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Newsletter - March 2008
2008-03-27 Dear Colleague Lent purple giving way to Easter lilywhite is such a symbol of hope. As I write, the events in Tibet continue to be deeply disturbing. May hope come to the Tibetans soon and a more genuinely tolerant policy granted to them! Race Discrimination follow-up I went to Geneva as planned on 3 March 2008 to brief the UN Committee on the Elimination on All Forms of Racial Discrimination (CERD) on Hong Kong’s Race Discrimination Bill. Our delegation and presentations were received with great interest and understanding. Follow-up action was swift. On 7 March, the Chairman of CERD wrote to the Permanent Representative of the PRC to request that the Bill be amended to address the four major flaws identified in the Bill and to submit a report before 1 July 2008. Otherwise the PRC will be put on the list of state parties for periodic review. This is a serious sanction. You will find my report on the Geneva visit on my website, as well as the CERD letter. The most recent move of the Government is to propose amendments to Clauses 3 and 4 of the Bill while refusing to amend Clause 8(3) and Clause 58 to remove the immunities of discrimination on the basis of resident or nationality status and discrimination by way of language. The proposed amendment of Clause 3 to read “This Ordinance binds the Government” is a slight improvement. It means the Government is bound in the specified areas of activities in the Bill, but not otherwise in its day-to-day operations and exercise of power. The proposed amendment to Clause 4 removes the “reasonable practicability” justification from the definition of “indirect discrimination” and brings the Clause in line with similar provisions in the other 3 discrimination ordinances. It does nothing to remove known defects of these provisions. Thus, these proposals of the Government are inadequate to address CERD’s concern. We will have to work harder. At the same time, I feel that if all political parties pledge their support, it will be difficult for the Government to say “No”. You can help by calling up or writing to legislators and their parties. Public space in Times Square Public furore was sparked off when in a Commercial Radio phone-in programme revealed that a large area of Times Square is supposed to be reserved as a public space, not least because the space is regularly rented out for exhibitions for large sums and even for a café, while members of the public are frequently shooed away. I asked a question in LegCo on 5 March. The answer was, unsurprisingly, unsatisfactory. A search has turned up the Deed of Dedication of 30 July 1992 (Memorial No.5380714) whereby, in exchange for the benefit of excess site coverage and plot ratio, the owner covenanted to dedicate an area of 3017.708 square metres “unto the public for the purposes of pedestrian passage and passive recreation “for the lifetime of the building to be erected”, i.e. Times Square. There is no clause allowing any profits to be made, although “temporary structures … for the purpose of temporary exhibitions and displays” are permitted provided they do not impede the general right of the public usage aforesaid. So why is the Government unable to enforce the covenant and protect the public right which the public has paid amply for? Why should not an account of receipts be demanded? There are many more examples of these lands and buildings deals. All lack transparency and accountability. If they are enforceable, why should they not be enforced? If they are not enforceable, what sort of deals are these? Since the Attorney General – if the Secretary for Justice is he – has the power and duty to protect the public interest, I thought I should ask him to consider intervening. Accordingly, I wrote the SJ a letter on 12 March 2008. His reply is eagerly awaited. Meanwhile, there are the remaining lists of cases, under various arrangements, but all involving public spaces in the charge of private developers/owners. In a place as congested as Hong Kong, the provision and retention of public spaces are a vital part of Government policy and administration, and we all have a stake to get to the bottom of these arrangements and ask whether they work. Prosecution and sex shots I am obliged to the Department of Justice for providing for discussion in the AJLS Panel detailed account of the circumstances leading to the prosecution and detention of Mr. Chung Yik-tin for “publishing an obscene article”, namely, one photograph alleged to be obscene. From the account, the charge was made by the Police and not on the advice of prosecution counsel, who was consulted only on the legal meaning of “publication”. Then the police asked for prosecution counsel to be provided to oppose bail and he did so on instructions. Police representative admitted that it was unprecedented for bail to be opposed on a similar charge on the basis of one photo. The whole thing is most regrettable. I expressed my view that the Prosecution Division should be vigilant not to be used as a rubber stamp for an overly zealous police. The intriguing question of whether the classification of an article by the Obscene Articles Tribunal (OAT) should precede or follow charge was hotly but inconclusively debated. The existing system and function of OAT is being reviewed. Wasted costs in criminal cases Scrutiny of the Statutory Law (Miscellaneous Amendment) Bill 2007 was suspended last September for the Administration to reach compromise with the Bar and Law society on broadening the ambit of conduct of the legal representative which may attract an order of the Court for wasted costs to be paid by him. In the event, no compromise was reached. The profession remains opposed to the amendment. The Bills Committee considered the matter, and came to the view that the proposed amendment should not be supported. The main reason is that the broadened scope, as admitted by the Administration, is more or less co-extensive with professional misconduct. Alleged misconduct can be adequately dealt with by disciplinary action. To put the legal representative at risk of a wasted costs order appeal from which is arduous and expensive with no provision for the vindicated representative to recover costs, is an unjustifiable risk to fearless advocacy in criminal proceedings in the Hong Kong context. The Bills Committee was unanimous in deleting the Clause from the Bill and will move a Committee State Amendment (CAS). Another CSA I shall move on behalf of the Bills Committee is to delete the Clause changing “public order, or ordre public” to “public order” from the Public Order Ordinance and Societies Ordinance, arising from the Judgment of the Court of Final Appeal in HKSAR v Leung Kwok-hung and others (FACC Nos.1 & 2 of 2005). This is because we are not convinced that the amendment, intended to clarify the law, may in fact result in lesser and not greater freedom of expression and association. In our opinion, the law should be reviewed as a whole before any amendment is proposed, and we recommend the Government to do so. Friday Tea Gatherings Thanks to the kindness of Mr. Justice Cheung JA, the notes of his talk on Application for Leave to Appeal now are available on request. Dr. Edmund Woo’s powerpoint of his talk on the neurological aspects of head trauma – which kept everyone in the huge audience wide awake – can be downloaded directly from my website. For May, I have the great honour of presenting to you the Law Draftsman, Mr. Eamonn Moran, PSM, QC who arrived just a few months ago to take up this challenging post. Professor Bill Barron is nothing short of inspiring on sustainable development – something which all of us should think about seriously. Ms. Barbara Hung will share her observations as one of our most senior practitioners in the family court on cross-border complications on matrimonial matters. Please see details in the annexed programme. I am sure you will enjoy them all. Yours sincerely Margaret Ng |
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