Mai Junhao
Hong Kong is set to begin its quadrennial election day for the Legislative Council tomorrow. While still recovering from the Tai Po fire, the city is once again in election mode, albeit in a more solemn mood. Candidates are making final efforts to garner support while citizens make up their minds on whom to support. As one voter said, “life goes on, I will vote this Sunday because it is my civic duty and I believe even one vote can make a difference.”
Yesterday, Secretary for Health Lo Chung-mau announced the heartwarming news that all hospitalized victims of the Tai Po fire were no longer in critical condition. In the wake of this sudden and tragic disaster, the people of Hong Kong have demonstrated outstanding resilience and solidarity that has won worldwide praise. Tomorrow’s LegCo election will be a sign that Hong Kong has successfully overcome the disaster and is ready for a new chapter.
Certain foreign media outlets and malicious actors have tried to paint a gloomy picture for Hong Kong recently, portraying Hong Kongers as too grief-stricken to vote and the SAR government as inconsiderate for pushing ahead with the election. This is both misleading and irresponsible. There is no contradiction between voting in the Legislative Council election and mourning the fire’s victims, just as there is no contradiction between holding an election and disaster relief. The people of Hong Kong have proven capable of being both outstanding citizens and empathetic human beings, and the SAR government has proven capable of taking care of affected residents and organizing the election at the same time. So far, the government has arranged temporary housing for nearly 4,000 affected residents and provided dedicated social workers for each affected family, with the official relief fund receiving more than HK\$3 billion in donations.
There is still much to be done, and this can only be achieved by first getting the best possible candidates into the Legislative Council. Taking care of displaced residents of Wang Fuk Court and rebuilding their homes requires legislative approval for relevant expenditure. As the government launches an independent commission to investigate the fire, it is up to the Legislative Council to pass laws that would strengthen safety measures and prevent future disasters. Many candidates have voiced their views on this matter and promised to make this their immediate priority in office.
Besides the aftermath of the Tai Po fire, legislators also have much long-term work laid out for them. On the one hand is the need to navigate China–US rivalry and global geopolitical turmoil, on the other is the need to better integrate into China’s overall development plans and continue to maintain Hong Kong’s special status. Hong Kong also needs to revitalize and reform its economy by utilizing the latest technological innovations, while tackling deep-seated social problems to improve people’s livelihood. The demand for capable legislators has never been greater. All 161 candidates have demonstrated their qualifications and visions for the coming four-year term, and it is up to the voters to decide which ones are most suitable for their own best interests and those of Hong Kong as a whole.
Just as Hong Kongers have come together to show support for victims of the fire, they will come together to show their support for a better tomorrow with their votes. This great city has gone through many periods of great hardship in its history—from the brutalities of World War II to the financial crisis of 1997 and the global pandemic of recent memory—yet none has managed to crush the optimistic spirit of its people, and Hong Kong has emerged from each one more confident and prosperous than ever. As its citizens turn out to cast their votes tomorrow, we have every reason to believe in a brighter future for Hong Kong.
InsightSpeak
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by Dr. Celeste Lo, Solicitor
In my recent research, I uncovered a noteworthy U.S. district court decision that directly engaged with Hong Kong’s National Security Law (NSL) and related judicial determinations (Chung Chui Wan v. Michel Dale Debolt, No. 20-cv-3233, 2021 WL 1733500 (C.D. Ill. May 3, 2021)). This ruling presents significant jurisprudential implications that warrant careful examination, which this analysis will explore.
The case involved a child custody dispute under the Hague Convention on the Civil Aspects of International Child Abduction, implemented in the U.S. via the International Child Abduction Remedies Act. The respondent (father) had unilaterally removed the children from Hong Kong to the U.S. in August 2020. The petitioner (mother) sought the children’s mandatory return under the Convention, while the father invoked three exceptions on the grounds of “age and maturity” (Article 13), “grave risk” (Article 13) and “protection of human rights and fundamental freedoms” (Article 20) to oppose the petition.
Regarding the “grave risk” defence, the father argued that the children would face a grave risk of harm because Hong Kong would not adequately protect the children after the passage of the NSL. Moreover, the NSL had unleashed a psychological war, and the children would have to live under the culture of fear and silence instilled by the NSL.
In evaluating the father’s claim, the court scrutinised the legal threshold for “grave risk”. It emphasised that a generalised risk of violence in a jurisdiction was not enough. The potential harm to the children must be severe, and the legal of risk and danger required to trigger the “grave risk” exception had consistently been held to be very high. The gravity of a risk involved not only the probability of harm, but also the magnitude of harm if the probability materialised.
The U.S. court thus reviewed Hong Kong’s constitutional and legal framework post-1997, including the “One Country, Two Systems” principle, the large-scale protests in 2019, and the NSL’s enactment. Notably, it cited the Hong Kong Court of Final Appeal’s ruling in HKSAR v. Lai Chee Ying [2021] HKCFA 3, which affirmed that the rights, freedoms and values in the Basic Law and the Bill of Rights [Ordinance] were to be protected and adhered to in applying the NSL. The court therefore found no evidence that the Basic Law had ceased to exist or that the children would face arbitrary detention risks.
The father’s expert, Dr. Phil C.W. Chan, claimed Hong Kong’s rule of law had “collapsed,” but the court dismissed this as highly speculative. Conversely, it credited testimony from the mother’s expert, Mr. Azan Aziz Marwah, a Hong Kong barrister, who confirmed that the Basic Law was still intact and the people of Hong Kong enjoyed freedom and human rights. The court concluded that returning the children to Hong Kong posed no grave risk.
On the Article 20 “human rights and freedoms” exception, the court noted this defence had never been used in a published opinion in the U.S. to prevent the return of children, and this case did not present circumstances that would make it the first. Even if this exception was applicable, the respondent had not presented sufficient evidence that returning the children to Hong Kong would raise “human rights concerns” or “utterly shock the conscious of the court”. The situation in this case certainly did not rise to that level.
As the first U.S. case to engage substantively with the NSL, this ruling notably affirmed that the continued operation of rights and freedoms under Hong Kong’s Basic Law, while offering an implicit counterpoint to politicised narratives about Hong Kong’s legal environment by grounding its analysis in documented legal protections rather than speculative assertions.
While the decision contained certain factual inaccuracies (notably the erroneous suggestion that Hong Kong was “meant to have governing autonomy until 2034”), its overall evaluation of Hong Kong’s post-NSL legal framework demonstrates judicial restraint. This case establishes an important precedent suggesting that U.S. courts may adopt a more nuanced approach than political rhetoric when assessing Hong Kong matters. The decision warrants careful consideration by policymakers formulating evidence-based positions on Hong Kong-related issues.
