– Simon NM Young, University of Hong Kong
In my current research, I am trying to understand the influence of the Canadian Charter in Hong Kong’s development of human rights jurisprudence after returning to China in 1997. The prospects for migration were strong, though not because constitutional text had been transplanted. Canadians were involved in the early days of the Hong Kong Bill of Rights, which was essentially a transplant of the International Covenant on Civil and Political Rights in 1991. There was a kind of Charter euphoria in early Bill of Rights cases at least until 1993 when Lord Woolf’s criticisms of the Oakes test in Lee Kwong Kut  AC 951 (PC) made Hong Kong courts a little more critical. The post-1997 constitution, the Basic Law, had comparativism built-in, and the mechanism allowing foreign judges to sit on its new Court of Final Appeal (CFA) meant that Hong Kong would continue to look outwards for jurisprudential inspiration.
Thus it was of little surprise to find from a review of post-1997 decisions that when Charter law was cited (in over 40 cases) it was generally treated positively or neutrally by Hong Kong courts. There were only a few instances when Charter law was explicitly rejected and these were generally cases in which the Supreme Court of Canada (SCC) judges were themselves divided. The Hong Kong courts were not prepared to take self-incrimination law as far as it had been taken in R v Noble  1 SCR 874 and R v Henry  3 SCR 609. Nor was the CFA prepared to follow the stringent s. 7 review of absolute liability for underage sex offences, seen in R v Nguyen; R v Hess  2 SCR 906. But in the other direction, Charter law has been cited positively in many areas including constitutional remedies (given the common power to strike down), restrictions test, legal certainty, freedom of expression, freedom of thought, equality, right to vote, right to counsel, fair trial rights, right to silence, language rights, and freedom from cruel, inhuman or degrading punishment.
There are signs however that Charter law is becoming less persuasive in Hong Kong. Of the 70 CFA human rights decisions, only 15 (or 21 per cent) cited Charter case law, of which 10 showed positive treatment. And in the 14 rights cases decided in the past two years, only two Charter decisions were cited.
I try to explain these findings of impact by reference to five variables affecting the migration of Charter ideas. First, Charter law has been competing for influence in a growing and now substantial global marketplace of human rights law. Second, the rise of UK and European human rights law has had a distinct advantage in this competition for influence in Hong Kong given continued strong ties to the English legal system. Close examination of some English cases show, however, that they were themselves influenced by Charter jurisprudence, e.g. entrapment. Also where English law is undeveloped, e.g. constitutional remedies, Canadian law has been more influential. Third, there is an increasing trend towards more indigenous approaches to rights. This is due to constitutional problems unique to Hong Kong (e.g. right of abode cases) or the tendency to develop a distinct approach having canvassed different and varied common law approaches. This latter phenomenon is what I describe as the ‘common law melting pot’ effect of Hong Kong jurisprudence. Fourth and fifth are the variables of the intrinsic qualities of Charter decisions and the degree of exposure of Hong Kong judges to Charter law. While the first three variables tend towards less Charter migration, the last two under certain conditions could reverse that trend.
Professor Simon NM Young is Director of the Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong
Posted by Ran Hirschl