查看完整版本 : Judicial review 政府在上周五出的辣招

catmo1 2012-11-3 02:20

Actually, this is infringment of basic law of HK,
Chapter V, section 1, Art 109, 115, 118, 119
Especially, 118, Encouraging investments?
119, Promote the Development of Real Estate market?

Can we try?

jimbo86 2012-11-3 14:31

most law didnt want to be contrary to public policy, the very compelling reason to stop flat speculation is to reduce exploiting the poor folks who will never be able to own any flat at all. then again hk govt is it really acting on the welfare of its own people ? I have no answer for that.
it would become a vicious cycle, have nots will continue to hammer the law makers and more marches , rallies to annoy the ruling junta anyways. law makers can be sitting under the sword of damocles at times.
no law are perfect.

catmo1 2012-11-4 00:54

I don't care whatever purpose the government has about the new policy.  Basic Law is the most important part of Hong Kong constitution.  We need to entrench the solemnity of it.  What I am going to challenge is the new policy against the basic law with whatever excuse the government has.  JR is the last safeguard for check and balance the executive (government).

On the bases of  Chapter V, section 1, Art 109, 115, 118, 119 infringements.  The court should allow the hearing.

[url]http://www.basiclaw.gov.hk/en/basiclawtext/chapter_5.html[/url]
For Article 119, The Government of the Hong Kong Special Administrative Region shall formulate <b>appropriate policies to promote and co-ordinate the development of various trades</b> such as manufacturing, commerce, tourism, <b>real estate</b>, transport, public utilities, services, agriculture and fisheries, and pay regard to the protection of the environment.
****
The new policy is now giving hurdle to people invest money to promote development of HK.
The new tax for foreigners to invest is an opposite of "promote and co-ordinate" in our statutes.
*****
Art 118, The Government of the Hong Kong Special Administrative Region shall provide an economic and legal environment for encouraging investments, technological progress and the development of new industries.  
*****
The new tax now having an effect of "discouraging investments" in our real estate market.

Just based on these 2 grounds, the court should at lease open a hearing.

jimbo86 2012-11-4 05:43

I take u sided with the haves, but watch what u pray for someday it may actually come thru for u.
have a taste of your own medicine may not be all that palatable.

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for me,
and there was no one left to speak for me.

Mumba 2012-11-14 06:59

Based on what u said, any form of levies and taxes which hinder trade would be unconstitutional.  Good, I'll join your suit and raise you the normal stamp duties, car first registration tax, income tax, duties on petrol, alcohol, cigarettes............  since the duties on cigarettes is not promoting a fair trade of agriculture and the duties on petrol and car registration tax is not helping with promotion of trade in transport

[[i] 本帖最後由 Mumba 於 2012-11-14 07:03 AM 編輯 [/i]]

kingme 2012-11-14 14:38

[quote]原帖由 [i]Mumba[/i] 於 2012-11-14 06:59 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347378621&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Based on what u said, any form of levies and taxes which hinder trade would be unconstitutional.  Good, I'll join your suit and raise you the normal stamp duties, car first registration tax, income ta ... [/quote]

I believe the OP is simply trying say there should a JR hearing to determine the question of constitutionality. He is trying to show that there is at least some question of constitutionality.

I believe you are trying to argue conclusively that the law is constitutional, which I believe is beyond his argument. Yes, I see your argument for constitutionality. Therefore, argue it in court, which is what the OP is trying to say.

kingme 2012-11-14 14:43

[quote]原帖由 [i]jimbo86[/i] 於 2012-11-4 05:43 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=346582637&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
I take u sided with the haves, but watch what u pray for someday it may actually come thru for u.
have a taste of your own medicine may not be all that palatable.

First they came for the communis ... [/quote]

Or he could be siding with the principle of rule of law, of separation of power, of limited government, and/or of having a constitution.

But hey, times are moving fast. 50 years is almost up. This law will be the least of your worries.

Mumba 2012-11-14 19:46

[quote]原帖由 [i]kingme[/i] 於 2012-11-14 02:38 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347403196&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]


I believe the OP is simply trying say there should a JR hearing to determine the question of constitutionality. He is trying to show that there is at least some question of constitutionality.

I ... [/quote]Thanks for moderating.  My point is it's going to open a floodgate for JR just for hearing the issue which should not have been raised in the first place knowing how illogical it is.

jimbo86 2012-11-15 01:04

The new policy is now giving hurdle to people invest money to promote development of HK.
The new tax for foreigners to invest is an opposite of "promote and co-ordinate" in our statutes.

this is at the expense at the local folks, therefore contrary to public policy.
so if u only work for the haves and only look at the benefit side then this is something to curb your income.
Or HK should lax food, drug regulations so HK can import more un-documented meat  etc so your merchant & clients can line up their wallet much faster.
mind as well point out the obvious flaw, as u have very short sighted vision, going for the short term gain in exchange for the long term pain.
Say if u successfully appeal these law to curb speculators, the price of HK property will reach the sky. Then everything is going to be very expensive. And that is something u pray for?

jimbo86 2012-11-15 01:11

I believe the OP is simply trying say there should a JR hearing to determine the question of constitutionality. He is trying to show that there is at least some question of constitutionality.

I do admire his un-bridled enthusiasm on this subject, but failing to see the big picture can be a bigger issue for one's direction in life.

Say the Dai yu / Senkaku islands were legally bought by the Japan govt now, so what right do we all have to dispute?
U folks are the bunch of smartest & brightest legal scholars, tomollo's Martin on the bar.

kingme 2012-11-15 13:21

[quote]原帖由 [i]Mumba[/i] 於 2012-11-14 07:46 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347424185&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Thanks for moderating.  My point is it's going to open a floodgate for JR just for hearing the issue which should not have been raised in the first place knowing how illogical it is. [/quote]

If you mean to say it is "illogical" because it puts into question existing laws, then your floodgate is just for protecting the status quo.

To be fair, you have an argument at your position, but you should be fair to the other position also. If you are attacking the opposite position as illogical because you disagree with it, this is precisely why we have the adversarial system and judicial review.

kingme 2012-11-15 13:25

[quote]原帖由 [i]jimbo86[/i] 於 2012-11-15 01:11 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347449629&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
I believe the OP is simply trying say there should a JR hearing to determine the question of constitutionality. He is trying to show that there is at least some question of constitutionality.

I do  ... [/quote]

That's great that your ambitions are beyond the law, but I believe this is a law forum and the topic is this thread is judicial review. I believe the question is if judicial review applies. The interest is not really in extralegal questions.

So I believe what you are talking about is best suited for something like the military and politics forum.

jimbo86 2012-11-15 16:32

the very reason to have any law is to protect or shape the society to come, without the society in mind we dont really need any law at all.
say if the market went south and the northern investors disappeared , this purchase tax will be redundant.
thats also reason law does need to be updated, such as a fine of 2,000 that would have been a princely sum 40-50 yrs ago, now people can pull multiples of that in one pocket.
some laws can be really behind times, and judge dont even bother to impose any sentence or fine to it.

jimbo86 2012-11-15 16:43

Say the Dai yu / Senkaku islands were legally bought by the Japan govt now, so what right do we all have to dispute?

there're international tribunal to deal with these squabbles too,  they all have their own arguments as why it should belong to them.
u folks may want to look up why the kowloon walled city became a holy cow or shielded from law,as uniform police usually dont go inside except the CIDs.
not with standing u possess great marks from your transcript, but if u can't really think and be connected to big picture, your'll only be assigned to the back room to do technical contract writings.

[[i] 本帖最後由 jimbo86 於 2012-11-15 04:47 PM 編輯 [/i]]

kingme 2012-11-15 17:41

Please Mr. Jimbo, first, please do not think you are explaining something so insightful that people here, especially law practitioners, have never thought about. On the contrary, I believe it has been contemplated more deeply than you could ever write on here.

However, the issue is relevancy, and of which what you said does not have. Law requires authority, and for which what you said has none. Therefore, it is irrelevant, meaning no use and worthless. Since the current law is like this, like I said previously, it is best that you take up and change the law to require no authority or perhaps requires the authority to be what you say. In both cases, the discussion is in either politics or military but not here. I believe that here, people want to discuss relating to the current accepted law.

And please, regarding your last statement, nothing about you fortune-telling/dreaming/threatening about what will happen to someone when they do not think your statements to be relevant will make your statements or even that fortune-telling statement relevant or that it is even worth any consideration. Because I can tell you, and please allow me to be harsh, that I don't think anyone here needs to believe it to be correct or really cares to need or seek your approval.

Thank you.

wittywrit 2012-11-15 18:36

The really really big and ginormous picture is that mankind will likely be extinguished with an outbreak of nuclear war, reducing all complicated constitutional law issues, shallow jurisprudence thoughts, or national boundary disputes to ashes. Without linking to this ginormous picture you will probably turn into ashes, whether chilling with clients in the conference room or typing in the backroom.

catmo1 2012-11-15 19:27

Taxation itself, of course, OK.  It's the purpose of the tax.  That's why lawyers always focus on intention.  If the purpose of the TAX is to increase government income, fine.  If, on the fact, the purpose of the tax was alleged to be discouraging people to invest as sounded.  The basic law said, it's not appropriate.  And, this time, the government expressly saying discouraging foreign investor for HK real estate.  Obviously, clearly, contradict to Art 118,119 of basic law.  Unless, the re-interpret the basic law in another way.

catmo1 2012-11-15 19:36

BTW, if just submit the JR to the court, it only costs 1,xxx HKD.  If the court refuses to hearing, fine.
If the court accepts, will the tax BSD be held up until the judement reached?

kingme 2012-11-15 23:09

[quote]原帖由 [i]catmo1[/i] 於 2012-11-15 07:27 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347502348&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Taxation itself, of course, OK.  It's the purpose of the tax.  That's why lawyers always focus on intention.  If the purpose of the TAX is to increase government income, fine.  If, on the fact, the pu ... [/quote]

You have to consider the type of scrutiny that the court will apply to government action. I am not familiar to JR in HK to discuss any further than acknowledge Wednesbury unreasonableness and proportionality at least for administrative reviews. I am not sure if intent is or should be one consideration element. This is a good point though that distinguishes would over the other "taxes."

jimbo86 2012-11-16 01:44

I see a person get very motivated with money, say if people looking for lady of the night and dont care what she looks, are u going to ask your Mommy to apply?  Or try to stop the law so your Mommy can turn a few tricks?
[quote]原帖由 [i]catmo1[/i] 於 2012-11-15 07:36 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347502865&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
BTW, if just submit the JR to the court, it only costs 1,xxx HKD.  If the court refuses to hearing, fine.
If the court accepts, will the tax BSD be held up until the judement reached? [/quote]

catmo1 2012-11-16 13:30

[quote]原帖由 [i]kingme[/i] 於 2012-11-15 11:09 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347519388&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
You have to consider the type of scrutiny that the court will apply to government action. I am not familiar to JR in HK to discuss any further than acknowledge Wednesbury unreasonableness and prop ... [/quote]

As far as I know, [url=http://en.wikipedia.org/wiki/Judicial_review]Judicial review[/url] in Hong Kong is conducted according to the Constitutional and Administrative Law .  This is a Constitutional review as it against the Basic Law, no need to discuss the "Wednesbury unreasonableness and proportionality" here as it is Administrative Law. Isn't it?

jimbo86 2012-11-16 14:54

the law will go the benefits of HK people,
if there is no limit on housing speculations, there'll be more people jumping off the roof and less people able to find any reasonable accomodation in either rental or ownership.
being lawyer u always work on one side, and try very hard to argue on your clients' behalf,  no more differently than  u try to find reason for the allege murderer to go free.

I do have to say cat mo is a pretty smart cookie, u'll rise to the occasion someday.

[[i] 本帖最後由 jimbo86 於 2012-11-16 03:35 PM 編輯 [/i]]

kingme 2012-11-17 00:36

[quote]原帖由 [i]catmo1[/i] 於 2012-11-16 01:30 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347555508&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]


As far as I know, Judicial review in Hong Kong is conducted according to the Constitutional and Administrative Law .  This is a Constitutional review as it against the Basic Law, no need to discus ... [/quote]

Then please enlighten me as to the standard of review for constitutional review.

Mumba 2012-11-17 02:37

[quote]原帖由 [i]kingme[/i] 於 2012-11-15 01:21 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347477293&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]


If you mean to say it is "illogical" because it puts into question existing laws, then your floodgate is just for protecting the status quo.

To be fair, you have an argument at your position, b ... [/quote]Illogical- definition "[font=Georgia, Palatino,]lacking sense or clear, sound reasoning"[/font]
[font=Georgia, Palatino,][size=3]I say it is illogical because it lacks sound reasoning not because I disagree with it.  As to why it lacks sound reasoning, I already pointed that out.  You're of course welcome to argue otherwise as to how logical that is.  All I see here is that ppl kept saying an argument no matter how bad it is deserves a hearing.  That's like saying no matter how guilty a person seems, he deserves a trial.  That's the criminal process not the civil one.  By all means file your application if you're willing to bear the legal costs but don't try to drag everyone in and say it is for public interest.[/size][/font]

[[i] 本帖最後由 Mumba 於 2012-11-17 02:52 AM 編輯 [/i]]

Mumba 2012-11-17 02:48

[quote]原帖由 [i]catmo1[/i] 於 2012-11-15 07:27 PM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347502348&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Taxation itself, of course, OK.  It's the purpose of the tax.  That's why lawyers always focus on intention.  If the purpose of the TAX is to increase government income, fine.  If, on the fact, the pu ... [/quote] Mind you. Duties on cigarettes, Car first registration tax etc are not to raise the Gov't income.  They are in fact as you said discourage ppl to buy cars, smoke etc.  That's why they raised the duties and the reg. tax.  Granted, I should not have included income tax as it is in a different category.

[[i] 本帖最後由 Mumba 於 2012-11-17 02:50 AM 編輯 [/i]]

kingme 2012-11-17 05:48

[quote]原帖由 [i]Mumba[/i] 於 2012-11-17 02:37 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347605481&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Illogical- definition "lacking sense or clear, sound reasoning"
I say it is illogical because it lacks sound reasoning not because I disagree with it.  As to why it lacks sound reasoning, I already p ... [/quote]

Well, all I can see is that you are giving your own argument as the only logical reasoning and then label all other arguments as illogical.

I can pull an easy one and say that your argument makes no sense because real property is unique. You can let me know how illogical I am, and then we'll have a trial. Ha!

All I can say is everybody loves to play the judge.

kingme 2012-11-17 05:49

[quote]原帖由 [i]Mumba[/i] 於 2012-11-17 02:48 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347605773&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Mind you. Duties on cigarettes, Car first registration tax etc are not to raise the Gov't income.  They are in fact as you said discourage ppl to buy cars, smoke etc.  That's why they raised the duti ... [/quote]

I always say you know you have a case at least at the filing and pleading level is when the other side has to keep explaining and revising their position.

catmo1 2012-11-17 10:03

[quote]原帖由 [i]Mumba[/i] 於 2012-11-17 02:48 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347605773&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]
Mind you. Duties on cigarettes, Car first registration tax etc are not to raise the Gov't income.  They are in fact as you said discourage ppl to buy cars, smoke etc.  That's why they raised the duti ... [/quote]

Article 119
The Government of the Hong Kong Special Administrative Region shall formulate appropriate policies to promote and co-ordinate the development of various trades such as manufacturing, commerce, tourism, real estate, transport, public utilities, services, agriculture and fisheries, and pay regard to the protection of the environment.

Please look at the provision Art 119 again, there is no requirement for the government to "promote and co-ordinate the development" cars and smoking industries.  But, "
real estate" is one listed.  you may argue that raising taxes for cars suspending "transportation"; however, Gov would say, it's developing other forms of "transportation".  Gov can allege raising SSD is to making sure slowly and healthy development of the real estate industry.  However, I am focus on BSD (SSD already serve the purpose of fighting with speculation), BSD is not for suppressing speculation it's creating hurdles for investments and not "promote and co-ordinate the development" the industry; it's actually, indeed, suspending both executions and prices of the real estate market!  (It's infringing the LAW)

kingme 2012-11-18 07:32

[quote]原帖由 [i]catmo1[/i] 於 2012-11-17 10:03 AM 發表 [url=http://www.discuss.com.hk/redirect.php?goto=findpost&pid=347613739&ptid=21080758][img]http://www.discuss.com.hk/images/common/back.gif[/img][/url]


Article 119
The Government of the Hong Kong Special Administrative Region shall formulate appropriate policies to promote and co-ordinate the development of various trades such as manufacturing,  ... [/quote]

The counter-argument then is "to promote and co-ordinate the development of various trades [u][b]such as[/b][/u]..." The list is not intended to be complete.

markpang1234 2012-11-18 20:48

i wonder if you have the locus standi to challenge the decision of the government to implement the said 辣招, i guess you might have difficulty in convincing the court of your standing to bring the action; without locus standi, even if you have $10xx in hand, you can't start the game.
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查看完整版本: Judicial review 政府在上周五出的辣招