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’.

Edward Lui on Why Consult? The Case of Public Consultation in Hong Kong Administrative Law (AsJCL)

"Why Consult? The Case of Public Consultation in Hong Kong Administrative Law"
Edward Lui
Asian Journal of Comparative Law
Published online: November 2025

Abstract: This article investigates the law of public consultation in Hong Kong administrative law. The Hong Kong cases in this area have consistently followed, without question, the corresponding English authorities, and seem to have simply assumed the appropriacy of this approach. But given that it seems open to academic argument whether the Hong Kong legal system shares the same liberal democratic political theory which the English legal system endorses – and given that the English law of public consultation is commonly regarded as, inter alia, pursuing a liberal democracy-based rationale – two questions arise: (i) what is, or what are, the underlying rationale(s) for the Hong Kong law of public consultation; and (ii) to what extent is it appropriate for the Hong Kong courts to adopt the English case law on public consultation? This article contends that even assuming the Hong Kong legal system is not underpinned by a liberal democratic political theory, (i) the Hong Kong law of public consultation is underpinned by the informational rationale and a specific strand of the respect rationale; and (ii) English case law on public consultation can be implemented into Hong Kong law, insofar as its reasoning can be completed without affirming a liberal democratic premise.

New Issue of Hong Kong Law Journal (Vol. 55, Part 1 of 2025)

HONG KONG LAW JOURNAL
Vol. 55, Part 1 of 2025

Editor-in-Chief: Prof. Eric C Ip
Deputy Editor-in-Chief: Prof. Trevor Wan

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Articles

Knowing Receipt of Shares in a Foreign Non-Common Law Company: Byers v Saudi National Bank
WMC Gummow AC...1

Whose Role? Judicial vs Legislative Protection of Minority Rights
Kemal Bokhary...5

In the Name of Public Interest: Challenging the Coroner’s Failure to Hold a Death Inquest in Hong Kong
Trevor TW Wan...11

Conditional Discharge, Statutory Interpretation and the Mental Health Review Tribunal
Daisy Cheung and Edward Lui...29

Courts and the Legislative Assembly in the Macau SAR Constitutional Crisis (2005–2009)
Luis WK Wong...47

Study on the Preventive Mechanisms for Food Safety Incidents in Hong Kong and Macao: Comparative Perspectives
Ting Zhou, Zimao Xie and Jingwen Chen...77

Can Musical Elements be Copyrightable? Rethinking the Boundaries of Copyright Protection
Xuan Shen...101

Stamp Duty in Hong Kong (1981–2024): The Evolution Waltz
Wilson Chow and Josiah Chung Ming Chan...101

Daisy Cheung and Edward Lui on Conditional Discharge, Statutory Interpretation and the Mental Health Review Tribunal (HKLJ)

"Conditional Discharge, Statutory Interpretation and the Mental Health Review Tribunal"
Daisy Cheung and Edward Lui
Hong Kong Law Journal, Vol. 55, Part 1 of 2025, pp.29 - 48

Abstract: This article examines the Hong Kong Mental Health Review Tribunal’s powers in relation to the imposition of conditional discharge orders under s 59E(2) of the Mental Health Ordinance (Cap 136). The wording of s 59E(2) refers back to s 42B of the Mental Health Ordinance, the primary legislative provision governing the conditional discharge regime. There remains ambiguity, however, regarding the scope of the Tribunal’s powers in relation to such matters as the factors that the Tribunal is to consider when deciding whether to impose a conditional discharge order. Section 59E(3) of the Mental Health Ordinance, for example, provides additional factors beyond those contained in s 42B for the Tribunal to consider. In this article, we examine this ambiguity, presenting three different options as to how the interaction between ss 42B and 59E(3) might be interpreted. We then argue that the first of these options is the correct interpretation. We also examine the role that the s 59E(3) factors play within this interpretation, and in particular the implications that the s 59E(3) factors may in turn have for s 42B.

New Issue of Hong Kong Law Journal (Vol. 54, Part 3 of 2024)

HONG KONG LAW JOURNAL
Vol. 54, Part 3 of 2024

Editor-in-Chief: Prof. Eric C Ip

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Articles

Law and Justice
Kemal Bokhary...581

Legal Bilingualism in Medieval Europe and Hong Kong
Carlye Chu...589

Administrative Detention and Unreasonable Applicants: What Can Hong Kong Administrative Law Offer
Edward Lui...601

“Culture Matters”: Expedited Arbitration and Arb-Med in Macau
Hugo Luz dos Santos and Leong Cheng Hang...615

Judicial Copying in Hong Kong
Anfield Tam...639

Illegality Allegations in International Investment Arbitration
Xu Qian and Shiyang Li...657

Crimes in Virtual Spaces? A Case Study of the Metaverse Sexual Assault Incident
Zhicheng Wang and Xiaoyu Yang...681

Book Reviews

Hualing Fu and Michael Hor (eds), The National Security Law of Hong Kong: Restoration and Transformation
Stuart Hargreaves...699

Anne Carter, Proportionality and Facts in Constitutional Adjudication
Cora Chan...711

Edward Lui on Administrative Detention and Unreasonable Applicants: What Can Hong Kong Administrative Law Offer (HKLJ)

"Administrative Detention and Unreasonable Applicants: What Can Hong Kong Administrative Law Offer"
Edward Lui
Hong Kong Law Journal, Vol. 54, Part 3 of 2024, pp.599 - 612

Abstract: The Hardial Singh principles (derived from R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704) are a well-established feature of Hong Kong administrative law, in the context of administrative detention. In Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582, the Court of Appeal discussed how these principles were to be applied — when the applicant had conducted himself unreasonably, and had thereby contributed to his own prolonged detention. This investigation of the Hardial Singh principles will be divided into two parts. First, concerning Benjamin itself: it will be suggested that the Court of Appeal’s analysis deserves significant attention for considering how the Hardial Singh principles will be applied in future cases, and may contain some interpretive ambiguities in this regard. Second, this article will then extend beyond Benjamin — and reflect more generally on the broader merits of the Hardial Singh principles. It will be contended that it may be opportune for the place of the Hardial Singh principles within Hong Kong administrative law to be reconsidered - and some arguments on either side of this possibility will be examined.

Edward Lui on A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation (Legal Studies)

"A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation"
Edward Lui
Legal Studies
Published online: October 2024

Abstract: The closed material procedure (CMP) – ever since its introduction to English law – has been subjected to a very significant amount of academic criticism. But over time, the CMP has become increasingly settled as a fixture in English law. Whilst the existence of the CMP per se in English law seems settled, the extent of its deployment is not. Given this development, it seems important and constructive to examine whether – and the conditions under which – a CMP can ever be normatively justified, all things considered. Two propositions will be made. First, a common argument for the CMP – the maximising argument – does not demonstrate that the CMP is normatively justified, all things considered, for it does not sufficiently mitigate the two main objections to the CMP, based respectively on the principles of natural justice and open justice. Secondly, where the clear advantage variation is deployed – ie when a CMP allows the excluded party to make use of material that: (a) clearly advantages him; and (b) would otherwise be unavailable for the court's consideration – both objections are sufficiently mitigated. In such a case, the CMP is normatively justified, all things considered. This constitutes a limited normative case for the CMP.

New Issue of Hong Kong Law Journal (Vol. 54, Part 2 of 2024)

HONG KONG LAW JOURNAL
Vol. 54, Part 2 of 2024

Editor-in-Chief: Prof. Eric C Ip

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Articles

Never say Never: Equity’s Reach in the Modern Age
Lord Briggs of Westbourne...291

Crime and Punishment – The Birth of Justice?
Kemal Bokhary...309

All Roads Lead to Rome? Carving an Inclusive Path towards Global Regulation of State-owned Enterprises
Ying Bi...317

Liability of Remote Controller in Unmanned Ship Carriage
Zikun Chen...351

Bridging the Gap: Exploring the Co-ordination between China’s Foreign Investment Legal Regime and International Investment Treaty Practice
Tianjie Gu...363

When China’s Wealth Management Products Become Vulnerable to Runs: From Liquidity Management to Sponsor Support
Longjie Lu...395

Error of Law in Hong Kong Administrative Law: A Doctrinal Reappraisal
Edward Lui...429

Revisiting the Concept of Effective Nationality in International Investment Law
Kim Anh Dao and Hyokwon Kim...453

The Recording and Review System in Hong Kong: Formation, Evolution and Improvement
Cheng Sun and Fan Xiang...475

Improving the Management System of the Guangdong-Macao in-Depth Co-operation Zone in Hengqin According to Law
Shihai Zhu, Lejuan Zhou and Zhengmin Xu...503

Tying up Your Camel: Rethinking “Self-determination” for Digital Financial Consumer Data Protection
Zi-he Guo and Charlie Xiao-chuan Weng...525

Reconceptualising the Role of Actual Causation in Criminal Law
Dennis J Baker...555

Edward Lui on Error of Law in Hong Kong Administrative Law: A Doctrinal Reappraisal (HKLJ)

"Error of Law in Hong Kong Administrative Law: A Doctrinal Reappraisal"
Edward Lui
Hong Kong Law Journal, Vol. 54, Part 2 of 2024, pp.427 - 450

Abstract: English administrative law has once distinguished between jurisdictional and non-jurisdictional errors of law; establishing an error of law simpliciter was insufficient for an applicant. It is now trite that English administrative law has abandoned this historical distinction; an error of law simpliciter is reviewable. This investigation asks: has Hong Kong administrative law followed the modern English position, or has the historical distinction been retained? In an analysis that has been of influence in the academic literature, Thomson has concluded that the Hong Kong authorities are ambiguous on this point --- and that the doctrinal status quo is perforce problematic. This investigation reappraises Thomson’s conclusion, and contends that the doctrinal status quo is in fact clear: a clear line of authorities from the Hong Kong Court of Final Appeal affirms that an error of law simpliciter is reviewable, and the historical distinction is no longer relevant for Hong Kong administrative law.

Edward Lui on First Aid Administrative Law: Patching the Conditional Discharge Regime (HKLJ)

"First Aid Administrative Law: Patching the Conditional Discharge Regime"
Edward Lui
Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.701 - 731

Abstract: The conditional discharge regime – contained in s 42B of the Mental Health Ordinance (Cap 136) – is an important aspect of Hong Kong’s mental health law. It provides that patients falling within its scope may be discharged into the community, whilst being held subject to specified conditions. But this regime has been subjected to significant academic criticism, including in relation to its relative lack of substantive and participatory safeguards for the patients involved. This article argues that in the absence of statutory reform, the well-established principles of administrative law can offer a valuable mitigation of some of the problems observed under the regime.

New Issue of Hong Kong Law Journal (Vol. 53, Part 2 of 2023)

HONG KONG LAW JOURNAL

Vol. 53, Part 2 of 2023

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Analysis

The Ouster Clause and the Amendment to the Legal Practitioners Ordinance: an Analysis 
Ju Liu...451

Lecture

The Legal Constitution
Peter Cane...469

Focus: “Democracy and Dysfunction: Towards a Responsive Theory of Judicial Review”

Responsive Judicial Review in Asia
Rosalind Dixon...489

Responsive Judicial Review without Democracy: The Hong Kong Experience
Johannes Chan...507

Responsive Judicial Review in Taiwan
Chien-Chih Lin...539

Entrenching Democracy Through Constitutional Adjudication: The Responsive Judicial Review of the Constitutional Court of Korea
Jonghyun Park...563

The Rise and Decline of Responsive Judicial Review in Indonesia
Stefanus Hendrianto...589

Sri Lanka’s Public Trust Doctrine as Responsive Judicial Review?

Dinesha Samararatne...611

Articles

Constitutional Review of Colonial Macau: a Historical Study

Luis WK Wong...643

Mainstreaming Development Dimension into Multilateral Investment Court’s Design and Interpretative Philosophy: a Roadmap for Action

Collins C Ajibo...683

First Aid Administrative Law: Patching the Conditional Discharge Regime

Edward Lui...701

RCEP Investment Rules and a Paradigm Shift in the International Investment Regime

Sheng Zhang and Jie Li...733

Is a Belt-and-Road Investment Court Feasible? an Evaluation of Possible Choices

Wei Yin and Yawen Zheng...757

Review Article

Treaty for a Lost City: the Sino-British Joint Declaration

Richard Cullen...797

China Law

Bureaucratic-professional Conflicts in the Chinese Bureaucratised Courts

Liu Xuanxi...815

Navigating the Identity Thicket in China from a Comparative Lens: Conflicting Control Rights over a Person’s Name

Yang Chen...843

China’s Hainan Free Trade Port: Shipping Laws and Policy Reform

Zhu Li...877

Book reviews

Robert Stevens, The Laws of Restitution

WM Gummow...899

Malcolm Merry, Grounded in Kai Tak – Chinese Aircraft Impounded in Hong Kong, 1949–1952

Michael Ng...903

HKU Law Welcomes Mr Edward Lui, Assistant Professor

Welcome to Mr Edward Lui who joined the Faculty of Law as an Assistant Professor. Edward’s research examines administrative law and public law-related themes in healthcare law. He completed the LLB and PCLL programmes at the University of Hong Kong and the BCL programme at the University of Oxford, where he is currently completing his DPhil. His existing research has been published in a number of academic journals – including the Law Quarterly Review, Medical Law Review, Oxford Journal of Legal Studies and Public Law.