Articles: Human rights
Tam Sze Leung & others v Commissioner of Police
HK Court of Appeal, 14-Apr-2023
The Police win their appeal.
HK Court of Appeal, 14-Apr-2023
The Police win their appeal.
Court dismisses challenge to SFC's power of issuing restriction notices
| Judgment
SFC, 28-Sep-2022
This relates to an investigation into an alleged pump-and-dump scheme in shares of WMCH Global (8208), which crashed 92% on 26-Nov-2020. The applicants had earlier succeeded in a judicial review of Police "letters of no consent" to "informally" freeze bank accounts. This time, the same judge, Russell Coleman, upheld the SFC's powers.
SFC, 28-Sep-2022
This relates to an investigation into an alleged pump-and-dump scheme in shares of WMCH Global (8208), which crashed 92% on 26-Nov-2020. The applicants had earlier succeeded in a judicial review of Police "letters of no consent" to "informally" freeze bank accounts. This time, the same judge, Russell Coleman, upheld the SFC's powers.
Tam Sze Leung & others v Commissioner of Police
HK Court of First Instance, 30-Dec-2021
Justice Russell Coleman finds that the issue of "letters of no consent" by the Police to "informally" freeze bank funds of persons under investigation is ultra vires and unconstitutional. The proceedings reveal that the SFC is investigating the applicants for suspected stock market manipulation in a pump-and-dump scheme between 2018 and 2020. The SFC referred a suspicion of money-laundering to the Police, which then asked 3 banks to file Suspicious Transaction Reports in order to trigger LNCs. The tail was wagging the dog.
HK Court of First Instance, 30-Dec-2021
Justice Russell Coleman finds that the issue of "letters of no consent" by the Police to "informally" freeze bank funds of persons under investigation is ultra vires and unconstitutional. The proceedings reveal that the SFC is investigating the applicants for suspected stock market manipulation in a pump-and-dump scheme between 2018 and 2020. The SFC referred a suspicion of money-laundering to the Police, which then asked 3 banks to file Suspicious Transaction Reports in order to trigger LNCs. The tail was wagging the dog.
HK Journalists Association & others vs Commissioner of Police
HK Court of First Instance, 19-Nov-2020
The court declares: “The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation."
HK Court of First Instance, 19-Nov-2020
The court declares: “The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation."
Leslie Grant Horsfield & family v CE of HKSAR
HK Court of First Instance, 22-May-2020
The applicants, HK Permanent Residents arriving from South Africa, unsuccessfully seek release from inbound quarantine.
HK Court of First Instance, 22-May-2020
The applicants, HK Permanent Residents arriving from South Africa, unsuccessfully seek release from inbound quarantine.
Syed Agha Raza Shah v Director of Health
HK Court of First Instance, 13-May-2020
The applicant, a HK Permanent Resident returning from Pakistan, fails to obtain release from government quarantine to serve home quarantine instead, an option afforded to arrivals from certain other countries with high rates of COVID-19 infection.
HK Court of First Instance, 13-May-2020
The applicant, a HK Permanent Resident returning from Pakistan, fails to obtain release from government quarantine to serve home quarantine instead, an option afforded to arrivals from certain other countries with high rates of COVID-19 infection.
24 legislators v CE in Council & others
HK Court of Appeal, 9-Apr-2020
The CA overturns the CFI and rules that the Emergency Regulations Ordinance is constitutional. It also rules that the anti-mask regulation made under the ERO is constitutional for unauthorized assemblies, but it upholds the CFI's ruling that the regulation is unconstitutional in the case of authorized meetings and marches. We expect both sides to go to the Court of Final Appeal.
HK Court of Appeal, 9-Apr-2020
The CA overturns the CFI and rules that the Emergency Regulations Ordinance is constitutional. It also rules that the anti-mask regulation made under the ERO is constitutional for unauthorized assemblies, but it upholds the CFI's ruling that the regulation is unconstitutional in the case of authorized meetings and marches. We expect both sides to go to the Court of Final Appeal.
24 legislators v CE in Council & others
HK Court of Appeal, 10-Dec-2019
The court refuses the Government's applications for a Temporary Validity Order for the anti-mask law or a Temporary Suspension Order of the Court of First Instance judgment that the ERO (in cases of public danger) and most of the PFCR (even if passed by LegCo) are unconstitutional. The substantive appeal will be heard on 9-10 January 2020.
HK Court of Appeal, 10-Dec-2019
The court refuses the Government's applications for a Temporary Validity Order for the anti-mask law or a Temporary Suspension Order of the Court of First Instance judgment that the ERO (in cases of public danger) and most of the PFCR (even if passed by LegCo) are unconstitutional. The substantive appeal will be heard on 9-10 January 2020.
24 legislators v CE in Council & others
HK Court of First Instance, 22-Nov-2019
The judges decline to grant a Temporary Validity Order or a Suspension Order, but grant A 7-day interim suspension order to give time for the respondents to apply to the Court of Appeal for interim relief.
HK Court of First Instance, 22-Nov-2019
The judges decline to grant a Temporary Validity Order or a Suspension Order, but grant A 7-day interim suspension order to give time for the respondents to apply to the Court of Appeal for interim relief.
24 legislators v CE in Council & others
HK Court of First Instance, 18-Nov-2019
Justices Anderson Chow and Godfrey Lam rule that the Emergency Regulations Ordinance, in cases of public danger, is unconstitutional; the CE cannot bypass LegCo and make laws on her own. They also rule that the anti-mask law, even if passed by LegCo, would be unconstitutional except for the subsection outlawing masks in unlawful assemblies.
HK Court of First Instance, 18-Nov-2019
Justices Anderson Chow and Godfrey Lam rule that the Emergency Regulations Ordinance, in cases of public danger, is unconstitutional; the CE cannot bypass LegCo and make laws on her own. They also rule that the anti-mask law, even if passed by LegCo, would be unconstitutional except for the subsection outlawing masks in unlawful assemblies.
MK v HKSAR Government
HK Court of First Instance, 18-Oct-2019
Justice Anderson Chow rules that the denial of same-sex marriage under HK law is not unconstitutional, nor is the lack of an alternative framework for recognition of same-sex relationships. However, he calls on the Government to undertake a comprehensive review of its policies and laws to avoid ongoing challenges on discrimination or other grounds. He also notes that "it is open to the legislature to recognise and provide for same-sex marriage by legislation if it chooses to do so".
HK Court of First Instance, 18-Oct-2019
Justice Anderson Chow rules that the denial of same-sex marriage under HK law is not unconstitutional, nor is the lack of an alternative framework for recognition of same-sex relationships. However, he calls on the Government to undertake a comprehensive review of its policies and laws to avoid ongoing challenges on discrimination or other grounds. He also notes that "it is open to the legislature to recognise and provide for same-sex marriage by legislation if it chooses to do so".
ERO: one judicial review, two judges
Webb-site has learned that in a very rare move, the Chief Justice has directed that 2 judges sit together in the Court of First Instance to hear the judicial review of the Chief Executive's use of the Emergency Regulations Ordinance. (16-Oct-2019)
Webb-site has learned that in a very rare move, the Chief Justice has directed that 2 judges sit together in the Court of First Instance to hear the judicial review of the Chief Executive's use of the Emergency Regulations Ordinance. (16-Oct-2019)
Carrie Lam and the separation of powers
After trying to breach the firewall between the 2 Systems with the Extradition Bill, she's at it again, invoking the ERO to enact law by regulation. The PFCR, which she says is subsidiary legislation, sets penalties higher than permitted by Ordinance. Subsidiary legislation cannot override existing Ordinances, so she had better not try. Meanwhile, basic maths and weekend events suggest the anti-mask law fails the rational connection test and is unconstitutional. (8-Oct-2019)
After trying to breach the firewall between the 2 Systems with the Extradition Bill, she's at it again, invoking the ERO to enact law by regulation. The PFCR, which she says is subsidiary legislation, sets penalties higher than permitted by Ordinance. Subsidiary legislation cannot override existing Ordinances, so she had better not try. Meanwhile, basic maths and weekend events suggest the anti-mask law fails the rational connection test and is unconstitutional. (8-Oct-2019)
24 legislators v CE in Council & others
HK Court of First Instance, 8-Oct-2019
Justice Godfrey Lam declines to grant an interim injunction against the Prohibition of Face Coverings Regulation issued by CE Carrie Lam under the Emergency Regulations Ordinance.
HK Court of First Instance, 8-Oct-2019
Justice Godfrey Lam declines to grant an interim injunction against the Prohibition of Face Coverings Regulation issued by CE Carrie Lam under the Emergency Regulations Ordinance.
"Long Hair" gets short cut to final appeal
| Justice is blind, except for haircuts
HK Court of Final Appeal, 13-Aug-2019
Mr Leung is granted leave for a final appeal to be heard on 18-Feb-2020. More people in wigs will hear his plea that male and female prisoners should have the same rule on haircuts. The UK removed the different treatment by 1999, as we reported last year in "Justice is blind, except for haircuts", after the Court of Appeal overturned the First Instance judgment which was in his favour.
HK Court of Final Appeal, 13-Aug-2019
Mr Leung is granted leave for a final appeal to be heard on 18-Feb-2020. More people in wigs will hear his plea that male and female prisoners should have the same rule on haircuts. The UK removed the different treatment by 1999, as we reported last year in "Justice is blind, except for haircuts", after the Court of Appeal overturned the First Instance judgment which was in his favour.
Leung Chun Kwong v Civil Service & Inland Revenue
HK Court of Final Appeal, 6-Jun-2019
In a victory for common sense, Mr Leung, a gay man legally married overseas, wins. The CFA unanimously overturns the Court of Appeal, which found that the "prevailing views of the community on marriage" was relevant. In a nutshell, the whole point of prohibiting discrimination against minorities is to prevent the majority view (if there is one) from trampling over their rights. The CFA also held that there was no rational connection between denying Leung his employment benefits and joint taxation and protecting the institution of heterosexual marriage (if that is a legitimate aim).
HK Court of Final Appeal, 6-Jun-2019
In a victory for common sense, Mr Leung, a gay man legally married overseas, wins. The CFA unanimously overturns the Court of Appeal, which found that the "prevailing views of the community on marriage" was relevant. In a nutshell, the whole point of prohibiting discrimination against minorities is to prevent the majority view (if there is one) from trampling over their rights. The CFA also held that there was no rational connection between denying Leung his employment benefits and joint taxation and protecting the institution of heterosexual marriage (if that is a legitimate aim).
"Long Hair" v Commissioner of Correctional Services
| Justice is blind, except for haircuts
HK Court of Appeal, 22-Jan-2019
Mr Leung's application for leave to appeal to the CFA is dismissed. Mr Leung must now take a short-cut, so to speak, and go directly to the CFA, where more people in wigs may hear his plea that male and female prisoners should have the same rule on haircuts. Amazingly, neither side seems to have mentioned that the UK removed the different treatment by 1999, as we reported last year in "Justice is blind, except for haircuts".
HK Court of Appeal, 22-Jan-2019
Mr Leung's application for leave to appeal to the CFA is dismissed. Mr Leung must now take a short-cut, so to speak, and go directly to the CFA, where more people in wigs may hear his plea that male and female prisoners should have the same rule on haircuts. Amazingly, neither side seems to have mentioned that the UK removed the different treatment by 1999, as we reported last year in "Justice is blind, except for haircuts".
QT v Director of Immigration
HK Court of Final Appeal, 4-Jul-2018
The CFA upholds the CA ruling that QT was subject to unreasonable discrimination in her application for a dependent visa on grounds of her homosexuality, as there was no rational connection between the stated objective of attracting talent to HK and the policy restricting this benefit to heterosexual married persons. The CFA, disagreeing with the CA, also rules that there are no "core rights and obligations" of marriage such as adoption or inheritance that are immune from justification when discrimination is alleged.
HK Court of Final Appeal, 4-Jul-2018
The CFA upholds the CA ruling that QT was subject to unreasonable discrimination in her application for a dependent visa on grounds of her homosexuality, as there was no rational connection between the stated objective of attracting talent to HK and the policy restricting this benefit to heterosexual married persons. The CFA, disagreeing with the CA, also rules that there are no "core rights and obligations" of marriage such as adoption or inheritance that are immune from justification when discrimination is alleged.
Leung Chun Kwong v Secretary for the Civil Service & another
| SDO Section 7
HK Court of Appeal, 1-Jun-2018
The CA overturns the CFI decision granting Mr Leung benefits for his same-sex partner/spouse and upholds the decision denying him joint assessment for tax. The bigger question, regardless of sexual orientation, is this: why does the Government grant benefits based on marital status in the first place, and is that legal? The Sex Discrimination Ordinance, Section 7(1), prohibits discrimination based on marital status. Employees of equal rank and performance should not have different value of remuneration based on marital status. Mr Leung's complaint was that he did not qualify for discriminatory treatment in favour of married people, but why is there any such discrimination?
HK Court of Appeal, 1-Jun-2018
The CA overturns the CFI decision granting Mr Leung benefits for his same-sex partner/spouse and upholds the decision denying him joint assessment for tax. The bigger question, regardless of sexual orientation, is this: why does the Government grant benefits based on marital status in the first place, and is that legal? The Sex Discrimination Ordinance, Section 7(1), prohibits discrimination based on marital status. Employees of equal rank and performance should not have different value of remuneration based on marital status. Mr Leung's complaint was that he did not qualify for discriminatory treatment in favour of married people, but why is there any such discrimination?
Justice is blind, except for haircuts
The Court of Appeal rules that a prison order requiring men to have short hair and allowing women to choose is not discriminatory, because of societal norms for haircuts. We find substantial flaws in this reasoning. We also find that the UK rule which HK inherited was amended by 1999 to remove the discrimination, something that Long Hair's lawyers appear to have overlooked. (1-May-2018)
The Court of Appeal rules that a prison order requiring men to have short hair and allowing women to choose is not discriminatory, because of societal norms for haircuts. We find substantial flaws in this reasoning. We also find that the UK rule which HK inherited was amended by 1999 to remove the discrimination, something that Long Hair's lawyers appear to have overlooked. (1-May-2018)
QT v Director of Immigration
HK Court of Appeal, 25-Sep-2017
In a landmark decision, the Court unanimously grants the appeal by a person in a same-sex British civil partnership, ruling that the policy indirectly discriminates against gay couples in a civil partnership or marriage recognised overseas, because it grants a benefit (a dependent visa) only to spouses as defined by HK law, of the opposite sex, for which they cannot qualify. There is no rational connection between the legitimate aim of immigration control and the means adopted. Our take: this very thorough and well-reasoned ruling will impact other policies which adopt heterosexual marriage as a criterion for benefits. The Government may try to go to the Court of Final Appeal, but they are unlikely to succeed in overturning this.
HK Court of Appeal, 25-Sep-2017
In a landmark decision, the Court unanimously grants the appeal by a person in a same-sex British civil partnership, ruling that the policy indirectly discriminates against gay couples in a civil partnership or marriage recognised overseas, because it grants a benefit (a dependent visa) only to spouses as defined by HK law, of the opposite sex, for which they cannot qualify. There is no rational connection between the legitimate aim of immigration control and the means adopted. Our take: this very thorough and well-reasoned ruling will impact other policies which adopt heterosexual marriage as a criterion for benefits. The Government may try to go to the Court of Final Appeal, but they are unlikely to succeed in overturning this.
Leung Kwok Hung v Commissioner of Correctional Services
HK Court of First Instance, 17-Jan-2017
In a victory for male equality, "Long Hair" succeeds in a judicial review of the decision to require that his hair be cut short on admission to prison. The rules state that a female prisoner is entitled on request to have her hair cut "especially before discharge or production in court. Except as recommended by [Medical Officer], a female prisoner's hair shall not be cut shorter than the style on admission without her consent." A point not addressed is that men are apparently not entiled to have a haircut before court appearances.
HK Court of First Instance, 17-Jan-2017
In a victory for male equality, "Long Hair" succeeds in a judicial review of the decision to require that his hair be cut short on admission to prison. The rules state that a female prisoner is entitled on request to have her hair cut "especially before discharge or production in court. Except as recommended by [Medical Officer], a female prisoner's hair shall not be cut shorter than the style on admission without her consent." A point not addressed is that men are apparently not entiled to have a haircut before court appearances.
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