Former Bar Association head: Members will unite behind new chair Philip Dykes to face challenges

Former Bar Council chairperson Paul Lam has said that “the Bar is one big family” and that members will unite behind newly-elected head Philip Dykes to take on “the many challenges Hong Kong will face in the coming year.”

Dykes was elected chairman of the Council in a surprise victory on Thursday evening, beating Lam by around 100 votes. Four other prominent lawyers on his team — Johannes Chan, Lawrence Lok, Erik Shum and Randy Shek — also won seats on the 20-member Council. On Lam’s proposed list of members, Kim Rooney was elected.

The Bar Council governs the Bar Association, an influential professional organisation for barristers in Hong Kong. It is the first election in over a decade which has seen competition. Around 400 of the city’s practising barristers voted in person, drawing long lines in Hutchison House, Admiralty. Others voted by proxy ballot.

Dykes previously headed the Council in 2005 and 2006. His team’s platform focussed onreforming legal aid and providing more assistance to young barristers.

philip dykes list

In a concession speech posted onto his team’s page, Lam extended his congratulations to Dykes and wished him all the best. He also expressed warm gratitude towards members for their trust and faith. “Many more of you have come to the AGM to support us than we had dared to believe. A big thank you.”

Under Paul Lam, the Bar released strong statements on the controversial joint checkpoint arrangement for the Express Rail Link, the uproar over the jailing of seven police officers convicted of assault, the imprisonment of pro-democracy protesters in August, as well as the recent sentencing of Frankly Chu, a now-retired superintendent who assaulted a pedestrian.

‘Strong and powerful defender’

The Progressive Lawyers Group’s Craig Choy told HKFP that he was very happy about the outcome of the election as he had supported Dykes’ list, and five of the six members won seats.

Asked about his expectations towards Dykes, Choy said that he hoped he could continue to be vocal on behalf of the Bar Association: “I’ll be content if he can respond to society’s expectations and the wishes of the public. The upcoming year is especially critical because of the three major issues — the national anthem law, Article 23 [of the Basic Law] and other matters relating to the co-location arrangement.”

Choy also said he often speaks to young barristers who discuss their struggles about surviving in the industry and he hoped Dykes could give assistance to them, whether it’s through communicating with the government or exploring new initiatives.

craig choy

Senior Counsel Audrey Eu, who supported Philip Dykes, gave thanks to all her fellow barristers who voted. “Paul Lam’s campaign emphasised ‘apolitical’ — grateful to the barristers who did not shy away from defending the rule of law because they were afraid of politics,” she said on social media.

Civic Party lawmaker and barrister Alvin Yeung also thanked Dykes for “coming forward even in the midst of misfortunes in life and making preparations for an election campaign in an extremely short amount of time.” Dykes recently lost his daughter.

“In these times, Hong Kong really needs a strong and powerful defender like him to defend the cornerstone of rule of law as the circumstances grow increasingly challenging,” Yeung said.

This article originally appeared in Hong Kong Free Press on 19 January 2018

【國歌法殺到】中港法制存異 法政匯思憂人大再釋法

《國歌法》本地立法在即,法政匯思發言人蔡騏指出,中港兩地法制存在差異,對於法律字眼的理解亦有不同。內地就國歌法就不尊重國歌行為條文的演繹,可能與香港出現不同理解。就如立法會議員宣誓案中,兩地對莊嚴一詞的理解差異,引發人大主動釋法,6名議員因而喪失資格。日後本港國歌法的條文想法會否有機會引發釋法,令人擔憂。

記者 鄭啟源蔡騏續指,內地《國歌法》對於不尊重國歌行為,設行政拘留的罰則,香港卻沒有行政措施的安排,草擬本地立法時如何處理這問題,亦需留意。再者,在《國歌法》判斷違法行為的標準也是另一焦點,以往一般人是因主動作出某種行為,因而干犯刑事罪行,惟國歌法可能因沒有做某種行為,如未有肅立而負刑責。蔡促政府立法期間清晰訂明甚麼行為會視為干犯不尊重國歌,令市民有心理準備,否則執法時只會引起大量爭拗。

(原文載於2018年1月14日《蘋果日報》)

【國歌法殺到】民主國家罰則全面睇 大狀:多限制或抵觸國際公約

內地《國歌法》經已實施,港府正就本地立法草擬法案文本。法政匯思比較多個地區國歌法相關條文,發現相對尊重人權的民主國家,較少在相關法例內訂罰則,對奏唱行為亦較少規範。法政匯思召集人蔡騏質疑,若香港未來立法條文,與內地國歌法相似,勢影響言論、表達及創作自由。

法政匯思研究歐、美及亞洲部分國家的奏唱國歌的規管。根據其觀察,英國、澳洲、南韓及台灣等民主國家,均沒有訂立國歌法;美國、加拿中及日本等大致沒有為不尊重國歌行為訂罰則,只有美國個別州份罰款100美元;台灣曾有針對奏唱國歌時不起立致敬的行為罰款,但已廢除;馬來西亞則罰款100馬幣(約190港元)或入獄1個月;泰國不尊重國歌行為則視為侮辱王室,屬可判監3至15年的重罪。

日本1999年訂立國歌法後,法例條文雖沒有規範奏唱行為,亦沒有對不尊重國歌行為訂出罰則。當地教育部門就另訂指引,要求在校內推廣國歌的愛國教育,並強烈建議在畢業禮等儀式奏唱國歌。日本國歌在當地被視為軍國主義象徵,有教師拒絕校方奏唱國歌的要求,被減薪及拒絕續聘處分,引發大量訴訟,部分案件仍正審理。惟日本最高法院裁定,因校方指令並未要求教師認同國歌內容,不涉侵害言論自由及良知,判教師敗訴。

香港回歸前跟隨英國成為《公民權利和政治權利國際公約》締約地區,基本法訂明有關規定在回歸後繼續有效,須通過本地法律實施。蔡騏續指,《公約》第19條列明只要不涉國家安全或公共秩序,人人都應享有自由發表意見的權利。在香港的確會有人不認同中共專制政權,未必能接受奏唱國歌,歌頌專制政權。若立法時對奏唱國歌行為施加太多限制,將有機會抵觸《公約》第19條。

蔡騏續指,對國歌是否尊重,本質上與國家安全無關,「根本唔會因為唔尊重嘅行為,影響到國家安全。除非有人覺得唔尊重,就影響到政權管治的安全,影響到個政權,就等於影響國家」。他促港府在本地立法時必須充分考慮,平衡新法例對表達自由及言論自由,會否造成箝制效果。

(原文載於2018年1月14日《蘋果日報》)

兌現成立法政匯思承諾 任建峰卸任召集人

「法政匯思」成員任建峰(圖)噚晚正式卸任召集人同埋核心小組成員嘅職銜,淡出組織,將時間畀番家人。任建峰話3年前成立「法政匯思」,已經講明只做3年,當時好多人都唔信佢,事實證明佢係會兌現承諾。

任建峰2014年成功向律師會前會長林新強發起不信任動議,將林新強拉下台,一舉成名。之後佢聯同比較年輕嘅法律界人士組成議政團體「法政匯思」。

繼續做會員 寫法律親子文章

「法政匯思」噚晚舉行周年大會,任建峰卸任召集人。佢話因為2014年律師會嗰場特別會員大會,成功向林新強提出不信任動議,令佢感受到一份責任,於是開始參與公共事務,「當我做了要做的事,我就不應繼續逗留」。

佢話仍然會喺「法政匯思」做普通成員,參加每月聚會,日後會繼續就法律、政治,同埋較軟性議題如親子、飲食等寫評論文章。

(原文載於2018年1月13日《明報》)

Police look into whether Hong Kong justice chief ‘intentionally misled’ bank to secure mortgage

Police are looking into complaints filed against Hong Kong’s beleaguered justice minister, with sources saying one line of inquiry will be whether she “intentionally misled” a bank to secure a mortgage without mentioning an illegal basement at her house.

The scandal over Teresa Cheng Yeuk-wah’s failure to disclose illegal structures at her HK$26 million home in Tuen Mun deepened as the NeoDemocrats made a report at police headquarters in Wan Chai on Friday, a day after another opposition group, the Labour Party, filed a similar complaint.

Both parties accused Cheng of keeping the basement off the books to secure mortgage loans from a bank in 2008.

A police source close to the matter said officers were “assessing if a criminal element was involved” but that the case would not be passed on to the Commercial Crime Bureau at this stage.

“We cannot only rely on the mortgage document as revealed in media. We have to look into details of the deal,” the veteran commercial crime investigator said. “We will look if the accused person intentionally misled the bank to receive the loans.”

For now, the case has been classified as “a request for police investigation”.

The mortgage document in question, signed in October 2008 for Cheng’s home at the Villa De Mer estate, did not mention the existence of a basement, which was among 10 illegal extensions identified by Buildings Department inspectors at her house and her husband Otto Poon Lok-to’s home next door.

Cheng maintained that all illegal structures were already there when she bought the three-storey house.

The document was signed between Cheng’s company, Sparkle Star Development, and Standard Chartered Bank (Hong Kong), describing the house as “comprising a ground floor, a first floor, a second floor, and a roof together with the garden and carport”.

Barrister Duncan Ho Dik-hong, a member of the Progressive Lawyers Group who specialises in land and property transaction cases, did not suspect any deception.

“The mortgage document simply stated the description of the property and Cheng made no declaration that the property was free of unauthorised building works,” Ho said, adding that even if the bank was aware of any illegal structures, it did not mean it would reject the loan application.

While Cheng has asserted it was “not a question of common sense” that she should have checked the legality of the extensions, a 2003 court case studied by the Posthighlighted her expertise on the issue of illegal structures.

The case involved the buyer of a flat under construction complaining about defects when he inspected it upon completion. Cheng, representing the buyer, argued they amounted to illegal building works because they were not done according to requirements under the Buildings Ordinance.

The Department of Justice has not responded to Post inquiries about the scandal the last two days.

Her critics argued that Cheng should have been aware of her own situation, given her ample experience in the field as a former head of an appeal panel on building disputes and co-author of the book Construction Law and Practice in Hong Kong.

Opposition lawmakers also remained suspicious over the chief executive’s permission for Cheng to continue handling six outstanding arbitration cases from her private practice, saying the justification offered so far had failed to ease public concerns.

An official statement released late on Thursday night said it would be irresponsible for Cheng to drop the cases – which had reached the adjudication stage and were expected to be concluded in a few months – at this point, as this would not be conductive to the development of Hong Kong as a regional arbitration centre.

Cheng was quoted as saying the cases did not concern her job as justice minister, the government or any public institutions.

Civic Party lawmaker Tanya Chan said the public was still in the dark as to whether there was any conflict of interest.

“I understand it would be difficult for the government to disclose the details of the cases, but it should at least appoint a third party – an arbitrator or someone with a legal background – to study the six cases independently to affirm there is no conflict of interest,” she said.

Lawmaker Horace Cheung Kwok-kwan of the pro-establishment Democratic Alliance for the Betterment and Progress of Hong Kong said it would be inappropriate to demand Cheng drop the arbitration cases at this stage as it would be unfair to the parties concerned.

Party veteran Starry Lee Wai-king, who chairs the legislature’s house committee, on Friday rejected the pan-democrats’ request to hold a special meeting to grill Cheng over the scandal.

《有話直說》一地兩檢硬通過?

Thank you FinTV (現代電視) for interviewing our member Chris Ng on proposed co-location arrangement: 「其實我們不是不支持起高鐵,但若真的破壞了《基本法》,會留下影響深遠的法律漏洞,當中關乎香港人日後各種權利的保障,我們要思考這樣的代價是否值得。」

The video was originally broadcast in FinTV on 5 January 2018