Dr. Pui-yin LO is a barrister-at-law in private practice in Hong Kong and affiliated with The University of Hong Kong. His practice covers civil, criminal and public law litigation in Hong Kong. He has also provided expert reports on Hong Kong law. He speaks and writes Chinese (Cantonese and Putonghua) and English. Phone: +852 28651803 Address: Room 1705, 17/F Marina House, 68 Hing Man Street, Shau Kei Wan HONG KONG.
The Invisible Constitution in Comparative Perspective, 2018
The authors undertake a comparative Study of the visible and invisible bases of constitutional re... more The authors undertake a comparative Study of the visible and invisible bases of constitutional review and proportionality analysis in the Chinese Special Administrative Regions of Hong Kong and Macau, both of which are established and governed pursuant to a Basic Law drafted under the leadership of the Chinese Central Authorities and sharing similar provisions in the systems of governance, including that of the protection of fundamental rights.
This Chapter, from the first edited volume in the Asian Comparative Constitutional Law series, se... more This Chapter, from the first edited volume in the Asian Comparative Constitutional Law series, sets out the cause and process in the drafting of the Hong Kong Basic Law between 1985 and 1990. The discussion in the Chapter shows that whilst the drafting of the Hong Kong Basic Law was led and dominated by the Central Authorities of the People's Republic of China, it was a relatively open and interactive exercise during which the Central Authorities were receptive to opinions from Hong Kong residents and also from the British administration, which continued to govern Hong Kong at the time and had an interest in the successful implementation of the Sino-British Joint Declaration that would restore Hong Kong in 1997 to the resumption of exercise of Chinese sovereignty, for the purpose of giving the product the best possible chance in guaranteeing Hong Kong's stability, prosperity, and capitalist economy and way of life. This Chapter also highlights 'deferred matters' in the Hong Kong Basic Law as drafted, including a progressive framework for developing the political system towards the 'ultimate goal' of electing the Chief Executive and the legislature by 'universal suffrage' and a designation on the Hong Kong authorities the task of enacting legislation safeguarding national security, which have turned out to be the causes of the current situation of the Hong Kong Special Administrative Region of the People's Republic of China.
Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in ... more Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL) in mid-2020, been enforced as an "offence endangering national security" within the meaning of the HKNSL by the National Security department of the Hong Kong Police Force and the Department of Justice vigorously. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the HKNSL to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines the several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of the sedition-like offences from common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the HKNSL could be curtailed or circumscribed: (i) Sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights and accordingly there is nothing to be revived for enforcement; (ii) Remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalizing speech and expressive acts merely and plainly for their ascribed "intentions"; and (iii) Several of the seven categories of "seditious intention" have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the HKNSL's system of enforcement against persons alleged to have committed acts having those categories of "seditious intention".
One of Hong Kong's key strength since China resumed exercise of sovereignty over the territor... more One of Hong Kong's key strength since China resumed exercise of sovereignty over the territory has been its adherence to the Rule of Law under a common law based legal system. Hong Kong's judges and lawyers have played a major part in the maintenance of this system and its core values. This manuscript challenges the expectation on the part of various social actors in Hong Kong that judges and lawyers of this Special Administrative Region of China will be a source of resilience against Chinese encroachments of the rights and other values that define or distinguish Hong Kong's systems and way of life. It also asserts that there are now signs in Hong Kong pointing to the backsliding of elements that are needed to main the Rule of Law.
The first Chief Justice of the Hong Kong Special Administrative Region (HKSAR) under resumed Chin... more The first Chief Justice of the Hong Kong Special Administrative Region (HKSAR) under resumed Chinese sovereignty retired in August 2010. Under Chief Justice Andrew Li Kwok-nang’s stewardship, the courts of the HKSAR acquired the power of judicial review of legislation through its authority to interpret the Basic Law of the HKSAR of the People’s Republic of China. This article aims to unpack the approaches towards constitutional interpretation and constitutional adjudication adopted by the HKSAR courts between 1997 and 2009. It claims that the HKSAR courts, especially the Court of Final Appeal, have evolved to be both internationalist and consequentialist in constitutional adjudication while maintaining a perspective on constitutional interpretation that is non-progressive. In so doing, the HKSAR courts institutionally underpin the promotion of the HKSAR’s autonomy, the protection of minorities from the excesses of government and the preservation of the HKSAR’s common law based legal system.
The People's Republic of China is, according to its Constitution, "a unitary multinational state"... more The People's Republic of China is, according to its Constitution, "a unitary multinational state" based on the socialist system. The Constitution also allows the state to establish "special administrative regions" in light of "specific conditions." This provision backs the principle of "One Country, Two Systems" that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a "Basic Law" prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese "Central Authorities" and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that "One Country, Two Systems" with not be "distorted," that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of "One Country, Two Systems" in the two regions has been "developmental," with the law serving the interests of the "Centre" under the leadership of the Communist Party of China.
Journal of International and Comparative Law, 2018
Hong Kong, a former British colony, has been a Special
Administrative Region (SAR) of the People’... more Hong Kong, a former British colony, has been a Special Administrative Region (SAR) of the People’s Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law. Applying common law principles, the HKSAR courts have conceptualised “separation of powers” as a feature of the Basic Law — the HKSAR’s constitutional instrument — and the Rule of Law in Hong Kong. This article demonstrates how HKSAR courts have used “separation of powers” to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-à-vis other branches of government. Towards the end of this article, the judicial narrative that embraces “separation of powers” is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the “separation of powers” in the HKSAR’s political system and advocates instead “executive-led government”.
The Standing Committee of the National People’s Congress adopted on 7 November 2016 an interpreta... more The Standing Committee of the National People’s Congress adopted on 7 November 2016 an interpretation on the oath-taking provision of art 104 of the Basic Law of the Hong Kong Special Administrative Region. This Interpretation has been regarded in Hong Kong as an unfortunate and unnecessary intervention into the HKSAR Government’s legal proceedings for the disqualification of two legislators from their offices (the Leung Yau proceedings). Although the judgments of the Court of First Instance and the Court of Appeal in the Leung Yau proceedings had considered this Interpretation to be “unquestionably binding”, it was Mr Justice Thomas Au’s judgments of 14 July 2017 disqualifying four more legislators from their offices and of 13 February 2018 dismissing Chan Ho Tin’s election petition, respectively, that it was sought to fuse this Interpretation into Hong Kong’s judicial and legal processes. This article examines this trio of cases and claims that with the insistence or acquiescence of the appellate courts, no attempt was made to apply this Interpretation consistently with values underlying Hong Kong’s common law-based legal system under the Basic Law. Rather, “faithful transcription” and “patriotic administration” had been engaged in. The judgments expose a probable conflict in judicial duty which, if not resolved properly, might undo the constitutional jurisprudence the HKSAR courts have constructed since their establishment.
This is Chapter 1 of my book entitled Judicial Construction of Hong Kong's Basic Law: Courts, Pol... more This is Chapter 1 of my book entitled Judicial Construction of Hong Kong's Basic Law: Courts, Politics and Society after 1997 (HKU Press, 2014). The book is based on my PhD thesis, with expansions to cover comprehensively the chronological development of Hong Kong's constitutional jurisprudence since 1997 and in depth the more recent Court of Final Appeal judgments. The chapter sets out the themes of the book, how they have been addressed in the book, and my findings on them.
This Book Review reads Tarunabh Khaitan's A Theory of Discrimination Law (2014) against Hong Kong... more This Book Review reads Tarunabh Khaitan's A Theory of Discrimination Law (2014) against Hong Kong's jurisprudence applying the constitutional guarantee of equality before the law and considers how Hong Kong's judges and legal practitioners may benefit from the structured approach Khaitan has suggested in the book in the litigation and adjudication of discrimination.
The Invisible Constitution in Comparative Perspective, 2018
The authors undertake a comparative Study of the visible and invisible bases of constitutional re... more The authors undertake a comparative Study of the visible and invisible bases of constitutional review and proportionality analysis in the Chinese Special Administrative Regions of Hong Kong and Macau, both of which are established and governed pursuant to a Basic Law drafted under the leadership of the Chinese Central Authorities and sharing similar provisions in the systems of governance, including that of the protection of fundamental rights.
This Chapter, from the first edited volume in the Asian Comparative Constitutional Law series, se... more This Chapter, from the first edited volume in the Asian Comparative Constitutional Law series, sets out the cause and process in the drafting of the Hong Kong Basic Law between 1985 and 1990. The discussion in the Chapter shows that whilst the drafting of the Hong Kong Basic Law was led and dominated by the Central Authorities of the People's Republic of China, it was a relatively open and interactive exercise during which the Central Authorities were receptive to opinions from Hong Kong residents and also from the British administration, which continued to govern Hong Kong at the time and had an interest in the successful implementation of the Sino-British Joint Declaration that would restore Hong Kong in 1997 to the resumption of exercise of Chinese sovereignty, for the purpose of giving the product the best possible chance in guaranteeing Hong Kong's stability, prosperity, and capitalist economy and way of life. This Chapter also highlights 'deferred matters' in the Hong Kong Basic Law as drafted, including a progressive framework for developing the political system towards the 'ultimate goal' of electing the Chief Executive and the legislature by 'universal suffrage' and a designation on the Hong Kong authorities the task of enacting legislation safeguarding national security, which have turned out to be the causes of the current situation of the Hong Kong Special Administrative Region of the People's Republic of China.
Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in ... more Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL) in mid-2020, been enforced as an "offence endangering national security" within the meaning of the HKNSL by the National Security department of the Hong Kong Police Force and the Department of Justice vigorously. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the HKNSL to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines the several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of the sedition-like offences from common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the HKNSL could be curtailed or circumscribed: (i) Sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights and accordingly there is nothing to be revived for enforcement; (ii) Remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalizing speech and expressive acts merely and plainly for their ascribed "intentions"; and (iii) Several of the seven categories of "seditious intention" have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the HKNSL's system of enforcement against persons alleged to have committed acts having those categories of "seditious intention".
One of Hong Kong's key strength since China resumed exercise of sovereignty over the territor... more One of Hong Kong's key strength since China resumed exercise of sovereignty over the territory has been its adherence to the Rule of Law under a common law based legal system. Hong Kong's judges and lawyers have played a major part in the maintenance of this system and its core values. This manuscript challenges the expectation on the part of various social actors in Hong Kong that judges and lawyers of this Special Administrative Region of China will be a source of resilience against Chinese encroachments of the rights and other values that define or distinguish Hong Kong's systems and way of life. It also asserts that there are now signs in Hong Kong pointing to the backsliding of elements that are needed to main the Rule of Law.
The first Chief Justice of the Hong Kong Special Administrative Region (HKSAR) under resumed Chin... more The first Chief Justice of the Hong Kong Special Administrative Region (HKSAR) under resumed Chinese sovereignty retired in August 2010. Under Chief Justice Andrew Li Kwok-nang’s stewardship, the courts of the HKSAR acquired the power of judicial review of legislation through its authority to interpret the Basic Law of the HKSAR of the People’s Republic of China. This article aims to unpack the approaches towards constitutional interpretation and constitutional adjudication adopted by the HKSAR courts between 1997 and 2009. It claims that the HKSAR courts, especially the Court of Final Appeal, have evolved to be both internationalist and consequentialist in constitutional adjudication while maintaining a perspective on constitutional interpretation that is non-progressive. In so doing, the HKSAR courts institutionally underpin the promotion of the HKSAR’s autonomy, the protection of minorities from the excesses of government and the preservation of the HKSAR’s common law based legal system.
The People's Republic of China is, according to its Constitution, "a unitary multinational state"... more The People's Republic of China is, according to its Constitution, "a unitary multinational state" based on the socialist system. The Constitution also allows the state to establish "special administrative regions" in light of "specific conditions." This provision backs the principle of "One Country, Two Systems" that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a "Basic Law" prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese "Central Authorities" and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that "One Country, Two Systems" with not be "distorted," that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of "One Country, Two Systems" in the two regions has been "developmental," with the law serving the interests of the "Centre" under the leadership of the Communist Party of China.
Journal of International and Comparative Law, 2018
Hong Kong, a former British colony, has been a Special
Administrative Region (SAR) of the People’... more Hong Kong, a former British colony, has been a Special Administrative Region (SAR) of the People’s Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law. Applying common law principles, the HKSAR courts have conceptualised “separation of powers” as a feature of the Basic Law — the HKSAR’s constitutional instrument — and the Rule of Law in Hong Kong. This article demonstrates how HKSAR courts have used “separation of powers” to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-à-vis other branches of government. Towards the end of this article, the judicial narrative that embraces “separation of powers” is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the “separation of powers” in the HKSAR’s political system and advocates instead “executive-led government”.
The Standing Committee of the National People’s Congress adopted on 7 November 2016 an interpreta... more The Standing Committee of the National People’s Congress adopted on 7 November 2016 an interpretation on the oath-taking provision of art 104 of the Basic Law of the Hong Kong Special Administrative Region. This Interpretation has been regarded in Hong Kong as an unfortunate and unnecessary intervention into the HKSAR Government’s legal proceedings for the disqualification of two legislators from their offices (the Leung Yau proceedings). Although the judgments of the Court of First Instance and the Court of Appeal in the Leung Yau proceedings had considered this Interpretation to be “unquestionably binding”, it was Mr Justice Thomas Au’s judgments of 14 July 2017 disqualifying four more legislators from their offices and of 13 February 2018 dismissing Chan Ho Tin’s election petition, respectively, that it was sought to fuse this Interpretation into Hong Kong’s judicial and legal processes. This article examines this trio of cases and claims that with the insistence or acquiescence of the appellate courts, no attempt was made to apply this Interpretation consistently with values underlying Hong Kong’s common law-based legal system under the Basic Law. Rather, “faithful transcription” and “patriotic administration” had been engaged in. The judgments expose a probable conflict in judicial duty which, if not resolved properly, might undo the constitutional jurisprudence the HKSAR courts have constructed since their establishment.
This is Chapter 1 of my book entitled Judicial Construction of Hong Kong's Basic Law: Courts, Pol... more This is Chapter 1 of my book entitled Judicial Construction of Hong Kong's Basic Law: Courts, Politics and Society after 1997 (HKU Press, 2014). The book is based on my PhD thesis, with expansions to cover comprehensively the chronological development of Hong Kong's constitutional jurisprudence since 1997 and in depth the more recent Court of Final Appeal judgments. The chapter sets out the themes of the book, how they have been addressed in the book, and my findings on them.
This Book Review reads Tarunabh Khaitan's A Theory of Discrimination Law (2014) against Hong Kong... more This Book Review reads Tarunabh Khaitan's A Theory of Discrimination Law (2014) against Hong Kong's jurisprudence applying the constitutional guarantee of equality before the law and considers how Hong Kong's judges and legal practitioners may benefit from the structured approach Khaitan has suggested in the book in the litigation and adjudication of discrimination.
Hong Kong is a Special Administrative Region of the People's Republic of China. It has its own sy... more Hong Kong is a Special Administrative Region of the People's Republic of China. It has its own systems of government, laws, protection of fundamental rights, and judicial review based on the Basic Law of the Hong Kong SAR. It is also a relatively well developed and prosperous urbanized region in East Asia. Statistics on Hong Kong's GDP (US$46,323 per capita GDP in 2020) and international finance rankings (third, after New York and London) show that it is an open economy, centre of trade in goods and services, and an international and regional transport hub. On the other hand, in Hong Kong, one of the most densely populated territory of the world, there is significant wage and wealth inequality and this has been a worsening trend in the two and a half decades since China resumed exercised of sovereignty over Hong Kong in 1997 and putting the Basic Law into operation. This article seeks to illustrate the constitutional factors that have contributed to two operational situations in the governance of the Hong Kong SAR since its establishment on 1 July 1997, which are likely to have led to the inequalities stated above. The first involves the Basic Law's provisions on the economy, particularly the stipulations of fiscal discipline and low tax policy, and the approach the Government of the Hong Kong SAR has had made of them in budgeting and spending on public services. The second involves the Basic Law's provisions on the protection of socio-economic rights, and the approach the courts of the Hong Kong SAR have had made of them in adjudications.
Since 2013, Hong Kong scholars have been considering that it is open for the courts of the Hong K... more Since 2013, Hong Kong scholars have been considering that it is open for the courts of the Hong Kong Special Administrative Region of the People's Republic of China to recognise a right to marry for same-sex couples. The judicial recognition of the entitlement of a party to a same-sex marriage celebrated outside Hong Kong as "spouse" for the purpose of an immigration policy, civil service benefits and tax legislation by the Hong Kong Court of Final Appeal in two cases 2018 and 2019 has raised the prospects of judicial recognition of same-sex marriage for Hong Kong couples. This paper examines the recent direct legal challenges against Hong Kong's marriage legislation's restriction of marriage to "the civil equivalent of a Christian marriage between a man and a woman" and the consequential absence of a form of legal recognition of a same-sex relationship on par with marriage in light of the differing considerations on the part of Hong Kong's senior judges of the appropriate approach to resolve such a challenge. Particularly, it critiques the "lex specialist" approach adopted by the Court of First Instance in its judgment dismissing the first of these legal challenges by holding that since both the Basic Law of the Hong Kong Special Administrative Region and the Hong Kong Bill of Rights Ordinance (Cap.484), the instruments setting out the scheme of protection of human rights in Hong Kong, protect the right to marry of Hong Kong residents in particularly (and narrowly), other substantive protection, say, by invoking the principle of equality before the law and non-discrimination also enshrined in those instruments, was thereby precluded.
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Administrative Region (SAR) of the People’s Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law. Applying common law principles, the HKSAR courts have conceptualised “separation of powers” as a feature of the
Basic Law — the HKSAR’s constitutional instrument — and the Rule of Law in Hong Kong. This article demonstrates how HKSAR courts have used “separation of powers” to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-à-vis other branches of government. Towards the end of this article, the judicial narrative that embraces “separation of powers” is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the “separation of powers” in the HKSAR’s political system and advocates instead “executive-led government”.
Administrative Region (SAR) of the People’s Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law. Applying common law principles, the HKSAR courts have conceptualised “separation of powers” as a feature of the
Basic Law — the HKSAR’s constitutional instrument — and the Rule of Law in Hong Kong. This article demonstrates how HKSAR courts have used “separation of powers” to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-à-vis other branches of government. Towards the end of this article, the judicial narrative that embraces “separation of powers” is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the “separation of powers” in the HKSAR’s political system and advocates instead “executive-led government”.