of Luxembourg, Mr Pierre Gramegna; and the Minister of State at the Department of Finance with special responsibility for Financial Services and Insurance of Ireland, Mr Michael D’Arcy.

     In light of the latest developments in the Sino-United States (US) trade conflict, former President of the World Bank Group and former US Deputy Secretary of State, Mr Robert Zoellick, delivered a luncheon keynote speech sharing his insights into the Sino-US trade conflict, and analysed the current global economic trends and the long-term economic outlook.

     Before the luncheon, there was a panel discussion chaired by the Deputy Chief Executive of the Hong Kong Monetary Authority, Mr Eddie Yue. Speakers included the Chairman of the Dubai Financial Services Authority, Mr Saeb Eigner; the First Deputy Governor of Banque de France, Mr Denis Beau; the First Deputy Governor of the Bank of Russia, Mr Sergey Shvetsov; and member of the Executive Board of Deutsche Bundesbank, Mr Burkhard Balz. They exchanged views on how to manage the global financial risk and opportunities ahead.

     This year, there were four newly launched panel discussion sessions hosted by eminent entrepreneurs, financial regulators and academics. Representatives from the banking and financial services sector, start-ups and fintech and insurance companies engaged in in-depth discussions on a wide range of topical issues covering start-ups, financial innovation and risk management in Belt and Road infrastructure projects.

     In addition, to further promote the development of fintech, a FinTech Showcase was set up this year to allow international financial institutions and technology corporations to showcase innovative solutions to industry on-site. To provide a platform for investors and industry players to explore co-operation, the forum also comprises a deal-flow matchmaking session, InnoVenture Salon and Fireside Chat, focusing on a variety of subjects in fintech, including artificial intelligence, blockchain, regulatory technology and cyber security.

     This two-day forum will continue tomorrow (January 15), with a breakfast panel, a series of Innotalks and a keynote luncheon. Given the rapid development of the sharing economy, the keynote luncheon on the second day of the forum will feature the Head of the Sharing Economy Working Group, World Economic Forum Young Global Leaders, Ms April Rinne, who will talk about how the financial services sector could contribute to the development of the sharing economy.

            

     Following is the speech by the Secretary for Justice, Ms Teresa Cheng, SC, at the Ceremonial Opening of the Legal Year 2019 today (January 14):

Chief Justice, members of the Judiciary, Chairman of the Bar Association, President of the Law Society, distinguished guests, ladies and gentlemen,

     In the past year, our commitment to the rule of law has helped inform, augment and re-energise our work in confronting a range of challenges – from providing professional, impartial and independent deliverables, to promoting good governance and legality in governmental decisions and actions, and ensuring equal and fair opportunities for all.

PRC Constitution, Basic Law and common law of Hong Kong

     One fundamental aspect of the constitutional order of Hong Kong that is sometimes overlooked is that it is premised on both the Constitution of the People’s Republic of China (PRC) and the Basic Law of the Hong Kong Special Administrative Region (HKSAR). As the Court of Final Appeal stated in Democratic Republic of the Congo v FG Hemisphere Associates LLC (No. 1) (Note 1): “The HKSAR was established by the National People’s Congress (NPC) pursuant to Article 31 of the Chinese Constitution. It did so by promulgating the Basic Law on April 4, 1990 ….”

     The PRC Constitution has also been referred to in a number of important judgments, including those of the Court of Final Appeal. In one case, Sir Anthony Mason, non-permanent judge (NPJ), reminded us that the Basic Law “is a national law of the PRC, being an enactment of the National People’s Congress made in the exercise of legislative powers conferred upon the NPC by the PRC Constitution”. (Note 2) In another case, Lord Cooke of Thorndon NPJ referred to the Preamble of the PRC Constitution when dealing with the question of recognition of Taiwan court orders. (Note 3)

     That the PRC Constitution and the Basic Law together form the constitutional basis of the HKSAR cannot be seriously disputed, whether as a matter of law or fact. Like any other legal problem, the interpretation and extent of the application of the provisions of these two laws will be a matter that has to be analysed by applying the proper applicable law, and in context, in particular with Article 11 of the Basic Law in mind, so as to derive a legally correct answer.

     Another matter that cannot be disputed is that the common law is maintained and continues to develop in Hong Kong, as guaranteed by Article 8 of the Basic Law. One should appreciate that, here, the common law refers to the common law of Hong Kong. As pithily stated by Lord Millett NPJ in China Field Ltd v Appeal Tribunal (Buildings) (No. 2) (Note 4):

“… our judges must develop the common law of Hong Kong to suit the circumstances of Hong Kong. It is well recognised that the common law is no longer monolithic but may evolve differently in the various common law jurisdictions … [The Court of Final Appeal] will continue to respect and have regard to decisions of the English courts, but it will decline to adopt them not only when it considers their reasoning to be unsound or contrary to principle or unsuitable for the circumstances of Hong Kong, but also when it considers that the law of Hong Kong should be developed on different lines.”

     Writing extra-judicially, Sir Anthony Mason put it this way:

“The differences that distinguish the jurisprudence of the various common law jurisdictions are largely doctrinal. The variations in doctrine may be attributed, however, to different judicial responses to variations in the material circumstances and conditions of society in the various jurisdictions or to different judicial perceptions about particular societal values ….” (Note 5)

     Bearing in mind these basic jurisprudential notions allows us to appreciate the beauty of the common law – the ability to adapt to evolving circumstances in the development of a legal system that tailors to what is asked of it given the social, cultural and economic fabric of our society.

     Another major appeal of the common law, of which case law forms an indispensable part, is that detailed reasons, including the legal analysis and findings of fact, are set out in the judgments. Unfortunately, we have seen totally baseless, arbitrary and even malicious attacks on some of our judges simply because the outcome of particular cases was not to the liking of those making the attacks. Such acts and utterances are not to be tolerated and where evidence and circumstances justify, legal action will be taken.

     Careful reading and correct understanding of court judgments would often dispel any unwarranted misunderstanding. With a view to raising public awareness and assisting the public to better understand significant decisions of the courts, the Department of Justice has prepared summaries of judgments of notable cases with substantial media or public interest. They are made available on the department’s website shortly after the judgments are handed down. We hope that this initiative, together with the Hong Kong e-Legislation database which provides free access to all legislation of Hong Kong, would enhance accessibility of the law for the general public and foster better understanding of the law so as to encourage healthy and informed discussions.

Establishment of IDAR Office

     Our rule of law and common law system have together formed a solid foundation for Hong Kong’s status as the leading centre for international legal and dispute resolution services in the Asia-Pacific region. It is reported that “[t]o a majority of developing countries covered by the Belt and Road routes, Hong Kong believes it offers the promise of a mature and independent legal system and a neutral venue to resolve disputes arising between parties from the region’s complex political and legal cultures”. (Note 6) While it is also reported that the Department of Justice recently “has been more proactive in getting Hong Kong’s name out as a dispute resolution hub for Asia-related cases” (Note 7) and launched other initiatives, we should not be complacent about our existing competitive edge.

     Indeed we have not overlooked the keen competition posed by other jurisdictions in this region and beyond. No doubt, there is a pressing need for our legal practitioners and the Department of Justice to be more proactive and join hands to strengthen the interface between the local and international legal communities, thereby facilitating the export of our legal services, enhancing Hong Kong’s position as a leading legal and dispute resolution centre, and importantly, conveying the strength of our rule of law.

     To better cope with the challenges and to harness the additional opportunities offered by the Belt and Road Initiative and the Guangdong-Hong Kong-Macao Greater Bay Area plan, the Inclusive Dispute Avoidance and Resolution Office (IDAR Office) has been established within the Department of Justice, which will work directly under my steer.

     The establishment of the IDAR Office will help better co-ordinate and implement various initiatives that the department has been undertaking in the areas of dispute avoidance and resolution.

     The IDAR Office will pursue and conclude co-operation or partnership arrangements with other jurisdictions and international organisations. It will also organise, support or encourage a number of important international events and activities in Hong Kong, as well as raise the international profile of Hong Kong in deal making and dispute resolution through capacity building and promotional activities overseas.

     The IDAR Office’s objective is to facilitate access to justice and provide equal opportunities for people from all walks of life and for all sectors of the economy without boundary, advancing Goal 16 of the United Nations 2030 Sustainable Development Goals in this region and beyond.

     Goal 16 emphasises the promotion of peaceful and inclusive societies for sustainable development, the provision of access to justice for all and the building of effective, accountable and inclusive institutions at all levels. As President Xi Jinping explained, the United Nations 2030 Sustainable Development Goals are part of our national development strategies, and we should “promote coordinated advances in the economic, social and environmental fields, pursue inclusive development in keeping with our respective national conditions, and forge equal and balanced global development partnerships”. (Note 8)

Mediation

     The promotion of mediation has long been an important focus. Domestically, last year saw the milestone of the opening of the West Kowloon Mediation Centre and the implementation of a Pilot Mediation Scheme for Small Claims Tribunal and other suitable cases. At the cross-boundary level, the Mediation Mechanism for investment disputes established in accordance with the Investment Agreement under the framework of the Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA) was implemented in December 2018. The lists of mediation institutions and mediators mutually agreed by the two sides have been published.

     In light of the international trend and with the CEPA Mediation Mechanism in place, we have, together with the International Centre for Settlement of Investment Disputes of the World Bank Group and Asian Academy of International Law, launched a training course on investment law and investment mediation skills in mid-October 2018, which was the first in Asia. We plan to conduct further rounds of such training with the goals of building up a team of investment mediators in Asia and developing Hong Kong into an international investment law and international investment dispute resolution skills training base.

     The department is actively pursuing and formulating how to capitalise on Hong Kong’s strengths established over the years in mediation to better serve the local and international communities in light of the opportunities that are available under the Belt and Road Initiative and the Greater Bay Area plan.

Arbitration

     Turning to arbitration, the Code of Practice for Third Party Funding of Arbitration was issued on December 7, 2018. On the same day, a commencement notice to bring the relevant provisions of the Arbitration Ordinance into operation was gazetted. The new regime for third party funding of arbitration will come into operation on February 1.

Legal Hub

     All these advances in legal infrastructure are complemented by new physical infrastructure which supports dispute resolution and other legal services in a most tangible way. The renovation works for the Legal Hub at the West Wing of the former Central Government Offices and the nearby heritage-listed former French Mission Building are making good progress and due to be completed by the first quarter of this year and mid-2020 respectively.

LawTech

     Another important area of development is the use of technology in the provision of legal services. In 2016, the United Nations General Assembly observed that online dispute resolution (ODR) “can assist the parties in resolving the dispute in a simple, fast, flexible, and secure manner, without the need for physical presence at a meeting or hearing”. (Note 9) More recently, the Asia-Pacific Economic Cooperation (APEC) has responded to the call and is currently embarking on a project to establish an ODR platform with micro, small and medium-sized enterprises as major beneficiaries.

     The Chief Executive announced in her 2018 Policy Address that the Government supports the development by non-governmental organisations of a Belt and Road e-arbitration and e-mediation platform, so that Hong Kong will be able to provide efficient and cost-effective online dispute resolution services. The Government will provide funding for the cost of development of this meaningful project. We are now working very closely with the stakeholders in the development of the ODR platform and also taking the lead in the ODR project under APEC.

Law Reform Commission’s study on cybercrime

     While we seek to reap the benefits of new technologies, the challenges posed by them cannot be ignored. The Law Reform Commission is well aware of the rapid developments in this area, as well as the potential for new technologies to be exploited for carrying out criminal activities. Therefore, a sub-committee has recently been formed to study the topic of cybercrime.

Mutual legal assistance with the Mainland

     I am pleased to announce that the long-awaited arrangement between Hong Kong and the Mainland on reciprocal recognition and enforcement of judgments in civil and commercial matters will be concluded and signed in the near future.

     With the generous and expert assistance from the legal sector, efforts have also been stepped up in the department to pursue the study of establishing a legal mechanism between Hong Kong and Mainland for mutual recognition of and assistance in insolvency and corporate debt restructuring matters. Other measures and arrangements that will enhance Hong Kong’s position as a dispute resolution hub are being actively discussed with promising feedback.

Legal profession

     Since taking the office, I have been eager to engage and hear from the legal profession. Through quarterly meetings with the Bar Association and the Law Society, we have established a channel of communication for frank and open exchange of issues of concern to legal practitioners. The department’s briefing out policy has been under review since our first meetings and some fruitful outcome has been achieved last year, with emphasis on the exploration of opportunities for young practitioners. Measures to facilitate wider use of Hong Kong’s high-quality, renowned and professional legal services will continue to be pursued.

Conclusion

     None of the progress achieved in the past year would have been possible without the dedication and devotion of my colleagues in the department and the contributions of legal practitioners in private practice. I express my sincerest gratitude to them for their efforts. In these efforts to strengthen the rule of law, the department that I am privileged to lead is honoured to be part of Hong Kong’s strong, robust and professional legal fraternity. Like you, we approach the challenges ahead with resolve, humility and professionalism. We are eager to join hands in driving this work into the future.

     Thank you very much.

Note 1: (2011) 14 HKCFAR 95, at [307].
Note 2: Lau Kong Yung & Others v Director of Immigration (1999) 2 HKCFAR 300, at 344.
Note 3: Chen Li Hung & Others v Ting Lei Miao & Others (2000) 3 HKCFAR 9, at 25.
Note 4: [2009] 5 HKLRD 662, at [78] and [81].
Note 5: Sir Anthony Mason, “The Common Law”, in “Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong”, eds. Young and Ghai (Cambridge University Press, 2014), p. 338.
Note 6: See “Does Hong Kong Have What It Takes to Be Asia’s Arbitration Hub?” (November 25, 2018) (www.law.com).
Note 7: Ibid.
Note 8: See President Xi Jinping’s speech at the APEC CEO Summit on November 17, 2018 (www.xinhuanet.com/english/2018-11/17/c_137613904.htm).
Note 9: Resolution adopted by the United Nations General Assembly on December 13, 2016 (A/RES/71/138). read more

     The Chief Executive, Mrs Carrie Lam, will depart for Guangzhou in the afternoon tomorrow (January 15) to meet with the Secretary of the CPC Guangdong Provincial Committee, Mr Li Xi, and the Governor of Guangdong Province, Mr Ma Xingrui, to discuss various areas of collaboration between Hong Kong and Guangdong in relation to the development of the Guangdong-Hong Kong-Macao Greater Bay Area.

     Government officials joining the visit include the Secretary for Constitutional and Mainland Affairs, Mr Patrick Nip; the Secretary for the Environment, Mr Wong Kam-sing; the Secretary for Home Affairs, Mr Lau Kong-wah; the Secretary for Transport and Housing, Mr Frank Chan Fan; the Secretary for Food and Health, Professor Sophia Chan; the Director of the Chief Executive’s Office, Mr Chan Kwok-ki; and the Under Secretary for Commerce and Economic Development, Dr Bernard Chan.

     Mrs Lam will return to Hong Kong in the evening on the same day. read more