https://www.scmp.com/rss/9747/feed Professor Simon Young is associate dean (research) in the Faculty of Law and a practising Hong Kong barrister. He teaches criminal law and evidence in the Faculty's J.D. programme and a LL.M. course on human rights in the criminal process. He is known internationally for his scholarship on the Hong Kong political and legal systems, and the forfeiture of proceeds of crime. en https://assets.i-scmp.com/static/img/icons/scmp-meta-1200x630.png https://www.scmp.com The social unrest in Hong Kong since June 2019 has been heartbreaking. The scale of disruption and violence is unprecedented. People were harassed or attacked simply over the colour of their clothing. The verbal and emotional abuse arising from supporting the government or taking part in peaceful protest has been disturbing for all. The civil behaviour and good order that has characterised Hong Kong for generations seemed to disappear overnight. Road blocks, tear gas and confrontation between... https://www.scmp.com/comment/opinion/article/3112050/hong-kong-protests-show-arrested-youth-some-mercy-begin-healing?utm_source=rss_feed https://www.scmp.com/comment/opinion/article/3112050/hong-kong-protests-show-arrested-youth-some-mercy-begin-healing?utm_source=rss_feed Wed, 02 Dec 2020 01:15:11 +0000 Like a signal No 8 typhoon, the national security law directly hit Hong Kong just before midnight on July 1, leaving us to pick up the pieces. One of those pieces is its interpretation. Some have asked why bother as it is like other Chinese laws – vague and open to manipulation through interpretation by the authorities. Only the National People’s Congress Standing Committee appears to have the power to interpret the law. Let the political struggle continue, they say. As a law professor and... https://www.scmp.com/comment/opinion/article/3092022/why-beijing-must-respect-hong-kong-courts-interpretation-national?utm_source=rss_feed https://www.scmp.com/comment/opinion/article/3092022/why-beijing-must-respect-hong-kong-courts-interpretation-national?utm_source=rss_feed Wed, 08 Jul 2020 01:00:07 +0000 Looking at the Basic Law from different perspectives may yield different results. For the past 20 years, most people, including myself, have understood the Basic Law to be a legal instrument intended to continue and preserve Hong Kong’s way of life for at least 50 years under Chinese sovereignty. I call this the internal perspective, which looks at how the Basic Law serves the interests of Hong Kong and Hong Kong people. However, the internal perspective has proven to be divisive, one that sees... https://www.scmp.com/comment/insight-opinion/article/2100021/how-hong-kongs-basic-law-can-serve-interests-all-china?utm_source=rss_feed https://www.scmp.com/comment/insight-opinion/article/2100021/how-hong-kongs-basic-law-can-serve-interests-all-china?utm_source=rss_feed Tue, 27 Jun 2017 09:41:24 +0000 Let’s be clear on what this new United Kingdom Supreme Court decision (R v Jogee) on joint criminal enterprise might mean for Hong Kong. You and I plan to rob a 7-Eleven. You carry a wooden stick, and I know you’ll use it if you need to. I stand outside the store to keep watch. To my surprise, I hear a gun fired and see you running out of the store, one hand with a fistful of cash and the other holding a handgun. I run too. The cashier died from your gun shot to the head. Under the existing Hong... https://www.scmp.com/news/hong-kong/law-crime/article/1935253/landmark-uk-ruling-not-get-out-jail-card-hong-kong-felons?utm_source=rss_feed https://www.scmp.com/news/hong-kong/law-crime/article/1935253/landmark-uk-ruling-not-get-out-jail-card-hong-kong-felons?utm_source=rss_feed Mon, 11 Apr 2016 09:04:53 +0000 Many feel “one country, two systems” has suffered a serious blow from the mysterious circumstances of Lee Bo’s case, but it is too soon to conclude that the Basic Law has been violated. If Lee crossed the border voluntarily and on his own, there would be no Basic Law issue. If private individuals unconnected to the mainland government were involved in forcing or persuading Lee to cross the border then, again, it is difficult to see this as a constitutional crisis, even though such individuals... https://www.scmp.com/comment/insight-opinion/article/1902834/lee-bos-case-highlights-grey-areas-hong-kongs-basic-law?utm_source=rss_feed https://www.scmp.com/comment/insight-opinion/article/1902834/lee-bos-case-highlights-grey-areas-hong-kongs-basic-law?utm_source=rss_feed Tue, 19 Jan 2016 09:17:16 +0000 How do you know if you have a criminal record? Say you were convicted of careless driving, do you have a criminal record? What if the conviction was for possessing unregistered Chinese medicines or tax evasion? Unfortunately the process used to decide these questions in Hong Kong is neither clear nor satisfactory. Where a person has been convicted of an offence, the police have a discretionary power to retain the record of that offence and any other identifying particulars of the offender. The... https://www.scmp.com/comment/insight-opinion/article/1891082/do-you-have-criminal-record-scheme-set-law-needed-ensure?utm_source=rss_feed https://www.scmp.com/comment/insight-opinion/article/1891082/do-you-have-criminal-record-scheme-set-law-needed-ensure?utm_source=rss_feed Mon, 14 Dec 2015 08:30:45 +0000 As the Legislative Council prepares for its last year before the 2016 election, it is timely to reflect on its relationship with the executive branch. In his speech last month, Zhang Xiaoming , director of the central government's liaison office in Hong Kong, spoke of the Basic Law ideal that there be "cooperation" between the two branches and "checks and balances of power". With glass throwing in the chamber, endless filibustering and the ongoing saga of approval for the innovation and... https://www.scmp.com/comment/insight-opinion/article/1864171/cooperation-possible-between-hong-kongs-legislature-and?utm_source=rss_feed https://www.scmp.com/comment/insight-opinion/article/1864171/cooperation-possible-between-hong-kongs-legislature-and?utm_source=rss_feed Mon, 05 Oct 2015 08:45:30 +0000 The recent trial of the men who attacked former newspaper editor Kevin Lau Chun-to raised the issue of police brutality on the mainland in cross-border criminal cases. Without a fugitives surrender agreement there is little law to govern the capture and return of suspects from the mainland to Hong Kong. Important legal questions remain unclear. Do suspects enjoy Basic Law rights while being questioned by mainland officers? What are the consequences in Hong Kong if those rights are... https://www.scmp.com/news/hong-kong/article/1860216/upholding-rule-law-abuse-defendants-no-longer-part-job?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1860216/upholding-rule-law-abuse-defendants-no-longer-part-job?utm_source=rss_feed Mon, 21 Sep 2015 16:00:34 +0000 With no political reform in sight for at least the next seven years, what does this mean for the reform of criminal law and justice? The good news is that we do not expect to see an "Allegiance to Hong Kong Bill", like the one introduced recently in Australia to enhance anti-terrorism measures. Nor does Article 23 national security legislation stand a chance of returning any time soon. We are also lucky that we do not have "get tough on crime" political agendas thrust upon us by... https://www.scmp.com/news/hong-kong/law-crime/article/1829259/review-hong-kongs-outdated-english-criminal-law-long?utm_source=rss_feed https://www.scmp.com/news/hong-kong/law-crime/article/1829259/review-hong-kongs-outdated-english-criminal-law-long?utm_source=rss_feed Mon, 29 Jun 2015 19:37:50 +0000 Pan-democratic legislators have been calling for the withdrawal of the August 31 decision of the National People's Congress Standing Committee and for the reform process to begin anew. That's not going to happen in the current chief executive's term. Why do they ask for so much? Here's a novel idea: ask for only one of the restrictions in the August decision to be amended. Counter-propose that the number of candidates be from two to five, that's two more than the current maximum of three. Huh?... https://www.scmp.com/comment/insight-opinion/article/1780270/hong-kongs-pan-democrats-should-seek-increase-number-chief?utm_source=rss_feed https://www.scmp.com/comment/insight-opinion/article/1780270/hong-kongs-pan-democrats-should-seek-increase-number-chief?utm_source=rss_feed Wed, 29 Apr 2015 09:22:28 +0000 In Hong Kong, making ill-advised statements against courts or judges may land you in jail for scandalising the judiciary. It is contempt of court if a person, by words or conduct, intentionally or recklessly creates a real risk of undermining public confidence in the administration of justice. Criticism is fine, especially in a place that treasures freedom of expression, but it should offer "reasonable argument or expostulation" and be "within the limits of reasonable courtesy and good faith",... https://www.scmp.com/news/hong-kong/law-crime/article/1778118/should-hong-kong-abolish-offence-scandalising-judiciary?utm_source=rss_feed https://www.scmp.com/news/hong-kong/law-crime/article/1778118/should-hong-kong-abolish-offence-scandalising-judiciary?utm_source=rss_feed Mon, 27 Apr 2015 20:00:45 +0000 Everyone in Hong Kong has a constitutional right to a "choice of lawyers for timely protection of their lawful rights and interests" (Basic Law, Article 35). Is the right fully complied with when a police officer hands a suspect the Law Society's list of solicitors and says, "Choose!" If the suspect asks "Who can I call for free legal advice?", the answer will be "Try your luck with the list", whatever the hour or day. The Law Society has a free legal helpline but it works on the basis that a... https://www.scmp.com/news/hong-kong/article/1715583/getting-serious-about-suspects-right-timely-protection?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1715583/getting-serious-about-suspects-right-timely-protection?utm_source=rss_feed Mon, 16 Feb 2015 16:15:30 +0000 There are growing signs that both the central and Hong Kong governments no longer see universal suffrage in 2017 as a priority. Did they ever? I think they did because it was perceived as a way to confer greater legitimacy on those in power and thereby aid in their ability to govern. However, it seems that after the Occupy protests there is now an indifference if not hesitation in taking this major step in political reform. If movement towards universal suffrage invites disruptive unlawful... https://www.scmp.com/comment/insight-opinion/article/1679929/pan-democrats-must-seek-talks-veto-likely-serve-beijings?utm_source=rss_feed https://www.scmp.com/comment/insight-opinion/article/1679929/pan-democrats-must-seek-talks-veto-likely-serve-beijings?utm_source=rss_feed Thu, 15 Jan 2015 10:00:30 +0000 As we round out the year, I'd like to reflect on what in my view are the five most important criminal law decisions from our higher courts this year. At No 5 is HKSAR vs Krieger, a case of alleged bribery of Macau's Ao Man-long, in which the defendants were acquitted in the Court of Appeal and the prosecution was denied leave to appeal further. This case held that it is not a criminal offence to form plans in Hong Kong to bribe an overseas official. It exposed another loophole in our bribery... https://www.scmp.com/news/hong-kong/article/1668022/looking-back-top-criminal-law-decisions-year-hong-kong?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1668022/looking-back-top-criminal-law-decisions-year-hong-kong?utm_source=rss_feed Mon, 22 Dec 2014 20:42:05 +0000 More than 320 people have been arrested over the Occupy Central protests. In theory, thousands may be liable to prosecution. How should the Department of Justice handle potential prosecutions? As the police will obtain the department's advice before laying charges, it plays a central role in deciding the appropriate criminal justice response. Its task will not be easy. Already, pro-establishment legislators are asking how prosecutions will be handled, while the public is concerned a stricter... https://www.scmp.com/news/hong-kong/article/1636759/protesters-prosecutions-call-sensible-approach?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1636759/protesters-prosecutions-call-sensible-approach?utm_source=rss_feed Mon, 10 Nov 2014 20:45:30 +0000 For 37 years, the city has had a two-tier system to treat police complaints. One tier handles the complaint; the other has oversight of the handling of the complaint. A police section known as the Complaints Against Police Office (Capo) receives the complaints. Its work is monitored by the Independent Police Complaints Council (IPCC) to ensure the reports are handled fairly and with a degree of transparency. As one is naturally suspicious of the police policing themselves in this area, the IPCC... https://www.scmp.com/news/hong-kong/article/1593223/police-watchdog-facing-challenges?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1593223/police-watchdog-facing-challenges?utm_source=rss_feed Mon, 15 Sep 2014 20:36:00 +0000 One cannot but be left feeling shocked, disappointed and cheated by the National People's Congress Standing Committee's decision on universal suffrage. Who was there to speak on behalf of Hong Kong people's interests in the Beijing meetings last week? Not the Hong Kong deputies to the NPC who were only observers with their own interests to protect. Deputies are elected by a body made up primarily of members of the same committee that has nominated and will continue to nominate chief executive... https://www.scmp.com/comment/article/1582950/faced-beijings-political-reform-decision-pragmatism-must-guide-legislators?utm_source=rss_feed https://www.scmp.com/comment/article/1582950/faced-beijings-political-reform-decision-pragmatism-must-guide-legislators?utm_source=rss_feed Mon, 01 Sep 2014 08:15:45 +0000 In preparing its two recent political reform reports, the Hong Kong administration's strategy was to avoid provocative statements and appear neutral and open. Notice no references to the State Council's recent white paper. The aim was to ease tensions, at least until the Standing Committee of the National People's Congress delivered its decision in late August and took the blame for any consequences. Judging from the public reaction to the reports, the strategy appears to have flopped. There are... https://www.scmp.com/comment/article/1556108/selective-report-electoral-reform-consultation-further-divides-hong-kong?utm_source=rss_feed https://www.scmp.com/comment/article/1556108/selective-report-electoral-reform-consultation-further-divides-hong-kong?utm_source=rss_feed Fri, 18 Jul 2014 06:45:00 +0000 In a China Daily editorial published earlier this year, the Occupy Central campaign was labelled "a kind of terrorism". Is this characterisation correct under Hong Kong law? Consider the definition of a "terrorist act" in our United Nations (Anti-Terrorism Measures) Ordinance, enacted in 2002 after the September 11 attacks on the US. A terrorist act involves the threat of action with the intention to compel the government to do something, and to advance a political or ideological cause. There... https://www.scmp.com/news/hong-kong/article/1543767/occupy-has-nothing-fear-anti-terror-law?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1543767/occupy-has-nothing-fear-anti-terror-law?utm_source=rss_feed Mon, 30 Jun 2014 19:54:52 +0000 By running the State Council's recent white paper through anti-plagiarism software, one finds a similarity index of appropriately 29 per cent. This means that close to a third of the text (albeit mostly in small chunks) can be found in sources already in the software's database. It confirms the common reaction that the document does not tell us much new. The software's colourful report readily reveals the non-highlighted parts representing original writing, such as those concerning foreign... https://www.scmp.com/comment/article/1534777/white-paper-fails-its-lopsided-view-one-country-two-systems?utm_source=rss_feed https://www.scmp.com/comment/article/1534777/white-paper-fails-its-lopsided-view-one-country-two-systems?utm_source=rss_feed Tue, 17 Jun 2014 09:15:30 +0000 Recent articles in this paper (February 17) have been critical of corruption in the mainland parole system. What about the system in Hong Kong? What is it like and are there risks here that wealthy prisoners might be able to bribe their way to an early release? Given the design of the city's parole system, I see little, if any, risk of such blatant corruption occurring here. I have had the privilege of serving on one of our "parole boards" for the past six years. I put the words in quotation... https://www.scmp.com/news/hong-kong/article/1510722/hong-kongs-prison-system-designed-deter-blatant-corruption?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1510722/hong-kongs-prison-system-designed-deter-blatant-corruption?utm_source=rss_feed Mon, 12 May 2014 19:51:58 +0000 Article 5 of the Hong Kong Bill of Rights protects the right to "security of person". Unfortunately this has been a dormant right, neglected by courts and legal practitioners. It deserves greater attention in current discussions on protecting vulnerable people, such as domestic helpers and prostitutes. Three months ago, a similarly worded right empowered the Supreme Court of Canada to strike down three long-standing prostitution offences: being in a brothel, living on the proceeds of... https://www.scmp.com/news/hong-kong/article/1450934/restrictions-may-violate-rights-vulnerable?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1450934/restrictions-may-violate-rights-vulnerable?utm_source=rss_feed Mon, 17 Mar 2014 19:15:22 +0000 A person's "reasonable expectation of privacy" in today's Hong Kong appears to be under threat. American intelligence whistle-blower Edward Snowden told us how easy it is for our most personal communications to be the subject of surveillance. Recently, this paper disclosed that Hong Kong police in a single year carried out twice the number of stop and searches recorded in New York and London combined. A consultation proposes another warrantless police power to test individuals for drug use,... https://www.scmp.com/news/hong-kong/article/1371265/our-expectation-privacy-being-diminished?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1371265/our-expectation-privacy-being-diminished?utm_source=rss_feed Mon, 02 Dec 2013 20:30:30 +0000 After barrister Philip Wong Chi-wai's exoneration by the Court of Final Appeal recently, the buzz in the legal community is that the final court never convicts lawyer defendants. This assertion is untrue. The court has left undisturbed the criminal convictions of lawyers including Peter Lau Kam-ying (2013), Stanley Ma Ho-fai (2011), Peter Chan (2005) and Dixon Tang Kwok-wah (2001). No doubt the mistaken impression arises from recent high-profile acquittals: Winnie Lo Wai-yan, exonerated last... https://www.scmp.com/news/hong-kong/article/1336723/top-court-convicts-lawyers-so-why-recent-acquittals?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1336723/top-court-convicts-lawyers-so-why-recent-acquittals?utm_source=rss_feed Mon, 21 Oct 2013 20:32:09 +0000 What are we doing in Hong Kong to address the problem of defendants being unrepresented in their criminal appeals? Maybe you did not know there was a problem. Perhaps you have not heard the distress signals in recent decisions. Take the November 2012 judgment of Mr Justice Andrew Macrae (sitting with Mr Justice Michael Lunn and Mr Justice Ian McWalters) in which he wrote, after allowing an appeal on a robbery conviction: "We would like to register our concern that legal aid was refused on the... https://www.scmp.com/news/hong-kong/article/1307150/lack-legal-aid-inhibiting-delivery-effective-justice?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1307150/lack-legal-aid-inhibiting-delivery-effective-justice?utm_source=rss_feed Mon, 09 Sep 2013 16:00:00 +0000 Recent homicides have left journalists wondering how much they can report while police investigate. The public's desire to know is insatiable, and journalists provide valuable context to otherwise inexplicable crimes. But when should information be held back to avoid contempt of court? The relevant branch of contempt law here involves publication likely to prejudice the fairness of the defendant's trial. The law is easy to state but challenging to apply. It aims to protect the integrity of the... https://www.scmp.com/news/hong-kong/article/1288632/reporting-crime-how-much-can-be-told-trial?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1288632/reporting-crime-how-much-can-be-told-trial?utm_source=rss_feed Mon, 22 Jul 2013 16:00:00 +0000 Copper lightning rods were stolen from the switch rooms of a Kowloon housing estate on a day in December 2010. The burglar appeared to have had a key because there was no damage to the doors, which locked automatically. No one saw the burglary, so there was no visual identification evidence. The only evidence against the defendant, Mr Chiu, was that his fingerprint was found on the inside of the wooden door of one of the switch rooms. The expert witness could not tell how long the fingerprint... https://www.scmp.com/news/hong-kong/article/1247608/case-fingerprint-switch-room?utm_source=rss_feed https://www.scmp.com/news/hong-kong/article/1247608/case-fingerprint-switch-room?utm_source=rss_feed Mon, 27 May 2013 16:00:00 +0000 Hong Kong's recent decision in a court case on state immunity has drawn little discussion of its implications for human rights protection. The implications were not obvious, as the case involved an American vulture fund suing the Democratic Republic of Congo to collect a sovereign debt. Legally, however, the case governs all claims of immunity made in Hong Kong courts, including those made by a serving or former head of state. Holding that our immunity law must align with mainland China's,... https://www.scmp.com/article/975141/open-abuse?utm_source=rss_feed https://www.scmp.com/article/975141/open-abuse?utm_source=rss_feed Mon, 01 Aug 2011 16:00:00 +0000 Will we simply have to live with the status quo if the government's political reform package fails to win backing from two-thirds of the Legislative Council? Some indeed believe this, but there are reasons to doubt the correctness of their position. First, the Basic Law cannot allow the political system to stand still. Articles 45 and 68 are like edicts that mandate a certain degree of progression towards universal suffrage - albeit gradual and orderly - with each new election of a chief... https://www.scmp.com/article/522913/room-manoeuvre-existing-system?utm_source=rss_feed https://www.scmp.com/article/522913/room-manoeuvre-existing-system?utm_source=rss_feed Mon, 31 Oct 2005 16:00:00 +0000 The flaws with the functional constituencies are so numerous and entrenched, it is difficult to say exactly where reform should begin. There are the obvious points: extend the vote to the remaining 95 per cent of the electorate who are presently excluded; eliminate the gross disparities in constituency size; recognise more 'functions' so that stay-at-home spouses, vets, and others, can vote; and abolish corporate voting to stop the unfair advantage of using controlled entities to realise... https://www.scmp.com/article/464867/dysfunctional-constituencies?utm_source=rss_feed https://www.scmp.com/article/464867/dysfunctional-constituencies?utm_source=rss_feed Fri, 30 Jul 2004 16:00:00 +0000 It has been 10 months since the national security bill was shelved by the Tung administration. As time passes, Article 23 feels like the sword of Damocles ready to fall on us at any minute. But rather than wait for the government to drop the sword, political leaders should use the Legislative Council election campaign to air and debate views not so much on the substance of Article 23, but on the best method of implementation. The failure to enact the security bill could probably have been... https://www.scmp.com/article/463715/time-resume-article-23-debate?utm_source=rss_feed https://www.scmp.com/article/463715/time-resume-article-23-debate?utm_source=rss_feed Tue, 20 Jul 2004 16:00:00 +0000 Most people would agree that, in times of unrest and internal subversion, the police should have effective powers to enforce the law and maintain public order. But in times of peace and stability, very few would suggest that more powers should be added to the arsenal already enjoyed by the police. The government's proposed powers of search without a warrant for Article 23 offences lacked constitutional legitimacy because it failed to meet a strict test of necessity and due proportion. The... https://www.scmp.com/article/421100/less-more?utm_source=rss_feed https://www.scmp.com/article/421100/less-more?utm_source=rss_feed Tue, 08 Jul 2003 16:00:00 +0000