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Spring 2012 | Issue No.2 http://www.cuhkglsa.org

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Gazette

Feature

Dean Gane

Meet the New Dean of the Law Faculty

Articles Controlling Money Laundering: a Legal Conundrum Refugee Law in Hong Kong: An Overview Where is Your Lawyer? The Problem of Unrepresented Litigants

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graduate law students association chinese university of hong kong


Letter from the Editor Vincent Chan, Editor

In a few years from now, every one of us will be reflecting on our experience at law school. For me, the best experience will undoubtedly be running the Gazette. Our humble journal has surpassed the expectations of all of those who have been involved, and has become one of the best ways to get involved as a CUHK law student. The future of the Gazette is bright and I am confident that it can only get better as CUHK continues to attract more and more talented postgraduate law students. The Gazette Committee has grown rapidly since our first term and we have added six new writers to the team as well as bringing on board new staff. The Faculty has been greatly supportive, and in particular, Prof. Michael Ramsden

has taken on the role as an advisor as well as contributing to this issue. Also, we have received great feedback from law firms and with special thanks to King & Wood Mallesons for their support; the Gazette is now available in print for the first time allowing us to reach an even greater readership.

rights. This term, I was also pleased to see one of our very own writers, Flora Tsui, elected as the new President of the GLSA. Having worked with her, I am confident in her ability to provide all of us with the most rewarding postgraduate student experience there can be.

This term, we are honoured to present an exclusive interview with our very own Prof. Christopher Gane, the new Dean of the CUHK Faculty of Law, as our feature piece. I am assured in the continuing success of the Faculty under the leadership of our new Dean, who has shown me that he truly cares about the students and the future of the Faculty. In addition, we have brought together a plethora of articles covering all of the hottest legal topics designed to spark discussion among the student body. In particular, I am pleased to introduce a new section on human

With exams coming up, I know things can start to get a little hectic. A lot of emotions are floating around and everyone is under a lot of pressure. It is going to be tough, but I think it is fair to say that none of us expected it to be easy. It is my hope that the Gazette will be a nice break away from all the studying and as we read this issue, that it will remind each and every one of us why we became a law student. Most importantly, try to relax guys, the road ahead of us is long and you have got to make sure you are fit to enjoy the ride. •

Letter from the GLSA

Eva Chan, GLSA President 2011-2012 As the outgoing GLSA president, it is my distinct honor to thank this year’s e-board and numerous committees for their hard work and dedication to CUHK. Since its founding, the GLSA has served to advocate student interests, create opportunities for involvement and make law school a memorable experience. It is my conviction that this board has not only upheld this mandate but also left a lasting impact on the student community. Beginning with the Careers Committee, this term we partnered with Sidley Austin to provide a unique panel designed to give students insight into what recruiters look for during the interview process. Additionally, we organized the Alternatives Careers in

Law panel, giving students a broader perspective into their long-term career. Additionally, the Careers Committee organized the first ever Contracts Moot with great success. In addition to maintaining the Gazette online, the Gazette Committee took our journal’s efforts to the next level by providing the first-ever print edition, thanks to our official partnership with King & Wood Mallesons. We are particularly excited to introduce Dean Gane as our featured article. The Social Committee kicked off the term with a wine tasting event at The Wine Shop and a mixer with the Young Solicitors Group and Young Barristers Committee. In particular, the committee organized a spectacular Gala Dinner complete with live student performance and a photobooth for capturing the evening’s memories.

In March, we organized elections for next year’s e-board. To the newly elected 2012-2013 e-board, I extend my heartfelt congratulations and wish them every success. Having had the pleasure of working with many members of the new board, I am confident that they will take the GLSA to new heights and look forward to seeing them flourish. Finally, I thank you, the students, for allowing me the privilege for serving as President of the GLSA this past year. This has been an immense learning opportunity, and an unforgettable part of my law school life. Whether you are an incoming JD student, an LLM or a PCLL student, I encourage you to get involved and leave your mark on CUHK. To my fellow GLSA members, I remain impressed by your talent, passion and dedication. I am so thankful and humbled to have served with you. •


A career at King & Wood Mallesons offers you both global and local opportunities, the most interesting work, the best training and all the support you need to become a great lawyer. So, if you’re smart, social and up for a challenge – get ready to...

SHAPE YOUR WORLD With a vision to create a global law firm in Asia and a history of bold innovation, it’s only the beginning for King & Wood Mallesons. Right now, you can become part of this ‘game changer’ for the legal industry – as we deliver a new legal choice and help our clients realise their new world opportunities. For those who don’t know us well, here’s a snapshot of what we offer you today and tomorrow…

Vision To create a global law firm in Asia Team maTes Over 380 partners and 1,800 lawyers (biggest international legal network in Asia) RepuTaTion Over 100 international and Asia-focused awards and 50 top-tier rankings LocaTions Strategically positioned in the world’s growth markets, financial capitals and the home of information technology (21 offices globally and the only international legal network to be head quartered in Asia) cLienTs Global financial and corporate powerhouses to new industry-makers to and all levels of government (some for over 200 years)


A printed copy of this issue is now available. Pick up your free copy at the GLC. Graduate Law Center Chinese University of Hong Kong 2/F, Bank of America Tower 12 Harcourt Road Central, Hong Kong


Feature

Awareness

Controlling Money Laundering - A Legal Conundrum pg.14

An Interview with Dean Gane

pg.12

GLSA

GLSA Events The New GLSA The Gazette Team Student Commons

Moving Towards a Competition Law

China Patent Boom

pg.12

pg.13

Opinion

pg.10

Careers

LLM给我们 的就业带 来了什么 pg.19

Weighing In

On the Brink of A New Age

pg.25

Same Sex Marriage Laws in Hong Kong Is it Necessary?

pg.23

The Internet Can’t Go Black

Law and Literature pg.24

Where is Your Lawyer?

PCLL Requirement in Hong Kong

The Problem of Unrepresented Litigants

pg.18

Human Rights

Stop Online Privacy Act (SOPA)

pg.11

pg.6

Jessup Moot Insider

How Can Hong Kong Capture Market Share?

pg.22

Refugee Law in Hong Kong

Refugee Law Externships

pg.20

pg.21

An Overview


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GLSA

GLSA Events Gala Dinner 2012

Issue No.2 • Spring 2012


GLSA

GLSA Gazette Stay up to date with the GLSA www.facebook.com/cuhkglsa www.twitter.com/cuhkglsa

Wine Tasting 2012

Careers in Law and its Alternatives Panel

Sidley Austin Interview Workshop

CUHK and GLSA Contracts Moot 2012

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GLSA

Issue No.2 • Spring 2012

Meet the New GLSA Flora Tsui, GLSA President 2012-2013 Under Eva Chan’s leadership in the past academic year, the GLSA has grown and matured into a far more recognized student association in Hong Kong. Eva’s team has laid a solid foundation for GLSA’s continued growth in the future. With my team of dedicated and talented e-board members, the new GLSA will continue to deliver for our growing graduate law division here at CUHK. The Careers Committee, Social Committee and the Gazette Team are great successes of the GLSA. Under External VP Jenny Chan, the Careers Committee will continue to build relationships with prestigious law firms in Hong Kong through collaboration initiatives. Our Social Chair, Helen Pang, will be in charge of organizing social events among students within and beyond CUHK. The Gazette will

Left to Right: Jackie Cheng, Secretary Janice Leung, Treasurer Jenny Chan, External Vice President Flora Tsui, President Sunny Wong, Internal Vice President Helen Pang, Social and Media Chair

also continue to serve as a platform to showcase our students’ talents and viewpoints on key legal and political issues in Hong Kong and around the world. These three committees make up the core of GLSA’s initiatives. For the benefit of our students, we will strive to develop these initiatives even further next year. In addition to the work of the above committees, the current e-board will be launching several new projects. First, Internal VP Sunny Wong will lead a Community Service and Outreach Team. Work is already under way, as we have begun exploring potential community service projects with interested partners. The incoming GLSA board will also launch a Language Mentorship Program next year, as the GLSA sees the demand for greater language exchange. Our aim is to help students polish their English, Mandarin and Cantonese speaking skills by implementing this language

buddy system. Finally, the GLSA will work closely with the Law Faculty on developing a CUHK Graduate Law Students Alumni Network. It is our wish to connect with our alumni to bolster CUHK’s presence within Hong Kong’s legal and business community. Also, don’t forget to check out the GLSA Forum in the GLC common area. In addition to our website and Facebook page, we will also be making regular updates and announcements there. We will begin the Committee Member Recruitment process after the summer so stay tuned for more details! As an elected representative of the GLSA, my goal to is deliver and meet the expectations of our student body. Feel free to drop us a note on our website or Facebook page anytime if you have any suggestions, feedback, or ideas for the GLSA. Let’s work together to make the GLSA a stronger and more vocal part of our student lives here at CUHK. •

Get Involved! Interested in contributing to the Gazette? Drop us a line at newsletter@cuhkglsa.org Want to be a part of the GLSA or one of our committees? Email us at glsa@cuhk.edu.hk


GLSA

GLSA Gazette

Meet Our New Writers

Left to Right: Erik Mitbrodt, Nicole Sze-to, Jenny Poon, Bob Lin, Paul Cheuk, Stephanie Fung, Margaret Wo, Maggie Lee, Yinny Liu, Winnie Poon

Editorial Team

Left to Right: Kevin Ng, Charles Ladbrooke, Flora Tsui, Vivien Li, James Muirhead, Philip Cheng

Vincent Chan, Editor in Chief Eva Chan, Founder & Editor Vivien Li, Staff Editor Kevin Ng, Layout Editor Erik Mitbrodt, Layout Committee Professor Michael Ramsden, Advisor

Student Commons Editor’s Top International News and Events 1. An End to the Syrian Uprising? Syria accepts former

Editor’s Top Local News and Events 1. CY Leung elected as Hong Kong’s next Chief

2. Mali military coup - a major setback for the

2. ExCo approves HK$136B proposal for third runway

3. North Korea’s new leader - can Kim Jong-Un establish

3. Court of Appeal in Vallejos Evangeline Banao v

UN Secretary General Kofi Annan’s peace plan. democratic movement in Africa. domestic legitimacy?

4. European debt crisis deepens; Greece receives €130B second bailout.

5. Iran-Israeli tensions rise; Israel threatens attack on Iran’s Nuclear Programme.

Executive.

at Chek Lap Kok airport.

Commissioner of Registration: foreign domestic helpers cannot apply for permanent residency.

4. Ex-CS, Raphael Hui, and two Sung Hung Kai

chairmen arrested by ICAC on suspicion of corruption.

5. CFA in Fok Chun Wa v Hospital Authority: charging

non-residents, including mainland women married to HK men, higher public hospital fees for obstetric services is justified.

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GLSA

Issue No.2 • Spring 2012

L-R: Hayd e Michael R n Lau, Vinca Yau, E amsden, J va Chan, anet Tang, Justin Ho

CUHK sweeps the HK regional rounds

he thing about battle stories is, you can never truly understand from the outside. I’d heard the moot stories: allnighters over Christmas holidays, the endless research and practically living in the moot room in the GLC. But like any mooter will tell you, it’s an experience you can’t comprehend from the outside looking in.

T

r the gton DC fo In Washin al rounds internation

sweeping the regional rounds, winning best overall team, best speaker (Vinca Yau, LLB 3), best applicant memorial and best respondent memorial. In the past four years, CUHK has been the Hong Kong champion three times, going on to represent the SAR in the international rounds.

As for the actual mooting experience? Most Mooting is the art of oral advocacy. Students of the stories are true. There are indeed take on the role of advocates caffeine-fueled nights, endless “...the Phillip C. in a courtroom. Unlike debate reading and long hours in the or Model United Nations, it Jessup cup is the GLC. But it is also the most is a two-way process. Not only largest and most fun you will ever have in law are you attempting to persuade prestigious moot school. Mooting offers you the the bench, you simultaneously in the world...” chance to fine-tune your legal have to fend off their barrage thinking and analysis of issues. of questions while preempting or rebutting It gives you the opportunity to work oneyour opponent’s arguments. on-one with a faculty member and receive feedback you wouldn’t otherwise get in Considered to be the gold standard of oral class. It trains you to think quickly on your advocacy, the Phillip C. Jessup cup is the feet, and remain composed even if you are largest and most prestigious moot in the anything but zen inwardly. world. It simulates proceedings before the International Court of Justice and deals But the best part of being on the moot team, with international law issues. This year, is the close-knit friendships you will form over 500 schools in more than 80 countries with your teammates. In spite of the stress participated, culminating in the international and work load, mooting is addictive. There rounds in Washington, DC from March 25 is a thrill like no other when you are facing to April 1. a cynical bench and have nothing but your wits about you. But don’t take my word for Despite its relatively short history, CUHK it. Step in from the outside and find out for has maintained a strong tradition in mooting. yourself. • This year was no exception, with the team Thinking about mooting next year? Here’s a side by side comparison: Legend

VIS Oral arguments

Oral arguments Team Selection (regional - HK) Memos due Oral arguments (international)

LAWASIA RED CROSS JESSUP Jun

Jessup Moot Insider Eva Chan

Vis & LawAsia: commercial arbitration

Sep Nov Dec Jan Feb Mar Red Cross: international humanitarian law Jessup: international law 2012 2013


GLSA Gazette

Awareness

Stop Online Piracy Act “SOPA” The Internet can’t go black ow many of you uploaded SOPArelated statuses on Facebook on 17 January 2012 - the day you realized Wikipedia had taken a 24-hour ministrike against a bill that would censor the Internet? Did the ‘blackout’ work?

H

The Stop Online Piracy Act (“SOPA”) was meant to provide content protection for copyright owners. The Bill was temporarily set aside because it had disregarded the interests of two billion internet users, and had the potential to penalize many harmless internet-users and websites. Ever since websites such as Wikipedia and Google took steps to make their opposition heard, the feedback from the online community has been huge. The ‘blackout’ successfully kept the bill from coming to fruition. If passed, SOPA would have allowed judges to issue court orders to shut down any sites that are considered to be infringing US copyright laws. A law like SOPA would have wide ranging implications for our daily internet-activities including sharing, or even providing a link to copyrighted videos on YouTube or Facebook. These concerns are especially important with online social networking sites becoming one of the most important ways to communicate. SOPA poses a real risk to individuals who unknowingly fall into the realm of copyright infringement. For example, all you JLin fans out there might find yourself potentially caught up in

unwarranted litigation if you shared any clips of highlights of his past games on Facebook. Not only that, you might face jail time because you posted or shared copyrighted content. This is not the first attempt that the media industry has tried to crack down on particular infringers. First, there was the tape recorder in the 1980s. There was also the Digital Millennium Copyright Act, which targeted the first file-sharing giants, such as Napster. The idea of a bill that aims to protect the intellectual property rights of

“The problem of internet- piracy cannot be solved entirely by the legislators...” content makers is without doubt one of good intentions. However, the introduction of SOPA begs the question of whether legislators fully comprehended the scope of the Bill. The Bill was criticized for being vague and unclear. For example, it did not give a clear definition of what ‘onlinepiracy’ meant. One is left to wonder whether lawmakers really understood the Internet and its users. As internet-users and future lawyers, we possess both the skills and interest in the matter. In our opinion, the US Congress may have gotten it wrong this time. The problem of internet piracy cannot be solved entirely by

Winnie Poon

Yinny Liu the legislators. History demonstrates that it is difficult, if not impossible, for drafters to keep up with advancements in technology. A distinction ought to be made between serious online infringers of copyright and other casual users of the Internet. It is important for legislators to recognize that a combined legal and non-legal solution may be more costeffective for all parties involved. For example, there is already a growing trend of paid content that deters copyright-infringement by focusing on a more user-friendly experience. The developments in this area of the law will affect each and every one of us. As law students, we have the foresight to see the negative impact of online piracy. If legislators are forced to pass a law like SOPA in the future, we are the ones that will bear the consequences of having our online freedoms restricted. We can do our part to prevent this by not participating in copyright infringement. We can also voice our concerns and keep up to date with the developments. With our knowledge of the law, we need to ensure that the Internet will never be ‘blacked out’. •

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Awareness

ss

Issue No.2 • Spring 2012

Pa

GO?

Moving Towards a Competition Law he Competition Bill received its first reading in the Legislative Council back in July 2010. Since then, there has been much criticism about the Bill’s effectiveness. The Bill has now reached a critical stage of the legislative process and is currently under scrutiny by a Bills Committee. The far-reaching implications of a Competition Law in Hong Kong deserve careful consideration by the business and legal communities.

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Hong Kong’s widely recognized international competitiveness is largely attributed to its essentially “laissezfaire” free market economy. However, in recent years, there has been evidence of supermarket giants pressuring their suppliers into restricting supply to other retailers and petroleum distributors engaging in price-fixing activity. These apparent abuses of dominant positions by large market players seem to suggest that Adam Smith’s Invisible Hand has failed to work its magic for the common good in Hong Kong. This has led to a need for reform in competition law.

The invisible forces at work in an ideal free market economy rely on competition to make the market more efficient. The introduction

“The effectiveness of a Competition Law ... will largely depend upon the expertise and capability of the Competition Commission and Competition Tribunal...” of Competition Law is part of the Government’s effort to enhance market efficiency by prohibiting and deterring conduct and mergers that restrict competition in the region. The Competition Bill sets out two main conduct rules that deserve some added attention. The first rule addresses collusive business conduct in agreements, decisions, and concerted practices. The second covers the abuse of a substantial degree of market power. Many small and medium enterprises

Maggie Lee fear that the sharing of pricing strategies with similar industry players, even in a social context, may constitute illegal “price-fixing” because the wording of the conduct rules is somewhat vague. However, SMEs are unlikely to gain a “substantial degree” of market power and it is unlikely that their actions will breach the proposed laws. There are also some exemptions to the conduct rules. The Bill allows competition agreements to the extent that they enhance overall economic efficiency or are made to comply with a legal requirement. In order to mitigate concerns in the business sector, the proposed Bill provides for businesses that have engaged in “non-hardcore” violations to receive a warning and an opportunity to cease their conduct before they face any enforcement action. The Government has also put in place a grace period before key prohibitions become


Awareness

GLSA Gazette enforceable. During this critical period before the Bill is passed and becomes law, it is beneficial for corporations and businesses to act prudently in order to avoid potential litigation in the future. The Government is expected to provide appropriate guidance to businesses during the transition phase. However, companies will be forced to review their existing operations to ensure that they comply with the proposed requirements. Employees should also be given adequate training to understand what constitutes anti-competitive behaviour. It is inevitable that the introduction of Competition Law will entail increased legal costs for many businesses. However, this also means more work for lawyers.

Currently, the proportion of law firms in Hong Kong with an antitrust practice is relatively small compared to other more popular practice areas, such as mergers and acquisitions. As clients invest more money in preparation for a Competition Law, we will likely see an increasing trend of law firms devoting resources to the antitrust practice area in order to capture this rising opportunity. The effectiveness of Competition Law in addressing the prominent monopoly issue in Hong Kong will largely depend upon the expertise and capability of the Competition Commission and Competition Tribunal in correctly identifying anti-competitive conduct and imposing proper enforcement actions. Their role in fostering the

public understanding of competition law will also play an important part in promoting a general function of deterrence in the region. It is important to remember that the purpose of a Competition Law is to promote competition, not to punish or deter large corporations. The law ought to be seen as complementing the ‘invisible hand’ rather than as a handcuff. In my opinion, a Competition Law is beneficial to Hong Kong by bringing us up to par with other developed economies in terms of anticompetition regulation. If successful, the Competition Law will encourage all market players to innovate more, so ultimately everyone can benefit from it.•

China Patent Boom How Can Hong Kong Capture Market Share?

ong Kong has the capacity to transform itself into a regional Intellectual Property trading hub, and its legal system has laid the basic foundation for it to remain competitive for at least another 35 years.

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Since the handover, Hong Kong has offered two kinds of patent protection: standard patent and short-term patent, which extend a shelf life for 20 and 8 years respectively. Patents that entail novelty, a new and inventive step and

susceptibility to industrial application are patentable. Procedurally, standard patents involve re-registering UK, European or Chinese patents at the Patents Registry. This examination of formalities is secured within 6 months. In contrast, shortterm patents take less time to process, as they are approved upon the submission of a search report from any foreign patent office or International Searching Authority to the Registry, regardless of

Stephanie Fung whether prior conflicts of invention have been revealed and reported. Last October, the government sought views on whether an Original Grant Patent (OGP) system – one that enables the inventor to register patents directly

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Awareness in Hong Kong – should be introduced to encourage local innovation and secure effective protection of inventions. Nevertheless, the concern of operating an OGP system is one of cost effectiveness. Some question whether there is sound demand to necessitate a patent office along with a regulated patent profession, which are two common characteristics of a technologically advanced country. In addition, the government consulted opinions on whether the current reregistration system should be kept and even expanded to recognize the patents granted by other jurisdictions. The concern for short-term patents is whether it should be retained to supplement standard patents. Hong Kong lags behind China in patent filings, despite having a stronger legal system. After only 28 years since its adoption and training of patent attorneys, China is currently

Issue No.2 • Spring 2012 experiencing a patent boom. Put into economic perspective, in 2010 the UK received 150,961 patent applications, the US received 490,226 patents, whereas China received 400,000 applications (73% of which were domestic filings). Hong Kong received only 11,702 standard patent

“The reality is that Hong Kong has seen an uppace development in industries yearning for better patent protection.” applications, 65% of which were reregistration of patents from China. The reality is that Hong Kong has seen an up-pace development in industries yearning for better patent protection. For example, the creative industries, which accounted for 4% of GDP growth in 2011 , was announced as one of the top six industrial priorities in Mr.

Donald Tsang’s latest policy address and part of the National Strategy for Hong Kong in the PRC’s 12th Five Year Plan. In my opinion, echoing the concept of a RMB offshore centre, it is crucial for Hong Kong to leverage China’s spillover growth due to its geographical approximation. Implementation of the OGP will not only refashion the legal practice of patent law but also herald in employment opportunities for IP and patent lawyers. But fundamentally, as Elliot Papageorgiou, a Partner at Rouse Legal (China), a leading IP firm, reveals: “High figures for filings [in China]…[do] not tell you anything about the quality of the patents filed” due to limitations in enforcement. It is time for Hong Kong to set up an OGP system. The value of the rule of law will allow Hong Kong patents to be distinguished from those registered elsewhere. •

Controlling Money Laundering A Legal Conundrum What you need to know about money laundering regulations oney Laundering (ML) is the act of concealing the identity of illegally obtained funds, making them appear to have been legally obtained. The problem is important as it is closely linked to terrorist activity. In 2001, Al Qaeda had an annual operating budget of around US$30 million. As a reference, the Bali bombings of 2002 cost an estimated US$50,000. By 2009, the then-chief of Al-Qaeda’s finance committee, Abu al-Yazid, had to repeatedly call for funding.

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It seems that, prima facie, it seems that governments have been able to disrupt the capital flows of terrorist networks by successfully implementing antiML legislation. But how effective has the crackdown on ML really been as

a deterrent for terrorism? The 2005 London bombings showed a move towards local cells financing themselves with legitimate loans and their own savings. Therefore, the success of antiML legislation has to be set off against the potential shift in financing tactics by terrorists. How are law firms and their clients affected? A lack of due diligence on the part of law firms can make both the firms and their clients liable for criminal acts themselves. After 9/11, stricter regulations have forced banks and other financial institutions to report any suspicious

James Muirhead activity and effectively ‘police’ financial transactions worldwide. The tracing and reporting of money flows help governments tackle the problem of serious crime. In law, a person is guilty of money laundering as long as it was reasonable for him to suspect that money was from the proceeds of crime. A lack of effective controls in any financial transaction may lead to heavy fines for a firm when receiving money from clients. Individual lawyers may also face fines up to HK$5 million and a maximum


Awareness

GLSA Gazette A Typical Money Laundering Scenario

Placement

1

The money is put into the financial system to be laundered. For example: $9000 may be deposited into accounts at 10 different banks so as to not draw suspicion. This process of dividing up and placing money is known as ‘smurfing’.

Layering Through a flurry of financial transactions, the provenance of the money is obscured.

2

For example: The money is transferred through offshore accounts, spending less than 10 minutes in any one account. The amounts are further obscured through various OTC deals and contractual agreements with fake shell companies. Some of the money is put into property speculation. The rest is used to purchase gold that is melted down, smuggled from Saudi Arabia into China and re-sold.

Integration

3 imprisonment of 14 years. How is money laundering monitored? The governing bodies that monitor money laundering are a miscellany of local and international organisations. In Hong Kong, these include the Joint Financial Intelligence Unit (JFIU), which is run by the police and the Customs & Excise Department, as well as Interpol and the United Nations.

The money is slowly integrated back into the financial system as ‘clean money’. For example: by buying investments and luxury assets, paying bills, etc.

is suspicion, financial institutions also have a duty not to tip off the clients who have had their assets frozen. Has this Worked in Hong Kong? The short answer is that we will never really know. According to the JFIU, there have been 1,340 ML convictions, and a total of HK$1.8 billion recovered by the government between 2007 and

“Major underground The UN and EU also maintain their organizations have simply own respective blacklists of people and been forced to change organisations. However, difficulties their financing methods...” arise because this information is often too vague to act upon, for example: ‘Faiz, the head of the information department of the Taliban, born around 1969’. They also require financial institutions to freeze all known assets in a given institution within 48 hours of the list being updated. Where there

2011, of which HK$1.5 billion was seized in 2011 alone. By comparison, the UN estimates between US$800 billion and US$2 trillion are laundered globally each year. Following

recommendations

by

the Financial Action Task Force, a more comprehensive Anti-Money Laundering and Counter-Terrorism Financing (Financial Institutions) Ordinance is due to come into effect in April. This will give more powers to investigatory bodies, such as the police and Securities and Futures Commission to investigate suspicious activity. Conclusion Anti-ML legislation has increased the liability and costs of doing business, but it is unclear whether the legislation has produced effective results. Major underground organizations have simply been forced to change their financing methods to make them harder to detect. In my opinion, the resources spent to catch the small fry caught in the anti-ML net can perhaps be better spent in following the money to catch the really big fish. •

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Feature

Issue No.2 • Spring 2012

An Interview with Dean Gane

Vincent Chan

Flora Tsui

dedicated scholar and an academic administrator in continental Europe for over 20 years, Christopher Gane left his post as Vice Principal of the University of Aberdeen to join CUHK’s Faculty of Law as Dean in September 2011. Professor Gane kindly shares with Flora Tsui and Vincent Chan his ambitions and vision for our law school.

A

1. In contrast to your understanding 2. and experience with the European legal system, what do you find most interesting about Hong Kong’s legalpolitical environment?

One of the things that intrigued me is the way in which Hong Kong, in constitutional terms, is conducting an experiment as it goes along. It is a unique experiment. There has never been another constitutional structure like Hong Kong and there probably will never be one again. One of the most important questions we all need to be thinking in Hong Kong is how this will develop and how this goes forward in 2047. Students like you are going to be the professional leaders when all this happens. There is a lot of work that needs to be done well in advance.

How would you compare your academic experience in Scotland and Hong Kong? Academia in Europe is not so different from that in Hong Kong. It is actually very similar. Universities are facing the same issues. Every university in

“CUHK’s Faculty of Law is distinctive in our internationalism and distinctive in the international experience that the students can get here.” the world is competing ferociously for the best academics and the best students. Every university in the world is grappling with globalization.

Universities want to play a role in forming the future and will do so by finding ways to give evidence-based answers to the world’s key issues. In order to do that, universities have to persuade academics to come out of their own particular silos and talk to other academics and people outside the academy about these problems. We need to get the right kind of collaborative work going to answer some of the problems that we all face.

3. Having joined the Faculty of Law

since the end of September last year, what do you think sets CUHK apart from the rest of the law schools in Hong Kong? This university has its own particular flavor and it brings with it its own


Feature

GLSA Gazette challenges. The Chinese University of Hong Kong is committed to some very important values, not least bilingualism.

“The university is a great place to begin to understand at least some of the questions facing China and the greater Asian community.” The university is a great place to begin to understand at least some of the questions facing China and the greater Asian community. I am confident to say that the experience here, the mix of students and faculty, is just about as international as anywhere else. CUHK’s Faculty of Law is distinctive in our internationalism and distinctive in the international experience that the students can get here. We should develop that more fully and make a more obvious statement as part of our identity.

4. What is your vision and goals for CUHK’s Faculty of Law?

This faculty has established itself as a true leader in terms of legal education in Hong Kong. Instead of simply benchmarking ourselves against other local universities, we should set our ambitions beyond Hong Kong. We need to be seen as an internationally recognized law school that is constantly improving.

I am thinking quite hard with my colleagues about how to capitalize on the international aspect of CUHK and make this even more a part of the experience of the students. We have great opportunities to develop comparative legal studies here, which are not available in other parts of China and, at least with an Asian dimension, are less available in Europe as well. We also need to be building up and enriching our postgraduate research programme by bringing in research postgraduates internationally. We need to open up the opportunities that studying in Hong Kong will bring to them, and at the same time expand the reach of the Faculty as a whole.

to them in Hong Kong. This is very much the experience in the UK, and certainly in Scotland where only about half of the LLB cohort will seek to get into the equivalent of the PCLL. The LLB degree is seen as a general degree that has an advantage of opening up the opportunity of a legal career. I think this is a good model to pursue; the students can then understand that they have the option of choosing what they want to do.

6.

Do you have any tips/advice for the CUHK graduate law students?

5.

Remember to keep an international dimension to your perspective as much as you can. Think about life and work outside of Hong Kong. Make sure that you are not on a single track. Together with your language skills, recognize that you are massively competitive with your undergraduate and graduate qualifications. Remember that there is a

The JD and LLB have different student constituencies. The presence of the JD is not likely to result any time soon in the phasing out of the LLB.

“Instead of simply benchmarking ourselves against other local universities, we should set our ambitions beyond Hong Kong.”

CUHK offers both JD and LLB. What is your perception on the comparison between the JD and the LLB? With the emergence of JD, do you think that eventually there will be a phasing out of the LLB?

The LLB predominantly provides students the opportunity to get a good grounding in law as well as a first experience in a university education. I would like the LLB to be seen as not just a route to the PCLL but to open up a wide range of opportunities available

Biography • Professor Gane completed his LLB at the University of Edinburgh. • He began his career as an academic with a focus on criminal and (later) human rights law. • He took up professorships at the University of Sussex (1990-1994) and the University of Aberdeen (1994-2011). • He also served as the Head of the School of Law (1995-2000), and the Head of the College of Arts and Sciences and Vice-Principal at the University of Aberdeen (2009-2011) before joining us here at CUHK in September 2011.

huge appetite for law firms to look for people with this kind of experience. So keep your horizons very broad and keep them international. •

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18

Careers

Issue No.2 • Spring 2012

PCLL Requirement in Hong Kong

Erik Mitbrodt

t the beginning of the year, many practitioners in Hong Kong? of us were made aware of the reality that not all of us would become An argument against the quality lawyers because a significant number of assurance function of the PCLL is that us would not be able to enter the PCLL those who get top grades in the LLB programme. But Hong Kong has one of or JD programmes will not necessarily the lowest lawyers per capita and some become the best, most influential, or of the highest legal fees in the world. most successful lawyers. After all, some It can be argued that Hong Kong can of the most famous lawyers in history, easily absorb more lawyers. So why do including Abraham Lincoln did not law schools limit the number of PCLL “...is there a more effective places that are on offer?

It is instructive to look to other common law jurisdictions that do not insist upon the same restrictions. In Canada, in order to qualify as a lawyer with a JD or LLB degree a law student goes straight into an ‘Articling’ position for 12 to 16 months before taking a provincial bar exam. In Australia, after completing a JD or LLB degree, most graduates are eligible to enter the Australian equivalent of the PCLL, the Practical Legal Training course (PLT).

As a new law student, it is easy to jump of legal practitioners in to the conclusion that it is all about Hong Kong?” protectionism. For starters, the Law Society plays a quality control function even go to law school. In Lincoln’s time, as part of its mandate to “establish in order to qualify you only needed to rules for the conduct and education sit the bar exam. of solicitors and trainee solicitors”, “support and protect the character, In addition, other factors such as EQ, status and interests of solicitors in Hong commercial awareness, and many other Kong”, and to “promote good standards soft skills that are essential qualities of a of practice”. The PCLL was designed to good lawyer, are not reflected in exam effectively weed out the good lawyers results. As the PCLL is more practical from the bad and the anticipated result than the JD or LLB programmes, is that the quality of the lawyers in perhaps the admissions criteria for Hong Kong will improve. But this begs the PCLL should reflect these other the question, is there a more effective considerations. way to improve the quality of legal

Interestingly in Australia, it is relatively easy for an applicant with a law degree from Hong Kong to enter their PLT. As it stands, a graduate from a JD or LLB programme will only be required to complete courses in Australian Administrative Law, Federal and State Constitutional Law and Property Law before being able to enter the PLT.

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way to improve the quality

But perhaps there are other valid reasons why Hong Kong universities limit the number of PCLL places on offer. For example, allowing too many lawyers to qualify may flood the legal market, making it difficult for graduates to find gainful employment. Universities


GLSA Gazette ought to play a role in trying to manage the legitimate expectations of their students. Is it better not get into PCLL than to get into PCLL and then not get a job? You decide. There are also more practical reasons. For example, admitting more students to the PCLL may also require more

teaching staff. As universities all over the world increasingly compete for the best academics, it is not surprising that law schools may find it difficult to fund their more intensive programmes like the PCLL. Coupled with the fact that physical space is limited in Hong Kong, one can start to see why universities find it difficult to offer more PCLL places.

LLM 给我们的就业 带来了什么

光飞逝,转眼我们就要毕业

很多香港的律师事务所都在做和大

完成,更多的,它是一个新的开 始。有些人可能会继续深造,但大 部分人会步入工作行列。对于边工 作边读书的以及已经有相当工作经 验的人来说,找工作可能不是问 题。但对于这些没有工作经验的 人,LLM对我们找工作帮助有多大 呢?

以及内资向外扩展,IPO等。我们 的大陆和香港的法律教育背景,在 这里就尤为重要。经验显示,这些 决定留在香港的人,最终都能找到 工作。很多人都会在那些有做内地 业务的律师事务所里做法律助理, 这里不乏一些国际名事务所。

Careers Whether the current system is guided by protectionism or whether it leads to fairness are not conclusions that this article intends to answer. The point is that the legal qualification process needs to be fairer to students and in finding ways to achieve this, Hong Kong should consider the merits of Canadian and Australian systems. •

Bob Lin

的本科生一样,去申请包括世界五

时 了。毕业并非意味着任务的 陆相关的业务,如外资的境内投资 百强在内的各种企业的培训生。

由于我们不能在香港执业以及相对 平庸的语言技能,很多人认为要在 香港找一个好工作并不是一件容易 的事。再加上没有工作经验以及单 一的专业背景,情况可能还会更糟 糕。确实,在很多国际律师事务所 的实习名单里不会有LLM,更不用 说培训生合同了。但是,要知道, 不止我们,大部分JD毕业生也是 没法进入这些国际律师事务所的。 而LLM确实使我们有了在香港工作 的基本条件。

有个合伙人曾说过,由于LLM不 能在香港执业,他们基本上做不 到Associate。即便如此,这也并 不代表我们就完全没有发展的机 会。而事实上,我们有一些校友 就已经在这些律所里做了Chinese Consultant。 另外,除了从事法律服务行业,我 们也可以选择其他就业方向。通过 LLM专案,我们的语言技能得到提 升,我们对国际市场有一个新的认 识和把握。我们完全也可以想本地

如果我们要回国内发展,LLM对我 们也会有很大的帮助。海外的教育 背景,深入的专业知识以及巩固过 的英语技能能使我们在内地数不尽 的律师中崭露头角。相对与一般本 科生,一个法律硕士的文凭会给雇 主不一样的印象和反应。从一个好 的学校拿到文凭,特别是一个海外 的文凭,会给自己的教育背景一个 很好的提升。 无论是在香港或者内陆工作,中大 的LLM都会有很大的帮助。但坦白 的说,帮助的多少取决与我们的学 习成绩连同英语技能的提升程度。 有人说,如果你成绩都是A,那些 国际顶尖所都会争着要你。另外, 还要记住Wolff教授说的话:用英 语做所有的事。•

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20 Human Rights

Issue No.2 • Spring 2012

Refugee Law in Hong Kong An Overview

States party to the 1951 Convention and 1967 Protocol Non-Party States

Who’s Not Hong Kong India Indonesia Malaysia

Who’s In Afganistan China Cambodia Japan Korea, Republic of Papua New Guinea Philippines Timor-Leste Asia Pacific States Party to the Convention (not shown) Australia Fiji New Zealand Soloman Islands Tuvalu

Singapore Thailand Vietnam Many others...

he general public often have misconceptions about refugees, assuming that they are simply people who are fleeing war or natural disasters in their home countries. In reality, even in a country that officially recognizes refugees, an asylum seeker must meet certain legal requirements and go through a process known as Refugee Status Determination (“RSD”) in order to obtain refugee status.

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The 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol attempts to create an international standard for the definition of ‘refugee’. Under the Refugee Convention, a refugee is a person who fears persecution in his country of origin due to race, religion, nationality, political opinion, or membership in a particular social group. As of April 2011, there were 147

signatories to both the Refugee Convention and its Protocol, including China and the UK. However, neither instrument has been extended to Hong Kong. It has been suggested that customary international law confers fundamental human rights to asylum

“... asylum seekers come to Hong Kong because they perceive it as a safe and tolerant territory where human rights are respected...” seekers and refugees. However, as the international rules have not been incorporated into domestic law, it is unclear whether these individuals have any rights at all on a legislative level. As a result, refugees are not legally recognized in Hong Kong. The Immigration Ordinance only recognizes

Nicole Sze-to Vietnamese refugees and, in effect, the Immigration Department treats asylum seekers who enter Hong Kong as regular visitors. They are granted nonrenewable visitor’s visas upon arrival, which allow them to stay in Hong Kong for a time period ranging between two weeks to two months. In Hong Kong, the processing time for RSD typically exceeds the period of stay granted by the visas. The asylum seekers will then be deemed as “overstayers” and can be detained indefinitely. As of January 2011, there were 486 asylum seekers in Hong Kong. Currently, the Hong Kong government does not conduct its own independent inquiry into RSD procedures. Instead, the


GLSA Gazette United Nations High Commissioner for Refugees (UNHCR) office in Hong Kong assesses asylum claims and resettles recognized refugees to a country that is willing to accept them. The fairness of the current system has been called into question in C v Director of Immigration, a case about to be heard in the CFA this summer. In 2010, there were 457 RSD applications in Hong Kong. However, given such a large case load, the limited number of staff at the UNHCR office, and the complexity of the RSD procedure, asylum seekers have been known to wait for up to five years in order for their claims to be processed. During this period, they receive minimal

assistance from the government, limited access to education and healthcare, and are often reliant on NGOs for support. Although the Immigration Department can exercise their discretion to permit these individual to seek employment, this discretion has yet to be utilized. There is clearly room for improvement in the treatment of asylum seekers in Hong Kong. Despite the lack of legal recognition, asylum seekers come to Hong Kong because they perceive it as a safe and tolerant territory where human rights are respected. It seems unjust to subjugate these people, who are already fleeing from fear of persecution, to the risk of detention, poor living conditions, and slow processing times

Human Rights upon arrival in Hong Kong. Despite fears about the effect of a mass influx of people claiming refugee status in a small city like Hong Kong, it is perhaps time to review whether the “problem” of refugees is truly justified. Extending the Refugee Convention to Hong Kong would further Hong Kong’s commitment to international human rights. As a party to the Refugee Convention, the Government would also be legally accountable for the provision of welfare services for asylum seekers. Finally, it would help create a legislative framework that provides these people with the protection that they are desperately in need of. •

Refugee Law Externships key innovation in the Law Faculty’s short history has been the creation of a refugee law ‘externship’ programme. This programme enables CUHK law students to provide legal assistance to refugees, under supervision, and receive specialist training from leading practitioners in the field.

A

Inspired by clinical models around the world, the refugee externship encourages students to view legal practice as socially situated, to reflect on the nature of the lawyer’s relationship with a client, and to evaluate ethical conduct in a practical context. The refugee externship programme has been instrumental in advancing a founding mission of the Law Faculty: to instill in its graduates the values of civil society and the responsibility to protect the most vulnerable members of the community. Refugees, as reported by Nicole Szeto in this Issue of the Gazette, are a

group in particular need of assistance. Refugees have been described by one of our externship partners, Barnes & Daly Solicitors, as having less protection under Hong Kong law than cats and dogs – at least with cats and dogs there is a statute, an appeal to an independent board, and specific provisions on detention. The UN refugee screening procedure, if it were amenable to judicial review, would fail to satisfy even the most elementary principles of procedural fairness. Government inertia and mismanagement towards refugee screening has led to a system that is chronically slow, woefully inefficient and fundamentally unfair. It is in light of these challenges and unmet legal needs that students on the refugee externship programme can make a real difference to the lives of individuals. The stakes could not be higher: an absence of or inadequate legal assistance means individuals are seriously at risk of imprisonment, torture, and even death if returned to

Professor Michael Ramsden their country of origin. Students too derive considerable benefit from the externship. Dealing with refugees and their often-distressing circumstances can pose challenges to a law student new to client interviewing. But students who have taken the externship have commented positively on their experiences, in developing their confidence and legal skills in a practical environment. Students who participate in the refugee law externship programme will receive 3 course credits. They will undertake casework and attend seminars either at Barnes & Daly Solicitors or the Hong Kong Refugee Advice Centre. If you are interested in participating, look out for future application calls on Moodle. •

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22

Opinion

Issue No.2 • Spring 2012

Where is Your Lawyer? The Problem of Unrepresented Litigants Did you know ... ?

1/3

of civil trials in the CFI lack representation

35%

of cases in the Court of Appeal lack representation

69.7%

of litigants in person report financial concerns

s an international financial centre, Hong Kong has no shortage of It is apparent that high legal costs wealthy clients capable of paying for are a major deterrent to seeking Paul Cheuk expensive legal bills. But many people legal representation. In a survey still find it difficult to access legal conducted by the Resource Centre for representation when disputes and legal Unrepresented Litigants, 69.7% of class’. The government has shown issues arise. The situation is revealed LIPs reported finance-related concerns. no indication that they are prepared with a quick glance at the number For those with limited financial means, to provide alternative ways of legal of unrepresented fully funded assistance financing. In 2007, the Law Reform litigations, as recorded “It is apparent that is available. The Commission recommended conditional by the Judiciary. Legal Aid Scheme is fees aimed at middle-income groups. high legal costs are available to those with However, the government rejected this a major deterrent The problem seems to less than $260,000 in scheme citing a lack of support from be getting worse. Back to seeking legal financial resources. The the legal profession. in 2004 the proportion representation. ” Supplementary Legal of civil trials where at Aid Scheme has a More pro bono legal advice would least one party was a litigant-in-person higher threshold at $1,300,000, though help alleviate the situation. One well(LIP) in the District Court was around successful applicants in this scheme have established scheme is the Free Legal 49%. By 2009, this had increased to to pay a sum of $66,000 in application Advice Scheme. On one evening each 55%. At the Court of First Instance, fees and interim contribution – a steep week and by-appointment, volunteer there are still more than one-third of price for those with limited assets. lawyers are available at nine District civil trials where a party has no legal Offices around Hong Kong to provide representation. Shockingly, even at The Duty Lawyer Scheme concerns preliminary legal advice. In 2010, free the Court of Appeal, 35% cases lack defendants in the Magistrate or legal advice was given in a total of 6,592 representation. Juvenile Court, cases. However, or those at risk of “Law schools and the number of One problem that arises with the criminal prosecution student societies can participating lawyers prevalence of LIPs is that judges have at the Coroner’s has been falling since to spend a great deal of time and effort court. A duty take a more active role 2006. giving directions to litigants who lawyer will appear to organize ways to aid are not trained in the formal rules at the Magistrate volunteer lawyers and Law schools and of evidence and procedure. But the Court for free, and increase awareness in student societies can real problem is one of fairness. The following the first the legal community.” take a more active adversarial system assumes both sides court appearance, role to organize ways are equally competent in presenting will continue only to aid volunteer lawyers and increase their arguments. However, Camille if the defendant passes a means test of awareness in the legal community. Cameron and Elsa Kelly describe LIPs $130,186 in annual income. For example, law students could assist as having no knowledge of formal rules volunteer lawyers by conducting of court, no knowledge of substantive However, this still leaves few options interviews and taking memos. Students law, and unable to present the merits of for the significant proportion of society would also benefit from such a scheme their case. We must remember that not who are neither eligible for the above by gaining first hand experience of pro only must justice be done; it must also assistances, nor able to fund litigation bono work. • be seen to be done. themselves – the so-called ‘sandwich

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GLSA Gazette

Opinion

Same Sex Marriage Laws in Hong Kong: Is it Necessary? Jenny Poon here are currently no existing laws that recognize same-sex or transsexual marriage in Hong Kong. A recent case in the Court of Appeal, W. v. Registrar of Marriages, was crucial in determining the question of whether a post-operative transsexual should be allowed to legally marry a member of their original sex. The primary issue of the case was whether the definitions of “woman” and “female” under Sections 21 and 40 of the Marriage Ordinance (Cap 181) (“MO”), and Section 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179), were broad enough to include a post-operative transsexual woman.

position in this area. In Corbett, the House of Lords held that a marriage was a relationship between a man and a woman. For the purposes of marriage, the relevant factors were the biological, chromosomal, gonadal, and genital tests at birth. Such tests were obviously designed to disregard any operative intervention.

The Court of Appeal found that it does not. The Court further held that the provisions of the MO are not inconsistent with Article 37 of the Basic Law, nor are they contrary to Section 19(2) of the Bill of Rights Ordinance or Article 23(2) of the International Covenant on Civil and Political Rights. The decision represented a major blow to the Lesbian, Gay, Bisexual, and Transsexual (LGBT) community and the case is now awaiting the judgment of the Court of Final Appeal.

in English marriage laws would open up the floodgates. The House of Lords made it clear that modifying the existing law on marriage is a decision that is best left to Parliament.

T

At the Court of Appeal, the English case of Corbett v Corbett was cited by the Government as the common law

One way to accomplish this objective is to broaden the legal definition of the word ‘gender’. A ruling by the CFA in favour of the LGBT community would be a step in the right direction. Another way might be for the government to implement policies that ensure equal “...same-sex couples opportunities. By Following the decision are barred from the disallowing samein Corbett, the House of advantages that sex marriage, sameLords held in Bellinger heterosexual couples sex couples are v Bellinger that a barred from the marriage between a receive, such as tax advantages that allowances...” post-operative woman heterosexual couples and a man was not valid on the basis that such a change receive, such as tax allowances.

The decision in W is disheartening for the supporters of same-sex marriage. However, the need for equality for homosexuals and transsexuals should not be undermined. In my opinion, the recognition of a transsexual’s or homosexual’s right to marry should be an objective of society as a whole, and it is perhaps time that their rights are properly reflected in the law.

Despite the division in mainstream opinion, the reality is that the LGBT community exists and that they are people. It is not in the interest of fairness and justice to make these people wait while the rest of society decides whether or not to give their approval, because this issue does not really concern those that are opposed to it. Whether Hong Kong will adopt same-sex marriage laws in the future is still unknown. However, what is clear is that the voices of the supporters of same-sex marriage will only become more prominent in the years to come. •

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24

Opinion

Issue No.2 • Spring 2012

(above) The Courts of Chancery, as featured in Bleak House (public domain image)

Law and Literature

Philip Cheng

ince the 1970s, there has been literary works contain implicit social a law and literature movement and cultural meaning. Legal analysis punishment has been shifted from transforming legal education around is combined with the techniques and body to soul, and from infliction of the world. Both CUHK and HKU methods of literary studies, cultural maximal pain before the Church of Paris to constant surveillance and law schools offer law and literature studies and linguistics. discipline within modern institutions. courses. A typical response from the average law student For example, the It also opens up the discussion of the “The premise here is might be: what can we application of reasons for such replacement, and learn from literature? that both legal and techniques in the field probably lets us rethink the success and Law and Literature literary works contain of semiotics to law failure of penal justice, not just based brings law students implicit social and allows the subject to be on statistics, but in a more humanistic a set of analytical cultural meaning.” examined as a system approach. tools which are highly of signs. There have distinguishable from those offered by also been significant contributions The question put forth at the beginning the social sciences. This article aims to of feminism and postmodernism to of this article cannot be fully answered in this brief introduction. But I am in introduce the benefits of integrating jurisprudence. agreement with Professor Ian Ward literary theory and legal studies. when he said: “literature can help Following are two basic approaches Why does this matter to you? towards this subject: Aren’t law students supposed to be sensitize the law student, perhaps even applying legal rules, rather than reinvigorate a slumbering sense of moral The Law in Literature Approach appreciating the value of literary canons? responsibility”. I will also leave leave the reader with a quote from Professor This approach focuses on legal themes Let me use Foucault’s in literary works. For example, Discipline and Punish as “...lets us rethink James Boyd White, a Shakespeare’s The Merchant of Venice an example to illustrate the success and pioneer of the law and literature movement: “The and Dickens’ Bleak House dramatizes the direct relevance of failure of penal interesting question is not the conflict between law and equity, as narrative (storytelling) what the ‘field’ of literature justice... a more well as the flaws in the court of equity to legal questions. For has to teach the ‘law’, but in 19th-century England. Apart from those that have studied humanistic what meaning and value a literary canons, there are contemporary jurisprudence, you may approach” literary education can have examples such as Garcia Marquez’s recall how the author for the person who is learning and Chronicle of a Death Foretold and the spends the first three pages of the famous American legal ‘dramedy’, book detailing the bloody torture of practicing law – a question that can Boston Legal. Damiens, the regicide, and contrasts have no programmatic or automatic the public execution with the timetable answer, but depends on the response of The Law as Literature Approach of an 18th-century Parisian prison. the individual mind.” • The premise here is that both legal and It leads the readers to recognize how

S


GLSA Gazette

Weighing In

On the Brink of A New Age he sun is setting for Chief Executive, Sir Donald Tsang, and preparing to dawn on a new CE. According to Article 46 of the Basic Law, the CE can remain in office for a maximum of two consecutive fiveyear terms. For Tsang, this period ends 30 June 2012. At the time of writing, results of the upcoming election are not yet known but on 25 March 2012, a new CE will be elected and on 1 July 2012, will enter office, exactly 15 years after the handover.

T

The current CE election has once again sparked discussion on the topic of universal suffrage. For law students, the question is: when will universal suffrage be implemented in Hong Kong? Articles 45 and 68 provide that universal suffrage will eventually happen. But when exactly? Nobody knows. The promise of universal suffrage remains an elusively floating will-o’-the-wisp in Hong Kong politics. Tsang’s administration has established a timeline where 2017 may be the year when the CE is elected by universal suffrage. Under the NPCSC’s policy, that means the earliest the LegCo can be elected by universal suffrage would be in 2020, almost half of the promised time that Hong Kong’s way-of-life would be guaranteed. Is the Government’s timeframe justified? Perhaps we should instead ask whether Hong Kong is ready for universal suffrage.

According to the UNESCO Institute of Statistics, as of 2009, 94.0% of the adult population in Hong Kong is literate. Given such an educated population, it could logically be concluded that we are likely ready for universal suffrage. However, the recent focus on the CE candidates’ and the incumbent’s personal lives would seem to suggest that universal suffrage is not something that Hong Kong is ready for yet. Why are people so intently debating how

“Perhaps we should instead ask whether Hong Kong is ready for universal suffrage.” Henry Tang chooses to occupy his personal hours or how Tsang chooses to spend his money? The public seems more interested in the private lives of the candidates than political issues. Private lives can reflect a person’s character but without context, we cannot jump to conclusions. At best, such information is indulgent gossip fueled by the media. At worst, they are smear campaigns that are distractions from the real issues of economic development, the wealth gap, and political reform. It is disheartening to think that if you approached the average Hong Kong person and asked about Henry Tang’s political platform, the discussion would likely quickly

Opinion

Margaret Wo turn to the square footage of the illegal structures in his house. Based on how the media has portrayed the candidates and the public’s reactions, I think Hong Kong may not yet have the political maturity to shoulder the responsibility of voting. Although ‘smear campaigns’ and illinformed voting are commonplace among other democracies that have universal suffrage, Hong Kong should be distinguished from them. This is because a lot of what happens in other countries arise naturally from partisan competition. But having candidates associated to a party has its benefits. For example, many people vote because they have a good sense of what the party agenda is, rather than by what they know about the candidates. But in Hong Kong, the candidates are typically non-partisan, and with a lack of focus on individual candidate’s political agenda, it is difficult for the public to gauge their positions on important issues. What must be remembered is that voting is not simply a right of a citizen, but also a responsibility. This right should not be exercised wantonly. The benefits of universal suffrage are clear, but until more people learn to look past the popularity contest and really examine the politics behind the person, universal suffrage in Hong Kong would be a futile exercise. •

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glsa ćł•

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graduate law students association chinese university of hong kong

http://www.cuhkglsa.org

GLSA Gazette Spring 2012  

The gazette of the Chinese University of Hong Kong Gradaute Law Students Assocation - Hong Kong's largest law student organization

GLSA Gazette Spring 2012  

The gazette of the Chinese University of Hong Kong Gradaute Law Students Assocation - Hong Kong's largest law student organization

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