The University of Hong Kong

Faculty of Law

LAW AND SOCIETY (LLAW1009)

Examiners’ Report (2018-19)

Date of Exam: 11 May 2019

Time of Exam: 9.30 am – 11.45 am (including 15 minutes reading time)

Question 1

Explain the nature of political power. What is the relationship between

“political power”, “the State”, “coercion” and “thought control”?
Illustrate your answer with reference to examples discussed in the course
materials in this course, or in history, or in the world today.

Most students who answered this question performed well.

In the lectures in this course, we introduced the concept of “political

power” (as one form of power in society; the other types of power include
economic power and ideological power) as consisting of two ingredients
– coercion and exercise of authority (legitimacy). The State is defined as
a society or community in which political power exists, i.e. there exist
rulers who exercise political power over the population on a particular
territory. Coercion and thought control (the latter is related to
authority/legitimacy) were discussed in the tutorial on this topic. In
answering this question, students should explain clearly the above
concepts and their inter-relationship. Good answers should provide
relevant examples from the course materials, in history or in the world
today regarding the use of coercion and thought control as elements of
political power.

Question 2

Among the ideas and theories developed by Hobbes, Locke, Rousseau,

and Marx, which (if any) do you think are still valid and useful today, and
which (if any) should be rejected or discarded?
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Most answers to this question were satisfactory or good.

The political thought of these four thinkers was discussed in both lectures
and tutorials. Students should explain the key points in each thinker’s
thought, and then discuss the student’s own views as to whether they are
still valid and useful today (or should be rejected or discarded). Good
answers should refer to examples in Hong Kong, China or other parts of
the contemporary world.

Question 3

Using examples from any jurisdiction with which you are familiar,
illustrate the differences between the “pyramid” and “flower” metaphors
in dispute resolution.

Students should describe what the pyramid and flower metaphors in

dispute resolution are. They should also explain the different assumptions
underlying the two metaphors. By examples, they should illustrate the
understandings that these metaphors help deepen.

Many students have pointed out that the pyramid metaphor is more used
in the settings of litigation, while the flower metaphor is more broadly
used in the settings of dispute resolution. Some also suggest that the
pyramid metaphor helps us understand the role of various players in the
transformation process. Others argue that the flower metaphor helps to
expand the tactics and discourses in the dispute resolution process.

Question 4

Using Galanter’s (1974) concepts of “repeat player” (“RP”) and “one

shotter” (“OS”), analyze whether the “haves” will come out ahead in
Hong Kong’s civil litigation. What can be done to improve the fairness of
the system?

Students should explain the different resources and skills of RP and OS in

litigation, which lead to consequences in favor of the “haves”. In HK’s
context, the conditions favoring RP still exist, though not as biased as those

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in Mainland China. Students should discuss how to shift the positions
between OS and RP in Hong Kong.

Most students have correctly responded to the question. Many point out
that “shifting positions” is the key to level the field. Others raise
concerns about the cost of lawyering and the issue of judicial
independence. Some also suggest changes in the law. All these indicate
that students have been able to employ the concepts of OS and RP in their
analysis.

Question 5

Two pregnant women were admitted yesterday to ABC Hospital.

The first woman is X, who is 30 years old. She was brought to the
hospital by an ambulance after being found unconscious at a bus shelter
in a seedy area of town notorious for prostitutes soliciting for customers
and for drug addicts and traffickers. Many of the drug addicts wind up
being admitted to ABC Hospital in an unconscious state from an overdose
of illegal drugs. Upon examining her, the hospital discover that X is
about 34 months pregnant. X is also bleeding heavily from her womb,
probably as a result of her falling to the ground when she fell
unconscious. The consensus of the hospital's emergency team is that
unless an emergency Caesarian section operation is carried out to deliver
the unborn child within the next 24 hours, there is a very high chance
("over 80%") that both mother and unborn child will die. The medical
team is also agreed that if the operation were to be carried out, there
would be a "over 95% chance" that both mother and child would survive
and be restored to good health. Six hours after her admission, X recovers
full consciousness and the situation is explained to her. The hospital asks
for her permission to carry out the Caesarian section operation, but X
adamantly refuses. When asked why, she replies bitterly: "I don't care if I
die. I don't care if my baby dies. And it is not anybody's business if it
does die, because it belongs to me. Nobody cares about us before. So why
bother now?" She then resolutely refuses to discuss the matter any
further.

The second woman is Y. She, too, has been brought to hospital

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unconscious after she collapsed while helping out as a volunteer at a
charity restaurant that feeds the poor for free. Emergency examination
and tests carried out on her reveal that she is in exactly the same position
as X: 34 weeks pregnant, bleeding from the womb, a greater than 80% of
death for both mother and unborn child if a Caesarian section is not
carried out within 24 hours, a greater than 95% chance of healthy survival
for both mother and child if operation is carried out. When Y wakes up,
she is furious to find herself in hospital. It soon emerges that she is in
fact a very highly educated and successful banker. Like X, she refuses
the operation point-blank, but for a very different reason. She says that
her religious beliefs absolutely forbid her to accept any form of medical
treatment: not even pills, much less an invasive procedure like a
Caesarian section. Her husband arrives shortly after, and demand that she
be immediately discharged. It is clear to the hospital that they are a
loving and committed couple, and that the husband too, is highly
educated and deeply committed to the same religion.

Using the cases of X and Y above, discuss how (in your view) the
competing interests of the mother and her unborn child might be
managed, from a legal viewpoint, and from a moral viewpoint?

Students will need to refer to St George's Healthcare Trust v

S., and discuss the tension between the principle of the sanctity of life, vs
that of the principle of autonomy. How do courts deal with such conflicts
of principles at the highest levels? Should the right of the mother to
make decisions in the name of autonomy which are likely to harm (or kill)
the unborn child be set above the principle of the sanctity of
life? Better students will also want to discuss the fact that in the case of
both women, the arguments in favour of sanctity of life are aligned in that
their refusal of a CA section is likely to kill not only the unborn children,
but also themselves. References to, and a discussion of the legal status
of the unborn child in Attorney-General's Reference No 3 would be
appropriate. Students may also want to make reference
to Airedale NHS Trust v Bland discussing the consequences of rejecting
the principle of the sanctity of life as the default 'paramount' principle in
such cases. Finally, from an ethical perspective, should the two cases be
treated differently from a moral perspective, in that the mother in the first
case clearly values her own life (and that of her unborn child) much less
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than that of the mother in the second case? A number of students chose
to additionally analyse and compare the two situations from the
perspective of moral theories such as those of Bentham, Mill and Kant:
credit was given for such additional perspectives as was appropriate, on
the proviso that the central issue of the tension between fundamental
principles (e.g. invididual autonomy, and the sanctity of life) was
adequately addressed, applying the cases mentioned above (St George’s
Healthcare Trust in particular, given its direct relevance).

Question 6

Please analyse both of the scenarios below (parts (a) and (b), which carry
equal marks) by discussing the moral, legal and social implications. In
your answer, you may also like to discuss whether you would support
reforming the law on organ transplant in Hong Kong.

(a) Queenie and Jenny are twin sisters who are 18 years old. They
have been very close since birth. Unfortunately, when Queenie was
10 years old, she had a case of meningitis which is an inflammation
of the membranes surrounding the brain and spinal cord. Due to
delay in treatment, she has suffered from neurological problems
and her brain has been permanently damaged. Her mental age has
remained to be 10 years old. Nevertheless, Queenie is a joyful and
loving girl, especially to Jenny.

Lately, Jenny has been diagnosed with chronic kidney failure and is
desperate for kidney transplant. However, the number of patients
on the waiting list for kidney transplant in Hong Kong is more than
two thousand. Although Queenie is mentally incapacitated, she is
aware of Jenny’s suffering and the role that she may play in
Jenny’s life. She loves her sister very much and does not want to
lose her. She would like to donate one of her kidneys to Jenny. The
doctor has confirmed that the kidneys of the two sisters would
match. The parents of Queenie and Jenny also support the decision
of Queenie. The whole family does not want to lose Jenny.
According to the Human Organ Transplant Ordinance, the legal age
for organ donation is 18 years old.

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 Would you support the decision of Queenie and the family? Why or
why not?

(b) Jerry was a fireman and he was badly injured in a rescue mission.
His face has been severely disfigured. Since then, Jerry has been
suffering from depression with suicidal tendency. His wife,
Maggie, is anxious to help him and has been exploring the
possibility of face transplants. However, there have only been very
few donors who are willing to donate their faces after death.

Maggie has decided to look for a vendor who is willing to sell the
face of a deceased family member. It happened that Jay is willing
to offer the face of his deceased father for sale. Jay needs the
money to go to college and his decision is also supported by his
mother.

Would you support the decision of Maggie and Jay? Why or why
not?

The question tested students’ knowledge on the law and morality debate
in the controversies of organ donation and organ sale. A competent
answer should discuss, apply and analyze the theories of utilitarianism,
liberalism and harm, and Kantian concept of categorical imperative. An
average B grade answer would have referred to all three theories and
made reasonable attempt to apply them to the given scenarios.

Part (a) invited students to discuss the issue of consent and autonomy,
namely whether the law should respect the wish of Queenie, a mentally
incapacitated adult. Most students have spotted and discussed the issue.
A few answers just applied the legal age of 18 years old strictly.

Other than discussing the theories and the moral implications, stronger
answers (B+) have addressed the legal and social implications of
allowing Queenie to donate her organ, and the need for legal reform.
Namely, some argue that the law should have addressed, or have
mechanism to ascertain the wish of mentally incapacitated persons or
children. A few good answers referred to the situation of Tang Kai Sze, a
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17 year who wished to donate her kidney to her mother but was rejected
by the Hospital Authority. Some also argue the possibility of exploitation
or pressure coming from parents, and the floodgate problem to future
cases.

Part (b) invited students to discuss the issue of organ sale of dead body
which the wish of the deceased could no longer be ascertained. The
scenario is concerned about the sale of the face of a deceased person,
arguably one’s face forms the core identity of an individual.

Stronger answers (B+) have addressed the issue of the significance of

transplanting one’s face which is closely linked to the concepts of identity
and dignity under Kantian theory. Equally good answers have
distinguished organ donation from organ sale. Strongest answers would
have tackled the problem of organ sale, black markets and the need for
legal reform for society.

The weakest answers (F) are those that have not made any reference to
the theories mentioned at all.

Common Weaknesses:
- Students supported the application of utilitarianism and self-
determination for scenario (a) but switched to be a supporter of
Kant in scenario (b);
- Only referred to the second maxim (“act so that you treat
humanity, whether in your own person or in that of another, never
simply as a means but always at the same time as an end”) of Kant
without mentioning the first maxim
- Mentioned Kant’s categorical imperative (“act only according to
that maxim by which you can at the same time will that it should
become a universal law”) but without applying it;
- Mentioned the concept of ‘dignity’ without defining it under the
Kantian concept, or applying it loosely (e.g. claiming as long as
there is love, there is dignity)
- Confused “sanctity of life” with “intrinsic worth of human being”
- Failed to apply all 3 theories in both scenarios