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In the News

Opening salvos fired in battle of right of abode

Updated: 2011-08-23 07:02
By Joseph Li (HK Edition)

Two-day hearing to decide if maids have right to permanent residency in SAR

Foreign domestic helpers who have lived in Hong Kong for seven years or more should be entitled to the right of abode under terms of the Basic Law, a lawyer for the domestic workers told the opening of a judicial review on Monday.

Gladys Li argued that restrictions limiting the right of abode of foreign domestic helpers under the Immigration Ordinance are at variance with the Basic Law, and she called on the court to declare the restrictive provisions unconstitutional.

David Pannick, counsel for the government, however, argued that foreign domestic helpers should not be deemed to have "ordinarily resided in Hong Kong".

On that basis he argued the Immigration Ordinance is constitutional and the foreign domestic helpers are not entitled to the right of abode.

The controversial judicial review before Justice Johnson Lam of the Court of First Instance arises from a challenge of the Hong Kong government's rejection of applications for Hong Kong permanent residency.

Consideration has also been given to seeking an interpretation of the applicable articles of the Basic Law by the National People's Congress Standing Committee. Such an interpretation may be requested at any stage of the judicial proceeding.

The petitioner in the case is Evangeline Banao Vallejos, who first came to Hong Kong in 1986 and has been serving the same employer since 1987.

When she applied for a permanent resident identity card in 2008, her application was rejected.

She appealed before the Immigration Tribunal in 2010, but was once again rejected.

The tribunal at that time declared her ineligible under the law, sparking the current judicial review.

In her submission, Li said Vallejos had resided in Hong Kong for more than seven years, in line with Article 24(2)(4) of the Basic Law regarding persons not of Chinese nationality.

The meaning of the language of the article is plain, clear and does not carry any additional condition, Li submitted, and the additional restrictions imposed under the Immigration Ordinance are therefore unconstitutional.

Pannick, arguing for the government, said, the terms of residency of domestic helpers in Hong Kong are "out of the ordinary", given that their stay is subject to a number of conditions.

Among other things, the workers are subject to two-year employment contracts, are required to reside in the homes of their employers, are not allowed to bring in their spouses or children, and the employers are required to pay for the workers' passage from Hong Kong to their place of origin.

These control measures indicate Hong Kong is not their place of origin, he said, since they are designed to maintain links to their place of origin.

Pannick also referred to Article 154(2) of the Basic Law, noting that the Hong Kong government may impose immigration controls on entry, stay or departure of persons from foreign places.

The hearing is expected to conclude on Tuesday. It is uncertain when the judgment on the matter will be rendered.


Mainland moms press bid for residency right

Updated: 2011-09-01 06:30
By Andrea Deng (HK Edition)

Single mothers from the mainland once again called on the SAR government to allow them to remain in Hong Kong to take care of their children.

The petitioners said on Wednesday they are still awaiting one-way permits from the mainland.

Sze Lai-shan, of the Society for Community Organization, cited the response from a local public security authority in Guangdong as saying "there is no specific policy or guideline to approve the issue of one-way permits (to these mothers)".

The single mothers, who are either divorced or widowed, do not fit any of the five categories of people approved for one-way permits to stay in Hong Kong.

But according to Sze, there are still quotas left every day to issue one-way permits to the 7,000 mothers.

"The government has a responsibility either in talking to mainland policymakers about the issue of one-way permits, or using discretionary power to renew their documents or issue identity cards so that they can legally stay in Hong Kong," Sze said during a protest at the Immigration Department on Wednesday.

"After all, their children are permanent Hong Kong residents. This is for the benefit for the family and social development of Hong Kong in the long run," she added.

The Immigration Department said that it is not for the SAR government to decide whether to issue the one-way permits.

However, the department pledged that it will inform concerned departments on the mainland about these special cases.

According to Sze, Fanny Law Fan Chiu-fun, a Hong Kong deputy to the National People's Congress, also promised to propose a solution to the absence of policy.

Currently, the mothers have to return constantly to the mainland to renew their travel documents, either the permits to visit relatives in Hong Kong or two-way permits, which allow them to stay in Hong Kong for three months at most.

In many occasions, their children end up having to ask for school leaves for as long as 16 days in order to return with them to the mainland for permit renewals.

"The negative impact on the children, most of whom are still in primary schools, includes their underperformance at school and a sense of inferiority, either because other kids laugh at them or they are in economic adversity," Sze said.

With the mothers not allowed to work in Hong Kong, these families can only rely on the Comprehensive Social Security Assistance, of HK$3,400 a month.

"I feel very afraid that my mom will never come back to Hong Kong every time she returns to the mainland to renew the document. Sometimes she's back to the mainland for nearly a month," said 11-year-old Ho Chun-wai.

"Sometimes I cannot concentrate in class. My classmates know that my mom does not have a Hong Kong identity card, and they will say things like my dad has gone to heaven," he said.

Ho's mother now holds a multiple-entry permit which allows her to stay in Hong Kong for one year without having to renew.
But she said she was afraid to renew when the permit expires in October.

Many mothers who have applied for renewal of the same permit were rejected.

"We have been concerned about this problem for a couple of years, and the government seems to be dodging the responsibility. The number will keep increasing if the problem remains unsolved as cross-border marriage is also increasing," Sze said.


China Law News


  • Arbitration
    Singapore Gains as Hong Kong Follows China Rule on Immunity
  • Internet Law
    Rule stiffens penalties for hackers
  • Environmental
    China's 12th Five-Year Plan Lays Out Ambitious Blueprint, But Data Challenges Remain
  • Trademark
    China Trademark Law amendment for public
  • Trademark
    Court rules iPad news app illegal, levies fine

Singapore Gains as Hong Kong Follows China Rule on Immunity

On Aug. 26, China approved an interpretation of Hong Kong's Basic Law that states the city should follow central government policy giving countries absolute immunity.

Singapore, which allows sovereign states to be sued on commercial and contractual issues, has opened its legal market to foreign law firms and offered tax incentives in a challenge to Hong Kong for international arbitration business. Hong Kong handled 25 percent more international cases than Singapore last year, compared with having nearly three times as many arbitration cases as Singapore in 2009.

Continue reading at: http://www.bloomberg.com/

Rule stiffens penalties for hackers

BEIJING - Hackers who broke into 20 or more computers will face jail terms of up to seven years, according to a new judicial interpretation issued jointly by the China's Supreme People's Court and Supreme People's Procuratorate.

People who hack from 20 to 100 computers, or steal from 10 to 50 user names and passwords for online-payment or stock accounts, will get at least three years in prison. And those who hack even more computers or steal more passwords will face jail terms of up to seven years.

The latest rule, an interpretation made to deal with online crimes, which were added to the Criminal Law in 2009, also applies to Chinese hackers who steal information from foreign computers, said Zhou Guangquan, a member of the National People's Congress's law committee and a professor in criminal law at Tsinghua University.

Continue reading at: http://usa.chinadaily.com.cn/china/2011-08/30/content_13216410.htm

China's 12th Five-Year Plan Lays Out Ambitious Blueprint, But Data Challenges Remain

In March, China released its 12th Five-Year Plan– a blueprint outlining the key economic and development targets for the country over the next few years. Unlike previous Plans, climate change and energy are featured prominently, and a strong emphasis is placed on a slower, more sustainable growth trajectory. Not only is the 12th Five-Year Plan the first to mention climate change, but it adopts as part of national, binding law the climate pledges China first made at the United Nations Framework Convention on Climate Change (UNFCCCC) Copenhagen climate summit in December 2009. Binding targets for a range of other environment and energy issues are also included in the Plan, including important air and water quality pollutants that were previously absent.

Part of the country's ability to achieve these targets will be in its capacity to measure and track progress toward its goals. The Chinese government has pledged implementation of “well-equipped and statistical and monitoring systems” and “index evaluation systems” in the 12th Five Year Plan, indicating an increasing awareness of the importance of data, information and robust infrastructure to ensure targets are met. However, while there are signs of China's move toward a more “data-driven” approach to decision-making in the formulation of the latest Plan, political sensitivities around pollution information still persist, meaning China may still confront challenges when trying to improve environmental conditions.

Continue reading at: http://environment.yale.edu/envirocenter/post/

China Trademark Law amendment for public

To strengthen the administration of trademarks, China's State Council Legislative Affairs Office on the 2nd draft published a draft revised Trademark Law, to seek public views of the community.

With the continuous economic and social development, and new things to apply for trademark registration of cases is gradually increasing. Compared with the existing provisions of the Trademark Law, the draft adds “voice” may apply for registration as trademarks. Draft regulations, anything that can be natural persons, legal persons or other organizations, goods and distinguish the goods of others a sign, including text, graphics, letters, numbers, three-dimensional marks, color and sound, as well as combinations of these elements are as trademark application for registration.

Continue reading at:http://www.china-daily.org/China-News/China-Trademark-Law-amendment-for-public-comment/

Court rules iPad news app illegal, levies fine

BEIJING - Haidian District People's Court recently ruled that an iPad application for Chinese-language news violates copyrights, levied a 100,000-yuan ($15,600) fine and ordered the developer to withdraw the software.
The lawsuit filed by Beijing News alleged Minesage Co Ltd illegally used its content and layouts in software that was developed for the iPad.
The newspaper discovered the app called Chinese Newspapers last year before it developed its own software for the iPad.
"We sent documents to the company asking them to stop the violation, but got no response," said a spokesman for Beijing News. "As a result, to protect our intellectual property rights and profits, we made the decision to bring legal action against the software developer."
Continue reading at: http://english.peopledaily.com.cn/90882/7584619.html



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© Lehman, Lee & Xu 2011.
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