Edward Lui on Public interest immunity and judicial deference (Legal Studies)

"Public interest immunity and judicial deference"
Edward Lui
Legal Studies
Published online: April 2026

Abstract: The puzzle underlying the law of public interest immunity (PII) is well known. In ordinary proceedings all relevant evidence should be placed before the court and the parties, including when the government is one of those parties. But what if some of the relevant evidence – due to reasons in the public interest – cannot be disclosed to the other parties involved? The traditional way in which English law tackles this puzzle is by invoking the law of PII. Ever since the landmark decision in Conway, it has been settled that ‘the courts should balance the public interest in the proper administration of justice against the public interest in withholding any evidence which a Minister considers ought to be withheld’. If the public interest favours disclosure of the evidence, the evidence is admitted and made ‘available to both parties and to the court’; but if the contrary is true the evidence will be excluded altogether from the proceedings and made ‘available neither to the other parties nor to the court’.

Lusina Ho and Hui Jing on The Dominance of Regulatory Oversight in Chinese Investment Trusts (Asia-Pacific Trusts Law, Volume 3)

"The Dominance of Regulatory Oversight in Chinese Investment Trusts"
Lusina Ho and Hui Jing
Asia-Pacific Trusts Law, Volume 3, Boundaries in Context, Part II, Chapter 10
Hart Publishing
Published online: May 2025

Abstract: A fundamental tenet in the relationship between regulations and private law is their functional dichotomy. Private law deals with the adjudication of bilateral rights and duties between individuals. Its main purpose is to protect the rights of individuals from infringement by others. In contrast, regulations primarily serve public interests, and are typically enforced by regulatory agencies through administrative sanctions or criminal liability. In this chapter, we argue that the Chinese legal regime for investment trusts departs from this paradigmatic dichotomy. Regulatory supervision not only addresses public interest concerns, but also frequently displaces private law in resolving disputes amongst trust parties, blurring the boundary between private law and regulations. We examine the unique circumstances in China that account for this regulatory dominance and argue that it can be justified only as a temporary measure.

Following this introduction, Part II discusses the main reason for regulatory dominance in China. We examine how the widespread use of investment trusts for shadow banking raises public interest concerns when private law rights are enforced in such trusts. In Part III, we explore the use and limitations of regulatory supervision to address both the public interest and private law concerns raised by trust (mal)practice. Part IV contends that whilst regulations can be an effective interim measure for addressing private law disputes, legislators should in the long term adopt a proactive approach and enact trust laws that clearly define the rights and responsibilities of the trust parties. Part V concludes.

Full text of this chapter is available on SSRN, please click here.

Shilun Zhou on Analysis of whether restorative justice and criminal justice are incompatible justice paradigms (CJR)

"Analysis of whether restorative justice and criminal justice are incompatible justice paradigms"
Shilun Zhou (PhD Candidate)
Contemporary Justice Review
Published online: February 2025

Abstract: This essay contends that restorative justice and criminal justice are not entirely incompatible, and that their compatibility at various stages of criminal justice in the Anglo-American legal system hinges upon the extent to which either the rights of the accused or the public interest are compromised at each stage. We argue that these paradigms are incompatible at the trial stage, compatible in the post-trial phase, and conditionally compatible in the pre-trial stage. This essay is divided into three sections. First, we describe the divergence between restorative and criminal justice, highlighting the incompatibility of restorative justice during the trial stage, as it contravenes the principle of defendant protection. Second, we analyse the pre-trial stage, arguing that restorative justice measures should be applied conditionally to balance the rights of the accused with those of the victim. Finally, we posit that restorative justice can be compatible with criminal justice, but cannot wholly replace criminal justice sanctions in the post-trial phase, in order to safeguard the public interest.

Richard Cullen on Public Transport System is One of Hong Kong's Wonders (China Daily HK Edition)

"Public transport system is one of Hong Kong's wonders"

Richard Cullen

China Daily HK Edition

Published on December 15, 2022

Introduction: 

Bloomberg recently reported that Hong Kong has just been ranked as having the best metropolitan public transit system in the world, ahead of Zurich, Stockholm, Singapore and Helsinki. The study on which the report was based surveyed 60 major cities worldwide. It was carried out by the Oliver Wyman Forum and the Institute of Transportation Studies at the University of California, Berkeley.

     Reading this report prompted a short personal reflection. As age advances, I, along with many others, experience what I call “RTS” or “Roving Twinge Syndrome”. Recently, a fresh RTS experience signaled the need to visit a physiotherapist in Causeway Bay from home, also on Hong Kong Island. Within a short walk from our flat, I realized, I had access to two, frequent, virtually door-to-door minibuses; at least four similarly handy double-decker buses; plus another swift minibus ride offered an MTR option. All of these were available (another age factor) at HK$2 (26 cents) a ride. And if even more convenience were needed, there was a nearby taxi rank — with fares less than half those typically charged in other major global cities. Extraordinary, when you think about it. ... Click here to read the full text. 

New Book co-edited by Haochen Sun: The Cambridge Handbook of Copyright Limitations and Exceptions (CUP)

The Cambridge Handbook of Copyright Limitations and Exceptions

Edited by Shyamkrishna Balganesh, Ng-Loy Wee Loon and Haochen Sun

Cambridge University Press

Published in January 2021, 420 pp.                                

Book Description:  While copyright law is ordinarily thought to consist primarily of exclusive rights, the regime's various exemptions and immunities from liability for copyright infringement form an integral part of its functioning, and serve to balance copyright's grant of a private benefit to authors/creators with the broader public interest. With contributors from all over the world, this handbook offers a systematic, thorough study of copyright limitations and exceptions adopted in major jurisdictions, including the United States, the European Union, and China. In addition to providing justifications for these limitations, the chapters compare differences and similarities that exist in major jurisdictions and offer suggestions about how to improve the enforcement of copyright limitations domestically and globally. This work should appeal to scholars, policymakers, attorneys, teachers, judges, and students with an interest in the theories, policies, and doctrines of copyright law.

    HKU Law colleagues contribute to Chapters 14 ("Creating a Public Interest Principle for the Adjudiciation of Fair Use and Fair Dealing Cases" by Haochen Cun) and 19 ("From Fair Dealing to User-Generated Content: Legal La La Land in Hong Kong" by Alice Lee and Brendan Clift).

Haochen Sun on Copyright Law as an Engine of Public Interest Protection (NW J Tech & IP)

"Copyright Law as an Engine of Public Interest Protection"

Haochen Sun

Northwestern Journal of Technology & Intellectual Property
2018, vol 16, p 123
Abstract: Courts around the world have been confronted with bewilderingly complex challenges in protecting the public interest through copyright law. This article proposes a public interest principle that would guide courts to settle fair use cases with better-informed decisions. I argue that the proposed principle would legally upgrade fair use from serving as an engine of free expression to serving as an engine of public interest protection.

     Based on comparative study of the conflicting rulings handed down by the U.S. and Chinese courts on Google Library, the article first considers the necessity of adopting the public interest principle in guiding the judicial settlement of fair use cases substantively and procedurally. The article then canvasses the two substantive legal standards to be embodied in the public interest principle. First, the principle would create a public interest use standard for courts to utilize in weighing the first fair use factor without applying the dichotomy of transformative and non-transformative use. At the same time, it would also require courts to employ the significant market harm standard when considering the fourth fair use factor. Second, the public interest principle would also modify the procedural rules concerning the assignment of burden of proof in fair use cases. It would place only the burden of proving a public interest use under the first factor on the user of a work who is the defendant in the judicial proceedings at hand.

Clement Chen on Taming the Right to Information and the Public Interest Test under China's FOI-like Law (Journal of Comparative Law)

"Taming the Right to Information: Motive Screening and the Public Interest Test under China's FOI-like Law"
Yongxi Chen
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 203-215

Introduction: Promoting government accountability to the public is a core value common to freedom of information (FOI) laws around the world.  FOI law is primarily understood as an empowering tool for the civil society, for it enables citizens to take over the initiative in making government information available, in particular information necessary for the public to judge government performance, participate in public policy-making, and call administrative agencies to account for violations of law, corruption or maladministration.  That value is often echoed by Chinese officials who push through transparency reforms, and emphasized by jurists who hail the introduction of the Regulations on Open Government Information (ROGI) 2007 as a landmark improvement of the government-citizen relation or a major advance in 'democratic politics' in China.  Persistent denials of access to information concerning abuse of power and policy-making affecting crucial public interests, however, casts serious doubt on the adherence to this value in the ROGI's implementation.
     It is usually through two principles that a FOI law entrench the public accountability value.  The first is the 'requester-blind' principle which grants all members of the public a universal right to information irrespective of their identities and motives in accessing the information.  It ensures that all requesters are treated equally without any bias against those whose motives may not be favoured by officials.  It is a corollary of the essence of FOI law, i.e. government information should be disclosed by default, and should not be withheld unless it falls within the limited and statutorily prescribed regime of exceptions.  The second principle is that of subjecting exceptions to the public interest test.  This intends to ensure reducing the areas of secrecy to minimum and releasing information whose disclosure serves the public interest, including in particular accountability enhancement, that overrides the secrecy interests protected under the exemptions.  Although the ROGI is compatible with these two fundamental principles, its wording creates ambiguities which have been employed by government agencies to the detriment of this legislation's function in making the government accountable to the public.  The General Office of the State Council (Guowuyuan Bangongting, 'SC General Office' here after) issued interpretations of the ROGI to introduce a test of the requesters' needs, which actually screens the motives for access.  Agencies also tend to ignore the public interest associated with disclosure and shirk the balancing test.
     Being the sole external review body that enforces the right to information, the Chinese courts have a pivotal role to play in scrutinizing government decisions concerning these two principles.  Effective judicial scrutiny is important for the full functioning of the ROGI and and successful outcomes of the transparency reform.  The public interest test pertaining to information disclosure best illustrates the courts' view on what the values of transparency are in a society and a polity, and how important such values are when compared to the secrecy interests in a given circumstance.
     This article investigates the extent to which the public accountability value has been fostered by the ROGI by illustrating and assessing the judicial approaches to the motives of access and to the public interest test.  The section which follows criticises the problematic judicial responses to the SC General Office's interpretations, and identifies the discriminative treatment of three major sets of motive in access to information. The subsequent section summarizes Chinese judges' unique understandings of the public interest test in the FOI context, and examines the major categories of public interest that the courts have identified under two exemptions respectively.  The final section generalizes from its finding of the convergent results of both tests that there is a prevailing judicial policy to uphold 'defensive transparency' which is attached to the requester's own rights of the person and property ('personal or property right' hereafter), but to refrain from supporting 'civic transparency' - that is, the transparency to be unconditionally enjoyed by every citizen in respect of public scrutiny of government performance.  The Chinese courts have largely failed to yield their review power to uphold the pro-accountability value embodied in the ROGI, but have cooperated with administrative agencies in taming an otherwise politically significant right to information into a mediocre instrument for private interest assertion.
     In basing the investigation on representative cases, this article continues to use the methodology developed by the author in previous studies of the right to information in China.  Cases are collected from three sources that complement each other.  The first source is case collections published by the Supreme People's Court ('Supreme Court' hereafter) or compiled under its supervision.  The cases reported in these collections, called 'referential cases', are widely considered by the Chinese legal community to reflect to varying extends the intentions of the Supreme Court and its departments in guiding local courts on the adjudication in a particular field of law.  The second source is mainstream legal databases, including China Judgment Online, the official portal designated by the Supreme Court to publish the judgments rendered by courts at all levels, and ChinaLawInfo, the country's most comprehensive commercial databank.  In consideration of the overrepresentation of certain regions in the databases and the post-2013 spiralling of number of judgments on open government information (OGI) litigation, the scope of search is restricted to the judgments of the second instance in eight provincial units.  The selected units are dispersed across the country with different levels of industrialization.  Appeal judgements often involve more detailed examination of important legal issues than judgments of the first instance, and are more suggestive of mainstream judicial approaches.  The third source is news reports in fifty-nine Chinese media outlets which enjoy either great popularity or an appreciation of their professional quality, plus the 'Transparent China Online', a portal dedicated to news on OGI.  It should be pointed out that OGI cases reported by the media ('media-reported cases' hereafter) are more representative than reports of adjudicative practice in two senses.  First, they encompass cases whose judgements are withheld from online publication by the courts for various discretionary  reasons, including for instance the political sensitivity or inconvenience of the case.  Second, they are more evenly distributed geographically than those retrieved from the databases and Supreme Court-managed collections.  Searches within the three sources have yielded 289 cases which were adjudicated before the end of 2015 and which concern the issues discussed in this study.

Kai Yeung Wong Comments on the HKU Injunction Case (Civil Justice Quarterly)

"A missed opportunity to align the law of interlocutory injunctions with freedom of expression: University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd."

Kai Yeung Wong, SJD candidate 

Civil Justice Quarterly
2017, Vol. 36, Issue 3, pp 302-315

Abstract: Evaluates the Hong Kong Court of First Instance judgment in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd on whether an interlocutory injunction restraining the press from publishing the leaked transcripts of private meetings of the university's Council on the appointment of its new Pro-Vice Chancellor should be lifted to protect the right to freedom of expression as the information was in the public interest.  See also Anne Cheung's commentary on the same case.