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Published online by Cambridge University Press: 15 April 2019
The Chinese Temples Ordinance was promulgated by the British colonial government in Hong Kong to address the alarming growth of “pseudo-religious establishments” exploiting the ignorant masses of uneducated Chinese residents. This article critically examines the ordinance and the 2015 proposed amendments as a case study of the potential pitfalls in state responses to religious fraud. First, this article demonstrates the discriminatory nature of the ordinance, which perceived Chinese religions as particularly prone to fraudulent practices and deserving of specific regulatory controls that are not applicable to any other religions. Tellingly, this discriminatory approach—while unconstitutional and undesirable—continues to underpin the proposed reform. Second, this article delineates the conceptual distinctions within religious fraud and the interaction dynamics between religious donors and recipients and argues that the government-sanctioned registration scheme under the ordinance is neither justified nor appropriate to address religious fraud premised on promises of divine intervention in exchange for financial contributions.
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6 Turley, supra note 4, at 463–68. See Pihlström, Sami, Religion and Pseudo-Religion: An Elusive Boundary, 62 International Journal for Philosophy of Religion 3 (2007)CrossRefGoogle Scholar (discussing how the boundary between religion and pseudo-religion can be drawn only vis-à-vis the internal logic of religion and not by secular conceptual distinctions).
7 E.g., Senn, supra note 4, at 328–32; Turley, supra note 4, at 468–76.
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9 Mason, Caleb E., What Is Truth? Setting the Bounds of Justifiability in Religiously-Inflected Fact Disputes, 26 Journal of Law & Religion 91, 93–104 (2011)Google Scholar.
10 Chinese Temples Ordinance (1997) Cap. 153 (H.K.) [hereinafter 1997 Chinese Temples Ordinance].
11 The syncretic conceptualization and broad definition of Chinese religions is discussed in the sub-subsection below titled “Regulatory Burdens and Control.”
12 Infra, the sub-subsection “Regulatory Control.”
13 Infra, the subsection “Reform Proposal.”
14 Panditarantne, Dinusha, Basic Law, Hong Kong Bill of Rights and the ICCPR, in Law of the Hong Kong Constitution 521, 525 (Chan, Johannes & Lim, C.L. eds., 2d ed. 2015)Google Scholar; Norman Miners, The Government and Politics of Hong Kong 68–82 (5th ed. 1991).
15 Encyclopedia of Psychology and Religion 145 (Leeming, David A., Madden, Kathryn & Marlan, Stanton eds. 2010)CrossRefGoogle Scholar; Liu, Tik-sang, A Nameless but Active Religion: An Anthropologist's View of Local Religion in Hong Kong Macau, 174 China Quarterly 373, 389 (2003)CrossRefGoogle Scholar. Infra, sub-subsection “The Sliding Scale of Justified State Intervention.”
16 This insight is premised on the analogy of credence goods analysis in the economics literature: infra, subsection “Religion as Credence Goods: The Unintended Impact of Registration.”
17 For a concise and legal-oriented historical account of Hong Kong, see Johannes Chan, From Colony to Special Administrative Region, in Law of the Hong Kong Constitution, supra note 14, at 4.
18 Hong Kong Yearbook 2014 (Stuart M. I. Stoker ed.), http://www.yearbook.gov.hk/2014/en/index.html (last visited Mar. 2, 2016).
19 G.B. Endacott, Government and People in Hong Kong, 1841–1962: A Constitutional History 6–16 (1964).
20 Chan, supra note 17, at 9–12; Endacott, supra note 19, at 4–6.
21 Elizabeth Sinn, Power and Charity: The Early History of the Tung Wah Hospital, Hong Kong 29 & 209–12 (1989); Endacott, supra note 19, at 4–5.
22 It is worth noting that the 1920s was a period that witnessed increasing pressures for social change in Hong Kong. Factors contributing to these pressures included the rapid rise in population and increased political awareness in Britain on social rights; see Gavin Ure, Governors, Politics and the Colonial Office 28–42 (2012) (discussing attempts of social reform in the areas of employment of children, rent control, and mui tsai, a Chinese custom of daughter adoption that some critics equate with slavery).
23 1997 Chinese Temples Ordinance.
24 Fok Ho Chiu v. The Chinese Temples Committee [2003] H.K.C.U 1087 ¶ 17 (H.C.).
25 Id.
26 Official Reports of Proceedings (Legislative Council of Hong Kong), Apr. 26, 1928, at 33. See also Attorney Generals Chambers, Report on Ordinance No. 7 of 1928, at 1 (1928) (“This Ordinance was introduced on the strong recommendation and urgent request of the leaders of the Chinese community.”).
27 J.C. McDouall, The Secretariat for Chinese Affairs, in The Government and the People 138, 141–42 (1962) (“It was in the 1920s that responsible Chinese leaders became alarmed at the way in which the keepers of many Chinese temples in Hong Kong were misusing their position in a greedily commercial spirit, and were exploiting the people who came to worship or to seek guidance.”).
28 Ure, supra note 22, at 19–20 & 24–25. See Vincent Goossaert & David A Palmer, The Religious Question in Modern China 205 (2011) (arguing that the Ordinance was pushed for by local Chinese elites inspired by similar laws passed in mainland China by the KMT government in 1928). See also Qu Haiyuan, 宗教, 術數與社會變遷 (二): 基督宗教研究, 政教關係研究 [Religion, Fortune Telling and Social Change, Vol 2: Research on Christian Religion and Church-State Relationship] 214–24 (Laureate 2006) (outlining the legislative history and specifics of such laws in mainland China).
29 Official Reports of Proceedings (Legislative Council of Hong Kong), Nov. 5, 1980, at 158 (“Our predecessor must have taken heed of the exhortation in Deuteronomy not to follow abominable practices of divination, soothsayer or augurer, sorcerer, charmer or medium or wizard or necromancer.”). For a concise historical account of the criminalization of fortune telling in the United Kingdom, see Greenfield, Steve, Osborn, Guy & Roberts, Stephanie, From Beyond the Grave: the Legal Regulation of Mediumship, 8 International Journal of Law in Context 97, 101–02 (2012)CrossRefGoogle Scholar.
30 Carroll, John M., Chinese Collaboration in the Making of British Hong Kong, in Hong Kong's History: State and Society under Colonial Rule 13, 23 (Ngo, Tak-Wing ed., 1999)Google Scholar; Sinn, supra note 21, at 15–17. It is also worth noting that the British colonial government is apt at advancing its governance objectives through supporting pro-government local organization/community over their less co-operative rivals: Stephen W.K. Chiu & Ho-fung Hung, State Building and Rural Stability, in Hong Kong's History: State and Society under Colonial Rule, supra, at 74, 82–85 (discussing how in the 1950s the colonial government utilized the Societies’ Ordinance to declare illegal the existing representative organization for rural villages in the New Territories so as to shift the locus of power to the newly created pro-government representative organization).
31 For a discussion of the colonial constitutional history, including the largely symbolic but immaterial representation of the native Chinese population that made up 98 percent of the colony's population, see Endacott, supra note 19, at 89–96 & 126–62.
32 Official Reports of Proceedings (Legislative Council of Hong Kong), Apr. 26, 1928, at 41.
33 Id. at 32–33, 41.
34 1997 Chinese Temples Ordinance, § 2.
35 Jinghao Zhou, Chinese vs. Western Perspectives: Understanding Contemporary China 134–36 (2014); Sun, Anna Xiao Dong, The Fate of Confucianism as a Religion in Socialist China: Controversies and Paradoxes, in State, Market, and Religions in Chinese Societies 229, 232–33 & 236 (Yang, Fenggang & Tamney, Joseph B. eds., 2005)Google Scholar. See also Cohen, Alvin P. & Jaw, Yeh, A Chinese Temple Keeper Talks about Chinese Folk Religion, 36 Asian Folklore Studies 1, 5–16 (1977)CrossRefGoogle Scholar (a practitioner's exposition of the doctrines and practices of Chinese folk religions).
36 1997 Chinese Temples Ordinance, § 2.
37 Id.
38 Secretary for Justice v. To Kan Chi [2000] H.K.C.U. 1030, at 6–7 (C.F.A.) (discussing the various well-recognized types of temple ownership).
39 Id. at 16.
40 1997 Chinese Temples Ordinance, § 5.
41 Id.
42 To Kan Chi [2000] H.K.C.U., at 17–21. The court did also hold that where the Chinese temples are owned by a private entity, such as a t'ong, the t'ong retains the right to withdraw the assets from the purposes of Chinese temples in accordance with the internal procedures relating to t'ong management and thus remove those assets from the regulatory control under the Ordinance. While seemingly a generous interpretation in favor of religious autonomy, this interpretation is compelled by the need to stave off constitutional challenge under Article 105 Basic Law property right protection (the right of withdrawal is instrumental in finding that the Ordinance is not confiscatory), and this right of withdrawal is subject to contention by the Chinese Temples Committee. Id. at 18–21.
43 Official Reports of Proceedings (Legislative Council of Hong Kong), Nov. 5, 1980, at 158. The relevant provision has been interpreted by the Hong Kong court in 1980 as essentially a strict liability criminal offenses—the mere act of professing to tell fortunes will suffice without any finding of intent to deceive. Mak Yuk-Kiu v. Tin Shing Auto Radio CTR Ltd [1981] H.K.C.U. 13 (H.C.). The issue arose in the context of a car accident tort claim, where the fact that the victim of a car accident is a fortune-teller (and hence whose income is potentially illegal) would bar recovery from dependents. The court found that the income was illegal, and would bar a claim of loss earnings by the victim, but not a loss of maintenance out of earnings by dependents.
44 Official Reports of Proceedings (Legislative Council of Hong Kong), Mar. 16, 1933, at 22.
45 1997 Chinese Temples Ordinance, § 4.
46 Heller, Gillis & Wong, Daphne S.W., The History of Exclusionary Zoning Laws in Hong Kong, 40 Hong Kong Law Journal 609, 611–14 (2010)Google Scholar.
47 1997 Chinese Temples Ordinance §14.
48 Andrew Bruce, Criminal Procedure: Trial on Indictment ¶¶ 652–750 (2016) (Interestingly, the author failed to mention the Ordinance when discussing the statutes that authorize search and seizure without a warrant.).
49 Chinese Temples Ordinance (1928) Cap. 153, § 15 (H.K.) [hereinafter 1928 Chinese Temples Ordinance].
50 For a discussion of the historical evolution of the Hong Kong currency regime, in particular the sociopolitical circumstances surrounding the instituting of Hong Kong currency, see Tony Latter, Hong Kong's Money: The History, Logic and Operation of the Currency Peg 33–41 (2007).
51 1997 Chinese Temples Ordinance, § 15.
52 Mass Transit Railway By-Laws, Schedule 2 (2000) Cap. 556B (H.K.).
53 1997 Chinese Temples Ordinance, § 7; 1928 Chinese Temples Ordinance, § 7.
54 1997 Chinese Temples Ordinance, § 7(6); 1928 Chinese Temples Ordinance, § 7(2).
55 1997 Chinese Temples Ordinance, § 7(1).
56 Id. § 7(2).
57 Id. § 7(1).
58 E.g., Leung, Thomas In-sing, Crises and Transformation: The Implications of 1997 for Christian Organizations in Hong Kong, in Politics and Society in Hong Kong towards 1997, at 62, 75–78 (Burton, Charles ed., 1992)Google Scholar.
59 Cf. McDouall, supra note 27, at 141–42 (in describing the works of the Secretariat for Chinese Affairs in a radio broadcast to the public, the then Secretariat for Chinese Affairs took time to discussing the origin, the legal controls and the beneficial effects of the Ordinance). See also Illegal Temple: Blind Man Convicted and Bound Over, South China Morning Post, June 25, 1934, at 3 (A newspaper report about the conviction of an individual under the Ordinance for operating an altar that is not registered. The case was brought because of “a complaint by a gentleman of the disturbance created by the beating of drums and cymbals and the coming and going of worshippers to this temple.”).
60 Official Reports of Proceedings (Legislative Council of Hong Kong), May. 28, 1997, at 47–48.
61 Official Reports of Proceedings (Legislative Council of Hong Kong), Jan. 18, 2012, at 4762–63. See also Bosco, Joseph, Chinese Popular Religion and Hong Kong Identity, 14 Asian Anthropology 8, 13–14 (2015)CrossRefGoogle Scholar (noting how a variety of spirit writing groups and private temples and halls are not publically registered).
62 Secretary for Justice v. To Kan Chi [2000] H.K.C.U. 1030, at 2, 17 (C.F.A.).
63 To Kan Chi v. Pui Man Yau, CACV 32/1999 (C.A.).
64 Home Affairs Bureau, Review on the Chinese Temples Ordinance Public Consultation Document, Mar. 2015, at 2 of Annex I.
65 Official Reports of Proceedings (Legislative Council of Hong Kong), Dec. 8, 2010, at 3406.
66 Official Reports of Proceedings (Legislative Council of Hong Kong), Jan. 18, 2012, at 4762–4763; Official Reports of Proceedings (Legislative Council of Hong Kong), Dec. 8, 2010, at 3406.
67 Official Reports of Proceedings (Legislative Council of Hong Kong), Nov. 27, 2013, at 3334.
68 Official Reports of Proceedings (Legislative Council of Hong Kong), Nov. 27, 2013, at 3333–3334; Official Reports of Proceedings (Legislative Council of Hong Kong), Jan. 18, 2012, at 4761–4763; Official Reports of Proceedings (Legislative Council of Hong Kong), Apr. 7, 2011, at 8913; Official Reports of Proceedings (Legislative Council of Hong Kong), Dec. 8, 2010, at 3405–3409.
69 Home Affairs Bureau, supra note 64, at 1.
70 Id. at 3.
71 Id. at 2–3.
72 Id. at 4–5 (The information to be provided and regularly updated for the purpose of registration include “purpose of establishing the temple, the god(s) to be worshipped, major events involved, its owner(s) and administrator(s), its assets donated by the public and the uses of such donations.”).
73 Id. at 6. See Lung, Wong Yan, The Secretary for Justice as the Protector of the Public Interest: Continuity and Development, 37 Hong Kong Law Journal 319, 333–34 (2007)Google Scholar (discussing the circumstances where the Secretary for Justice may intervene in litigations on the account of public interest).
74 Home Affairs Bureau, Public Affairs Forum: Summary of Comments on the Review on the Chinese Temples Ordinance, June 2015, PAF Summary 6/2015.
75 Xianggang Jiben Fa [Basic Law], art. 105 (H.K.) (“The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.”).
76 Id. art. 141(2) (“Religious organizations shall, in accordance with law, enjoy the rights to acquire, use, dispose of and inherit property and the right to receive financial assistance. Their previous property rights and interests shall be maintained and protected.”).
77 Secretary for Justice v. To Kan Chi [2000] H.K.C.U. 1030 (C.F.A).
78 Tang Kai-chung v. Tang Chik-shang [1970] H.K.L.R. 276, at 279–80 (“Speaking generally, a Tso may be shortly described as an ancient Chinese institution of ancestral land-holding whereby land derived from a common ancestor is enjoyed by his male descendants for the time being living for their lifetimes and so from generation to generation indefinitely.”).
79 To Kan Chi, 2000 H.K.C.U. at 23–24 (“[W]e would stay the order for payment out of court of the Funds until 30 days after service of a copy of the Court's judgement in the present appeal by the Tso and the Clan's solicitors on the Chinese Temples Committee.”).
80 Id. at 19. For a recent invocation and application of the principle in the U.K. Supreme Court, see In re Peacock [2012] 1 W.L.R. 550, 560 (Supreme Ct.).
81 To Kan Chi, 2000 H.K.C.U. at 19–20.
82 Id. at 20–21.
83 Id. at 21.
84 Fine Tower Associates Ltd v. Town Planning Board [2008] 1 H.K.L.R.D. 553 (C.A.). Application for leave for appeal to the Court of Final Appeal was rejected in Fine Tower Associates Ltd v. Town Planning Board [2008] H.K.E.C. 616 (C.A.). For a discussion of the case and the relevant principles, see Michael Wilkinson, Land, in Law of the Hong Kong Constitution, supra note 14, at 441, 478–81.
85 Sporrong and Lönnroth v. Sweden, App. Nos. 7151/75, 7152/75, 5 Eur. H.R. Rep. 35 (1983).
86 Grape Bay Ltd v. A-G of Bermuda [2000] 1 W.L.R. 574 (PC).
87 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
88 Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).
89 Fine Tower Associates Ltd [2008] 1 H.K.L.R.D. at 560–64 (C.A.). For academic discussions on the normative aspects and subsequent applications of regulatory takings in Hong Kong, see Oliver Jones, Right to Property, in Law of the Hong Kong Constitution, supra note 14, at 1085, 1102–05; Chen, Jianlin, Ho Tung Gardens Saga and the Basis of Compensation under the Antiquities and Monuments Ordinance: A Comparative and Incentive Case Study on Regulatory Takings, 43 Hong Kong Law Journal 835, 847–48 (2013)Google Scholar.
90 Supra, the sub-subsection titled “Regulatory Control.”
91 To Kan Chi v. Pui Man Yau, CACV 32/1999 (C.A.); To Kan Chi v. Pui Man Yau, HCMP 2084/94 (C.F.I.).
92 The decision of the court of first instance was delivered in November 1998, and the Court of Appeal heard the appeal in December 1999 and rendered the decision in February 2000. The Article 105 challenge was only raised in the Court of Final Appeal.
93 See infra notes 116–19 regarding the Hong Kong Bill of Rights Ordinance that was enacted in 1991.
94 Leung Kwok Hung v. Hong Kong [2005] 8 H.K.C.F.A.R. 229, ¶¶ 30–38; Johannes Chan & C.L. Lim, Interpreting Constitutional Rights and Permissible Restrictions, in Law of the Hong Kong Constitution, supra note 14, at 565, 592–602.
95 Robin C.A. White & Clare Overy, The European Convention on Human Rights 312–15, 325–32 & 478 (5th ed. 2010); Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects 201–13 (2006). For a critical discussion of the legal theory imbedded in these two concepts, see George Letsas, A Theory of Interpretation of the European Convention on Human Rights 17–36 & 99–119 (2007).
96 Chan & Lim, supra note 94, at 592–602. See Carolyn Evans, Freedom of Religion under the European Convention on Human Rights 142–49 (2001) (discussing the relevant jurisprudence of the European Court of Human Rights).
97 Supra, the subsection “Historical Background.”
98 Evans, supra note 96, at 149–55 & 159–60.
99 Home Affairs Bureau, supra note 64, at 3.
100 See generally ch. 335 (Religion), Halsbury's Laws of Hong Kong (LexisNexis).
101 Supra, the subsection “Historical Background.”
102 Home Affairs Bureau, supra note 64, at 3.
103 Id. at 3. See Wang, B. et al. , Characteristics of Emissions of Air Pollutants from Burning of Incense in Temples, Hong Kong, 377 Science of the Total Environment 52, 59 (2007)CrossRefGoogle ScholarPubMed (discussing how air pollution in Chinese temples, arising from the burning of incense, can exceed safety guidelines to the health detriment of visitors and residents of nearby areas).
104 Home Affairs Bureau, supra note 64, at 4–5.
105 Hong Kong v. Xu Maiqing, DCCC 795/2005, ¶¶ 3–7, 9 (D.C. 2005) (Legal Reference System) (H.K.).
106 Theft Ordinance (2017) Cap. 210. E.g., Hong Kong v. Zhu Huiying, DCCC 399/2014 (D.C. 2014) (Legal Reference System) (H.K.).
107 Crimes Ordinance (1997) Cap. 200. E.g., Hong Kong v. Luo Xiuting, DCCC 801/2014 (D.C. 2014) (Legal Reference System) (H.K.).
108 The starting point for sentencing is two to three years of imprisonment for each charge.
109 Official Reports of Proceedings (Legislative Council of Hong Kong), Nov. 27, 2013, at 3333–36.
110 E.g., Solicitor Seeks Court Order to Oust Disgraced Nun from Ting Wai, EJ Insight, Aug. 8, 2016.
111 Infra, sub-subsection “Secular Facts versus Religious Truth.”
112 Private Columbaria Ordinance (2017) Cap. 630.
113 Law Reform Commission of Hong Kong, Report: Charity, at 19–21 (2013). This is especially so if the charities are not one of the few statutory charities established under a specific Ordinance.
114 Id. at 227–33.
115 In light of the colonial legacy, one might argue that the current image of Chinese religions is unduly tainted by the vicious cycle of biased enforcement reinforcing negative perception.
116 Xianggang Jiben Fa [Basic Law] art. 25 (“All Hong Kong residents shall be equal before the law.”).
117 Hong Kong Bill of Rights Ordinance (1997) Cap. 383; Panditaratne, supra note 14, at 525–32; Simon Young, Restricting Basic Law Rights in Hong Kong, 34 Hong Kong Law Journal 109, 115–17 (2004). See also Xianggang Jiben Fa art. 39 (H.K.) (“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”).
118 For a concise overview and analysis of this issue, see Panditaratne, supra note 14; Peter Wesley-Smith, Constitutional and Administrative Law in Hong Kong 319–27 (2nd ed. 1994).
119 Panditaratne, supra note 14, at 538–59; Young, supra note 117, at 115–17.
120 Hong Kong Bill of Rights Ordinance, art. 22 (“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”).
121 Milligan, Joy, Religion and Race: On Duality and Entrenchment, 87 New York University Law Review 393, 436–40 (2012)Google Scholar; Julia K. Stronks, Law, Religion, and Public Policy: A Commentary on First Amendment Jurisprudence 32 (2002); Evans, supra note 96, at 168–99. See Charlow, Robin, The Elusive Meaning of Religious Equality, 83 Washington University Law Quarterly 1529, 1531–41 (2005)Google Scholar (discussing the multidimensional nature of religious equality).
122 Vincent D. Rougeau, Christians in the American Empire: Faith and Citizenship in the New World Order 101–09 (2008); Schanda, Balázs, Freedom of Religion and Minority Religions in Hungary, in Regulating Religion: Case Studies from Around the Globe 279, 285, 292–93 (Richardson, James T. ed., 2004)Google Scholar. See Ahdar, Rex & Leigh, Ian, Is Establishment Consistent with Religious Freedom?, 32 McGill Law Journal 635 (2004)Google Scholar (arguing that religious freedom does not necessarily require religious equality and that mild establishment is compatible with religious freedom).
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124 Secretary for Justice v. Yau Yuk Lung [2007] 3 H.K.C. 545, 554–55 (C.F.A.). See Clare Overy & Robin White, The European Convention on Human Rights 427–29 (2006); Conkle, Daniel O., Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty, 32 Cardozo Law Review 1755, 1755–56 (2011)Google Scholar (discussing the interesting point that while the U.S. Supreme Court and American legal scholars opined similar conclusion, the perceived unconstitutionality stemmed from the Free Exercise clause rather than Equal Protection clause); Weaver, Russell L., The Free Exercise Clause of the United States Constitution, in Law and Religion: God, the State and the Common Law 60, 71–73 (Radan, Peter et al. eds., 2005)Google Scholar; Employment Division v. Smith, 494 U.S. 872 (1990). See also Gellman, Susan & Looper-Friedman, Susan, Thou Shalt Use the Equal Protection for Religion Cases (Not Just the Establishment Clause), 10 University of Pennsylvania Journal of Constitutional Law 665, 666–68 & 738–41 (2008)Google Scholar (arguing for greater use of the Equal Protection clause and observing that prevailing lack of this otherwise obvious avenue might simply be due to path dependent neglect).
125 Secretary for Home Affairs, Supplementary Information on the Review on the Chinese Temples Ordinance, May 4, 2015, LegCo Paper No. CB(2)1346/14–15.
126 The political participants in Hong Kong can be largely divided into two camps: the “pro-establishment” camp, which favors a closer relationship in terms of China's role in Hong Kong economic and social life; and the “pan-democrats” camp, which advocates greater autonomy for Hong Kong, including a more liberal democratic institution that is distinct from the Chinese government's conceptualization of good governance. See Bill K.P. Chou, Election without Fair Representation: Hong Kong's Legislative Council and Its Implications for Non-liberal Regimes, in Parliaments in Asia: Institution Building and Political Development 228, 229–30 (Zheng Yongnian, Lye Liang Fook & Wilhelm Hofmeister eds., 2014); Cheng, Joseph Y.S., Democratization in Hong Kong: A Theoretical Exception, in Democracy in Eastern Asia: Issues, Problems and Challenges in a Region of Diversity 224, 229–30 (Fung, Edmund S.K. & Drakeley, Steve eds., 2014)Google Scholar.
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129 Id. at 10.
130 Leung, supra note 58, at 75–78 (noting the religious policy in China and observing earlier at 63 that “Hong Kong people enjoy religious freedom … Since the government puts few limitations upon religious communities”). See also Michael Ng, When Silence Speaks: Press Censorship and Rule of Law in British Hong Kong, 1850s–1940s, Law & Literature, 14–26 (2017) (a historical archival survey that reveals the colonial government's “active and pre-emptive press censorship of Chinese newspapers” in Hong Kong and “demythologizes the much-congratulated rule of law in the former colony.”); Chan, Ronnie C., What You Are Not Supposed to Know about Hong Kong, in China's Hong Kong Transformed: Retrospect and Prospects Beyond the First Decade 97, 100–03 (Chan, Ming K. ed., 2008)Google Scholar (discussing the various “half-truth” regarding the perceived level playing field and various freedom—market, political, press, and academic—under British colonial rule that are in reality much more circumscribed).
131 Xiong, Ping, Freedom of Religion in China under the Current Legal Framework and Foreign Religious Bodies, 2013 Brigham Young University Law Review 605, 610–16 (2013)Google Scholar; Klein, Richard, An Analysis of China's Human Rights Policies in Tibet: China's Complicance with the Mandates of International Law Regarding Civil and Political Rights, 18 ILSA Journal of International & Comparative Law 115 (2011)Google Scholar. See also Jianlin Chen, The Law and Religious Market Theory: China, Taiwan and Hong Kong 157–60 (2017) (discussing from the perspective of the law and religious market theory the deficiency of the actual Hong Kong approach to law and religion).
132 Petrica-Mihail Marcoci & Gheorghe Bogdan Birzu, Several Considerations on Industrial Fraud, Annals Constantin Brâncuşi University Târgu Jiu Juridical Science Series 147, 147–48 (2011); Calkins, Mary M., My Reputation Always Had More Fun Than Me: The Failure of eBay's Feedback Model to Effectively Prevent Online Auction Fraud, 7 Richmond Journal of Law & Technology 33, 33–34 (2001)Google Scholar.
133 Theft Ordinance (1997) Cap. 210, §§ 17–19. See Fraud Act 2006, c. 35 (2006) (U.K.).
134 Damages for fraudulent misrepresentation include all actual damage directly flowing from the fraudulent inducement without much limitation as to remoteness or foreseeability, unlike in the case for negligent misrepresentation that is so limited: Smith New Court Sec. v. Scrimgeour Vickers [1997] AC 254, 267, 269 (HL). There may also be statutory provisions for exemplary damages for a defendant successfully resisting fraudulent litigation claims: Fulbrook, Julian, Tasneem v Morley: Personal injury—Road Traffic Accidents—Damages, 2014(2) Journal of Personal Injury Law C91 (2014)Google Scholar.
135 An example is the Bills of Sale Ordinance (1997) Cap. 20, which establishes a registry and compels registration of transfers of rights/interests in personal chattel that fall short of a complete transfer. For a critical discussion as to its utility in combating fraud in the modern era, see McBain, Graham S., Repealing the Bill of Sale Acts, 2011 Journal of Business Law 475 (2011)Google Scholar.
136 The institution of a public register of marriage and the requirement for a period of public notice prior to marriage. Marriage Ordinance (1997) Cap. 181, §§ 6–10, 23–26 (instituting a public register of marriage and requiring a period of public notice prior to marriage).
137 Supra, the subsection “Reform Proposal.”
138 Supra, the subsection “Historical Background.”
139 See Frye, Brian L., Solving Charity Failures, 93 Oregon Law Review 155, 181–88 (2014)Google Scholar (discussing the donation model versus the reward model of crowdfunding for charitable projects).
140 Anderson, Gary, The Challenge of Charity, in Charity: The Place of the Poor in the Biblical Tradition 1, 4–6 (2013)Google Scholar; Leiby, James, Charity Organization Reconsidered, 58 Social Service Review 523, 530 (1984)CrossRefGoogle Scholar.
141 For a good discussion as to egoistic, altruistic, and mixed motivations behind charitable giving, see Arnold Dashefsky & Bernard Lazerwitz, Charitable Choices: Philanthropic Decisions of Donors in the American Jewish Community 11–16 (2009); Bendapudi, Neeli, Singh, Surendra N. & Bendapudi, Venkat, Enhancing Helping Behavior: An Integrative Framework for Promotion Planning, 60 Journal of Marketing 33, 40–43 (1996)CrossRefGoogle Scholar. See also Glazer, Amihai & Konrad, Kai A., A Signaling Explanation for Charity, 86 American Economic Review 1019, 1019–21 (1996)Google Scholar (discussing how—in light of the data indicating the paucity of anonymous donations—charitable donations are often motivated by donor's desire to signal status).
142 Johnson, Khrista, The Charitable Deduction Games: Catching Change, 31 Georgia State University Law Review 289, 292–93 (2015)Google Scholar.
143 Peter Luxton, The Law of Charities 801 (2001).
144 Id.
145 Turley, supra note 4, at 468. See also Langenderfer & Shimp, supra note 2, at 768 (“When the amount requested by a swindler is small, scam victims may not pay attention to the details of the proposed transaction because they may not be especially interested; their motivation is limited, so diligent thought is not worth the effort.”).
146 Mead, Joseph, Confidence in the Nonprofit Sector through Sarbanes-Oxley-Style Reforms, 106 Michigan Law Review 881, 884–86 (2008)Google Scholar; Demianczuk, Yolanda, Charity Regulation in the Russian Federation, 35 Columbia Journal of Transnational Law 477, 482–84 (1997)Google Scholar.
147 Cf. Bendapudi, Singh & Bendapudi, supra note 149, at 45–46 (discussing the need for sophisticated and well-designed promotional strategies to ensure more effective solicitation of charitable donations).
148 See Barborak, supra note 4, at 602–03 (criticizing the exemption of religious organizations from deceptive sale statutes in the United States).
149 Mark Herbert, Religious Issues in Litigation, 2015 Private Client Business 137, 142–43 (2015); Mason, supra note 9, at 93–104; Senn, supra note 4, at 329; Turley, supra note 4, at 463–65.
150 See Bate, Roger, Fatal Pharmaceuticals: The Indian Counterfeit Drug Market, 11 Georgetown Journal of International Affairs 125, 126–27 (2011)Google Scholar (discussing how the prevalence of counterfeit and substandard drugs in India has not dampened the consumption due to strong demand by low-income consumers who are compelled to take the risk).
151 Senn, supra note 4, at 328.
152 G.H. Treitel, The Law of Contract 331–32 (11th ed. 2003); Skapinker, Diane & Carter, J.W., Breach of Contract and Misleading or Deceptive Conduct in Australia, 113 Law Quarterly Review 294, 305–06 (1997)Google Scholar.
153 J.E. Penner, The Law of Trusts 130–32 (7th ed. 2010); Luxton, supra note 143, at 386–87 & 798–801.
154 Peter Smith, The Problem of the Non-Justiciability of Religious Defamations, 18 Ecclesiastical Law Journal 36, 37–38 & 51–52 (2016); Mason, supra note 9, at 510.
155 Koppelman, supra note 5, at 1835; M. D. Litonjua, Religious Zealotry and Political Violence in Christianity and Islam, 35 International Review of Modern Sociology 307, 308–11 (2009); Shiffrin, Steven H., The Pluralistic Foundations of the Religion Clauses, 90 Cornell Law Review 9, 44–45 (2004)Google Scholar.
156 Koppelman, Andrew, And I Don't Care What It Is: Religious Neutrality in American Law, 39 Pepperdine Law Review 1115, 1120 (2013)Google Scholar; Research Division, Overview of the Court's Case-law on Freedom of Religion 19 (Council of Europe/European Courts of Human Rights 2013); Marshall, William, What Is the Matter with Equality? An Assessment of the Equal Treatment of Religion and Nonreligion in First Amendment Jurisprudence, 75 Indiana Law Journal 193, 208 (2000)Google Scholar.
157 Cranmer, Frank, Case Comment: Thomas Phillips v Thomas Monson, 16 Ecclesiastical Law Journal 393, 393 (2014)Google Scholar (noting how a private prosecution against a Mormon church leader for soliciting religious contributions “while at the same time knowingly promoting theological doctrines which ‘might be untrue or misleading’” was summarily dismissed for, among other things, “issues of the truth or falsity of religious doctrines were non-justiciable”). For a discussion of the doctrine of nonjusticiability of religious issues in the English courts, see Smith, supra note 154, at 40–42.
158 United States v. Ballard, 322 U.S. 78, 84–87 (1944).
159 Hong Kong v. Au Yeung Kwok Fu [2012] H.K.C.U. 223, ¶¶ 32–33 (C.A.). For cases where prosecution alleged that the sexual intercourse was procured by false religious claims, but where the defendants denied making the religious claims at all, see Hong Kong v. Yeung Shing Sang [2014] H.K.C.U. 1243 (C.A.); Hong Kong v. Chow Kam Wah [2012] H.K.C.U. 2447 (C.A.). C.f. Chen, Jianlin, Lying about God (and Love?) to Get Laid: The Case Study of Criminalizing Sex under Religious False Pretense in Hong Kong, 51 Cornell International Law Journal 553, 566–78 (2018)Google Scholar (critically discussing how Hong Kong courts evaluated the veracity of the religious claims in seven religious fraudulent sex cases over a ten year period). See also Chen, Jianlin, Joyous Buddha, Holy Father, and Dragon God Desiring Sex: A Case Study of Rape by Religious Fraud in Taiwan, 13 National Taiwan University Law Review 183, 201–11 (2018)Google Scholar (discussing similar religious fraudulent sex prosecutions in Taiwan).
160 Stronks, Law, supra note 121, at 109; Horwitz, supra note 8, at 143–50; Senn, supra note 4, at 336–41.
161 Greenfield, Osborn & Roberts, supra note 29, at 103–04.
162 Senn, supra note 4, at 329–31.
163 Hong Kong v. Au Yeung Kwok Fu, DCCC 569/2009, ¶¶ 11–13 (D.C.).
164 See Ballard, 322 U.S. at 94–95 (1944) (Jackson, J., dissenting) (“The chief wrong which false prophets do to their following is not financial … . the real harm is on the mental and spiritual plane … When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get.”).
165 Senn, supra note 4, at 331–32.
166 Pham, Trang Huyen My & Nasir, Muhammad Ali, Conspicuous Consumption, Luxury Products and Counterfeit Market in the UK, 13 European Journal of Applied Economics 72, 73–76 (2016)Google Scholar; Staake, Thorsten, Thiesse, Frédéric & Fleisch, Elgar, Business Strategies in the Counterfeit Market, 65 Journal of Business Research 658, 658 (2012)CrossRefGoogle Scholar; Bate, supra note 150, at 126–30.
167 For discussions about proselytization and corresponding resistance/reactions, see Berkwitz, Stephen C., Religious Conflict and the Politics of Conversion in Sri Lanka, in Proselytization Revisited: Rights Talk, Free Markets and Culture Wars 199, 203–04 (Hackett, Rosalind I.J. ed., 2008)Google Scholar. See also Ballard, 322 U.S. at 94 (1944) (Jackson, J., dissenting) (“Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The [defendants] are not alone in catering to it with a pretty dubious product.”).
168 The emphasis is made given how state intervention could arguably include granting civil remedies to private litigants, whether in lieu of or in addition to public enforcement and regulatory supervision. While the involvement of judiciary (or other adjudicating tribunal) means that there is some overlap in the legal and normative considerations of these forms of state intervention (such as the evidential and constitutional complication of evaluating religious truth), there are sufficient key distinctions—both practical (such as the amount of state resources) and constitutional (e.g., more leeway afforded to the exercise of power by private entities)—to exclude it from the scope of this article.
169 An example is the Fraudulent Mediums Act 1951 in the United Kingdom. This legislation aimed to criminalize fraudulent practices of spiritualist mediumship. Falsehood is defined based on subjective intent, and an element of reward is required. The legislation has been criticized as ineffective and unintendedly “amounts to professional recognition” of the spiritual mediums. The legislation was replaced in 2008 during harmonization of domestic consumer protection laws with EU laws: see Greenfield, Osborn & Roberts, supra note 29, at 103–06 & 112–13.
170 Sarah Claerhout & Jakob De Roover, Conversion of the World: Proselytization in India and the Universalization of Christianity, in Proselytization Revisited: Rights Talk, Free Markets and Culture Wars, supra note 167, at 53, 65; Tracy, David, The Christian Understanding of Salvation-Liberation, 7 Buddhist-Christian Studies 129, 130–32 (1987)CrossRefGoogle Scholar.
171 See generally S.A. Nigosian, World Religions: A Historical Approach 414–19 (3d ed. 2000) (discussing how the different religions differ in their conceptions of religious path and goals).
172 Encyclopedia of Psychology and Religion, supra note 15, at 145; Liu, supra note 15, at 389.
173 Zheng Zhiming, 臺灣宗教組織與行政 [Taiwan Religious Organization and Administration] 330 (2010); Dong Fangfan, 臺灣的宗教大觀 [The Religions in Taiwan] 70–72 (Avanguard 2008). See Lu, Yunfeng, Johnson, Byron & Stark, Rodney, Deregulation and the Religious Market in Taiwan: A Research Note, 49 Sociological Quarterly 139, 143 (2008)CrossRefGoogle Scholar (discussing now the perceived efficacy in granting the wishes of worshippers is an important factor in the success of Chinese folk temples in Taiwan); Chau, Adam Yuet, The Politics of Legitimation and the Revival of Popular Religion in Shaanbei, North-Central China, 31 Modern China 236, 252–253 (2005)CrossRefGoogle Scholar (discussing the activities of a successful Chinese temple that include divine blessing and magical curative spring water).
174 Law Reform Commission of Hong Kong, supra note 113, at 19–20.
175 Robert Baldwin, Martin Cave & Martin Lodge, Understanding Regulation: Theory, Strategy, and Practice 228–29 & 277–80 (2d ed. 2012); Coglianese, Cary, Engaging Business in the Regulation of Nanotechnology, in Governing Uncertainty: Environmental Regulation in the Age of Nanotechnology 46, 55–56 (Bosso, Christopher J. ed., 2010)Google Scholar.
176 Roe, Brian & Sheldon, Ian, Credence Good Labeling: The Efficiency and Distributional Implications of Several Policy Approaches, 89 American Journal of Agricultural Economics 1020, 1020–21 (2007)Google Scholar; Leland, Hayne E., Quacks, Lemons, and Licensing: A Theory of Minimum Quality Standards, 87 Journal of Political Economy 1328, 1329 (1979)CrossRefGoogle Scholar.
177 E.g., Hall, Joshua, Higher-education Accreditation: Market Regulation or Government Regulation?, 17 Independent Review: Journal of Political Economy 233, 234 (2012)Google Scholar; Roe & Sheldon, supra note 176, at 1020–21.
178 Uwe Dulleck, Rudolf Kerschbamer & Matthias Sutter, The Economics of Credence Goods: An Experiment on the Role of Liability, Verifiability, Reputation, and Competition, 101 American Economic Review 526, 526–27 (2011); Uwe Dulleck & Rudolf Kerschbamer, On Doctors, Mechanics, and Computer Specialists: The Economics of Credence Goods, 44 Journal of Economic Literature 5, 6–9 (2006); Emons, Winand, Credence Goods and Fraudulent Experts, 28 Rand Journal of Economics 107, 107 (1997)CrossRefGoogle Scholar.
179 Chaserant, Camille & Harnay, Sophie, The Regulation of Quality in the Market for Legal Services: Taking the Heterogeneity of Legal Services Seriously, 10 European Journal of Comparative Economics 267, 284–85 (2013)Google Scholar; Roe & Sheldon, supra note 176, at 1021; Leland, supra note 176, at 1329 & 1342.
180 Witham, supra note 5, at 61–62; Anthony Gill, The Political Origins of Religious Liberty 41–42 (2008).
181 Witham, supra note 5, at 61–65; Rodney Start & Roger Finke, Acts of Faith: Explaining the Human Side of Religion 106–13 (2000).
182 James W. Tong, Revenge of the Forbidden City: The Suppression of the Falungong in China, 1999–2005, at 205 (2009) (discussing the vigorous enforcement of the criminalization of the Falungong sect by the Chinese government that has largely eliminated its public presence in China without eradicating the continued practice of its teachings in private or in secret); Cheung, Anne S.Y., In Search of a Theory of Cult and Freedom of Religion in China: The Case of Falun Gong, 13 Pacific Rim Law & Policy Journal 1, 21–26 (2004)Google Scholar.
183 To use another example from China, only state-sanctioned religious organizations are considered legal. Independent Protestant “churches” that refused to join the official Protestant church organization are thus technically in a state of legal ambiguity that involves general tolerance (but no official reorganization) punctuated with occasional and limited crackdowns. However, this has not impeded the continued growth of such “churches.” Given that sociologists have observed that the differences in theology and doctrines between official and underground churches are not particularly significant, one possible explanation is that credibility gained from refusing to submit to state control outweighs the resulting discriminatory inconvenience: Fenggang Yang, The Red, Black, and Gray Markets of Religion in China, Sociological Quarterly 93, 97–98 (2006); Wenger, Jacqueline E., Official vs. Underground Protestant Churhes in China: Challenges for Reconciliation and Social Influence, 46 Review of Religious Research 169, 170–71 (2004)CrossRefGoogle Scholar.
184 Home Affairs Bureau, supra note 64, at 4–5.
185 Law Reform Commission of Hong Kong, supra note 113, at 226–37.
186 Supra, sub-subsection “The Sliding Scale of Justified State Intervention.”
187 E.g., Official Reports of Proceedings (Legislative Council of Hong Kong), Nov. 27, 2013, at 3333–36 (thinking the registration scheme covers proper conduct of columbarium businesses by the temples).
188 Law Reform Commission of Hong Kong, supra note 113, at 20.
189 Id. at 20, 104.