Final ruling in Congo case toes the line

PUBLISHED : Friday, 09 September, 2011, 12:00am
UPDATED : Friday, 09 September, 2011, 12:00am

The landmark 'Congo case', which in deciding Hong Kong's policy on state immunity triggered the first court request to Beijing for a Basic Law interpretation, has finally ended.

The Court of Final Appeal yesterday handed down its final judgment in the case, confirming a provisional ruling in June that a state's commercial activities are immune from litigation in Hong Kong.

Mr Justice Patrick Chan Siu-oi, Mr Justice Roberto Ribeiro and Mr Justice Anthony Mason said it was in line with the interpretation made by the Standing Committee of the National People's Congress two weeks ago.

Mr Justice Kemal Bokhary and Mr Justice Barry Mortimer, who had opposed the referral to Beijing, said: 'Now that the Standing Committee has given an interpretation, we recognise that these appeals must be decided in conformity with that.'

The case involved millions of dollars of decades-old debt owed by the Democratic Republic of Congo to FG Hemisphere, a US fund. FG took the fight to Hong Kong, where some of the assets it is owed are stashed, but Congo claimed immunity.

Yesterday's verdict capped a process fraught with worries of damage to judicial independence and how it would play out. But it ran largely as expected, with Beijing playing by the book after the court referred the issue strictly according to the Basic Law.

'I looked at the interpretation to see if they talked about things they shouldn't have, legal principles, that would be dangerous, but I haven't seen that,' Simon Young Ngai-man, associate law professor at the University of Hong Kong, said. 'It was brief, to the point and relatively short.'

However, there is still a long way to go in terms of transparency of the interpretation, which is still essentially a legislative process on the mainland. The parties involved had no chance to put their case to Beijing, and there were no records of how the standing committee consulted the Basic Law Committee.

The Department of Justice yesterday welcomed the court's judgment, which it said 'clarifies an important area of the law in Hong Kong'.


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