Acta jure imperii and the (ironic) problem with long-arm jurisdiction under the National Security Law

Chinese state media reports that ‘warrants’ have been issued by the Hong Kong police force for the arrest of six individuals presently living overseas (see HKFP), in respect of national security offences. One of the individuals is a US citizen and has lived in the US for 25 years. Such warrants would purport to exercise … Continue reading Acta jure imperii and the (ironic) problem with long-arm jurisdiction under the National Security Law

The common law interface of our constitutions: three constraints on executive legislation

The NPC’s proposal to “draft laws” for the HKSAR to preserve national security, raises novel questions about the interface of the Basic Law (BL) and PRC constitution. These questions persist regardless of the content of such laws. A close look, however, reveals that the common law method offers three layers of protection. Articles 3 and … Continue reading The common law interface of our constitutions: three constraints on executive legislation

Ambiguity, legality and the CUHK injunction #2 of 2

The first post about this case looked at the principle of restrictive interpretation in the context of public authorities’ entry to the home and whether section 50(4) of the PFO permitted police officers to enter the University’s precincts. This second post addresses the two other legal bases offered by the Commissioner in support of his … Continue reading Ambiguity, legality and the CUHK injunction #2 of 2

Ambiguity, legality, and the CUHK injunction #1 of 2

Beneath Wednesday’s decision in So Tsun Fun v Commissioner of Police … [2019] HKCFI 2799 lie difficult questions concerning the extent and effect of police powers to enter non-public property to effect arrests and preserve peace. The application Mr So sought interim relief in terms that that police be restrained from entering the University’s precincts … Continue reading Ambiguity, legality, and the CUHK injunction #1 of 2

New publication: Duxbury etc, Hong Kong Family Court Tables

I am very pleased to write that the first edition of Duxbury etc has just been published and is available to download here. Duxbury etc is Hong Kong's first family law reference work published freely by practitioners. It is a public interest project aimed at increasing access to justice and it covers the gamut of family … Continue reading New publication: Duxbury etc, Hong Kong Family Court Tables

Conform to the norm: less favourable treatment and “conventional standards” in Long Hair v CCS on appeal

There is a problem with the statutory torts of discrimination. Direct differential treatment may not be justified and is ipso facto prohibited. There being no analytical space to extenuate less favourable treatment on account of a protected characteristic, explanations offered by respondents for treatment – in reality justifications – are often squeezed into consideration of … Continue reading Conform to the norm: less favourable treatment and “conventional standards” in Long Hair v CCS on appeal

Lubiano #3 ~ means, ends and orthodox Wednesbury

In this third post on the Lubiano/live-in rule decision, I look at the rationale behind the Director's policy of insisting that entrants to Hong Kong on foreign domestic helper visas live with their employers. I suggest that the policy does not survive scrutiny under orthodox Wednesbury/rationality analysis, regardless of whether fundamental rights precepts are in … Continue reading Lubiano #3 ~ means, ends and orthodox Wednesbury

From rationality to substantive equality ~ three takeaways from QT in the Court of Final Appeal

On Wednesday the Court of Final Appeal handed down judgment in the final round of the QT litigation. It was unlawful for the Director of Immigration to exclude same-sex married or similarly formalised couples from the dependant visa policy, which otherwise permits applications from opposite sex spouses. The decision means that the Director will no … Continue reading From rationality to substantive equality ~ three takeaways from QT in the Court of Final Appeal

Societal consensus resurrected? Leung Chun Kwong in the Court of Appeal

The Court of Appeal’s decision in Leung Chun Kwong [2018] HKCA 318 was handed down on Friday: it was lawful for public bodies to exclude the spouse of a same sex marriage celebrated abroad, from civil service employment benefits afforded to opposite sex married couples in Hong Kong. It was also lawful to prevent the … Continue reading Societal consensus resurrected? Leung Chun Kwong in the Court of Appeal

Lubiano #2 ~ private actors and positive obligations

In this second post on the live-in rule decision I look at the substance of Ms Lubiano’s fundamental rights argument: that by requiring persons admitted under the Foreign Domestic Helper scheme to live-in with their employers, the Director unacceptably or significantly increases the risk that they will be subject to fundamental rights abuses, and thus … Continue reading Lubiano #2 ~ private actors and positive obligations