Mileage Run to Hong Kong, and Oral Arguments at the Hong Kong Court of Final Appeals

December 16th, 2016

Last December, I visited Singapore (and its Supreme Court) for the mileage run that brought me to Platinum status on United (75,000 miles). This December, I visited Hong Kong, which elevated my status to 1K on United (100,000).

I took a direct flight from Newark, which was nearly 16 hours long. The 777-200 business first section had a 2-2-2 layout. I sat in the middle, which is ideal, because no one would need to hop over me to access the aisle. This seat also allowed me to deploy my second monitor for maximum productivity. If only there was some way to utilize the LCD display built into the seat! (I’m pretty sure doing so would violate some federal law).


Hong Kong consists of a series of islands, and a peninsula which is connected to mainland China. The vistas are spectacular. This is the view from the Peak Tram, the highest point in Hong Kong.


Although the United Kingdom handed control of Hong Kong back to China in 1997, the “Special Administrative Region” as it is called, maintains a high degree of autonomy. (Recently, China started a controversy by intervening in a local election). One of the few reminders was the presence of Chinese flags on all buildings. One of which was the Hong Kong Court of Final Appeal, which I visited.


The Court of Final Appeal remains a common law court, and follows the precedent of UK courts.


Fortuitously, while I was visiting, the Court heard arguments in the case of HKSAR (Hong Kong Special Administrative Region) v. Chan Kam Shing. Appeals are heard by five judges, including the Chief Justice, three permanent judges (PJ), and one non-permanent judge from another common-law jurisdiction. Permanent judges serve till the retirement age.  The non-permanent judges come from overseas on a rotating basis, and serve for one month at a time. (This is one way to force the court to consider international law!).

Chan Kam Shing was heard before Chief Justice Ma, Mr. Justice Ribiro PJ, Mr. Justice Tang PJ, Mr. Justice Fok PJ, and Lord Hoffman NJP. Without a doubt, the all-male court is committed to the jabot. This is some serious neck doilage.


The case itself was fascinating. The Appellant was convicted by a jury on one count of murder. Though he was not present at the scene of the murder, the prosecution charged that as a gang member, he was part of a joint plan with a common purpose. The Appellant countered that he was not part of that joint plan. The state of the “doctrine of joint enterprise,” was unsettled following the UK Supreme Court’s 2016 decision in R. v. Jogee, which held that “foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability.” Specifically, “the mental element for secondary liability is intention to assist or encourage the crime.” It is not dispositive that the secondary simply “foresaw the possibility” that the primary might commit the crime. Jogee overturned a 1985 decision of the Privy Council, which (coincidentally) concerned an appeal from Hong Kong. The South China Morning Post offered this analysis.

The Court offered this handout:


The oral arguments in Chan Kam Shing centered around how Jogee affected the appellant’s conviction. Counsel for the appellant argued that after Jogee, the government had a much higher burden of proof to establish secondary liability. The Court, at least from my vantage point, was not buying her argument. Early on in her argument, the attorney offered to walk the Court through 500 years of accomplice liability caselaw. My ears perked up, hoping for some good ‘ole fashioned Lord Coke! The Chief Justice shot her down, immediately. He said something to the effect of “We are not interested in history. We are interested in practicalities.” I nearly stood up to object, but had to constrain myself. The remainder of the argument consisted of the Justices asking questions, which attempted to read Jogee as narrowly as possible. Lord Hoffman, for example, argued several times that the government doesn’t have to prove the secondary foresaw the primary would murder, but it was enough that he may murder. The Chief also offered a similar hypothetical, about a group of gang members that go out to commit a robbery with knives and baseball bats; if someone winds up dead, the secondary–even if not a participant–should have foresaw that was a likely outcome.

I had a fairly packed schedule that day, so I budgeted an hour for oral arguments. That was a mistake. As best as I can tell, there are no time limits. None. The attorney for the appellant was at the lectern for nearly 90 minutes when I had to leave, and showed no signs of wrapping up. I couldn’t believe how much leeway the Court gave her. For about 10 minutes, she read verbatim from several reported court decisions. Again, I almost jumped up and shouted, “Counselor, we are familiar with the record.” Then she asked the Justices to flip to Volume 2, Tab 25 (or some such number). They each had about 8 binders in front of them, and spent 30 second flipping to the correct page. Then she asked the Justices to listen, as she read from what seemed to be a law professor’s article. She explained that the “academic” point is important. Somewhere Chief Justice Roberts was carping about Bulgarian evidentiary law. On a related note, as the attorney for the appellant made her arguments, the attorney for the government repeatedly shook his head and mouthed “No.” (He did his best Sam Alito impression). I couldn’t believe there was such poor decorum from a government lawyer before the state’s highest tribunal.

Perhaps the most jarring aspect of the case was that the defendant was present in the courtroom! He was seated in (what looked like) a bullet-proof glass enclosure. He was surrounded by three guards holding rifles. The defendant was also listening to a real-time translations of the proceedings into Cantonese. (Before the hearing began, a clerk offered several people in attendance wireless headphones).

It was a fascinating experience.