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.

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.

Trevor Wan on Contesting Collateral Challenge: HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71 (Judicial Review)

"Contesting Collateral Challenge: HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71"
Trevor Wan
Judicial Review
Published Online: December 2024

Introduction: 

1. A collateral challenge exposes to legal scrutiny a public law act or decision in proceedings the primary object of which is not to impugn the validity of that act or decision. The public law challenge, rather, is ‘collateral’, ‘indirect’, or ‘incidental’ to the main issue under determination, which may be the liability or guilt of the defendant. As a collateral challenge is asserted outside the parameters of conventional judicial review, it is neither subject to nor encumbered by the procedural peculiarities that underpin the latter, thus rendering it an ‘exception’ to the well-recognised rule of procedural exclusivity in O’Reilly v Mackman. In the criminal context, a collateral challenge typically contests a public law act, the lawfulness of which constitutes an essential ingredient of the offence with which the defendant is charged, relying on for example the familiar grounds of illegality, irrationality, and procedural impropriety. If successful, the collateral challenge will undermine the prosecution’s case and potentially lead to an acquittal.

2. The doctrine of collateral challenge was recently considered by the Hong Kong Court of Final Appeal (CFA), the apex court of the jurisdiction, in HKSAR v Chow Hang Tung. In a split decision by a narrow margin of three-to-two, a majority of the CFA reaffirmed the principles governing the availability of collateral challenge in criminal proceedings laid down in R v Wicks and Boddington v British Transport Police, which are rooted in statutory interpretation. Furthermore, the CFA explicitly recognised a discrete category of collateral challenge, where the challenge stems not from statutory non-compliance or conventional public law grounds (i.e. ordinary collateral challenge), but incompatibility with constitutional provisions in the Basic Law and Hong Kong Bill of Rights, the Special Administrative Region’s statutory charter of rights incorporating the International Covenant on Civil and Political Rights (i.e. constitutional collateral challenge).

3. While the defendant in the end fell short of escaping conviction, the judgment...

(Click here to read the full article)

Xin He on The Judicial System of China (Oxford University Press)

The Judicial System of China
Xin He
Oxford University Press
Published in November 2024

Abstract: Grounded in both English- and Chinese-language sources, The Judicial System of China is a systematic study of Chinese courts after Xi Jinping took power and thoroughly reformed China’s judiciary. How have Chinese courts come to the shape they are in today? How are decisions made on the major categories of cases—civil, criminal, and administrative? What drives and explains the behavior of the judges? How do the common people view the law and courts? How are the legal professions developed, and what are their roles in court? How do the judges interact with other actors—their political bosses, the prosecutors, and the lawyers? Different from the judicial independence perspective and the rights-protection approach, this book presents a governance model for understanding the operation of the Chinese court system, under which the courts have two overarching characteristics—policy implementation and legitimacy enhancement. The various policies that the courts are tasked with implementing, and the approaches the courts use for enhancing the judiciary’s legitimacy— and, by extension, that of the state, have played key roles in the courts’ evolution. This book is as much an account of Chinese courts in action as a social ethnography of China in the midst of momentous social change.

Po Jen Yap on Dialogic Judicial Review and First World Autocracies (new book chapter)

"Dialogic Judicial Review and First World Autocracies"
Po Jen Yap
in Madhav Khosla (ed),Vicki C Jackson (ed),Redefining Comparative Constitutional Law: Essays for Mark Tushnet (Oxford University Press),Chapter 19,pp.274 - 292
Published online: November 2024

Abstract: Dialogic or weak-form review is the only viable and effective path for courts operating in First World autocracies. The judicial use of strong-form review to address problems posed by sedition laws and restrictions on the franchise—as Mark Tushnet suggests—would be counterproductive as this would only be to the detriment of the courts. At the same time, I argue that dialogic review is not judicial abdication. I will also show how weak-form review has enhanced rights protection in Singapore and Hong Kong, and has imposed soft but meaningful controls on state power in these autocracies. Precisely because these autocracies want to remain First World, the perceived independence of the courts must be preserved for their governments to retain talent and continued investments in the economy. Governments in First World autocracies are sensitive to global businesses’ perception of the regime’s commitment to the rule of law as that directly impacts the entity’s economic future. This is unlike military dictatorships and banana republics, where the rent-seeking behavior of autocrats is driven primarily by the self-interest of its cabal. Therefore, in First World autocracies, so long as the courts respect the regime’s plenary agenda-setting powers, the government will in turn acquiesce to the judiciary’s calibrated show of force to preserve rights.

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.

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.

Benjamin Chen & Brian Libgober on Do Administrative Procedures Fix Cognitive Biases? (Journal of Public Administration Research and Theory)

"Do Administrative Procedures Fix Cognitive Biases?"
 Benjamin Minhao Chen & Brian Libgober 
Journal of Public Administration Research and Theory, 
Published on 8 February 2023
https://doi.org/10.1093/jopart/muac054

Abstract: This article uses survey experiments to assess whether administrative procedures fix cognitive bias. We focus on two procedural requirements: qualitative reason-giving and quantitative cost-benefit analysis (“CBA”). Both requirements are now firmly entrenched in U.S. federal regulation-making. Multilateral organizations such as the World Bank, OECD, and EU have encouraged their broad diffusion across many national contexts. Yet CBA, in particular, remains controversial. Supporters of CBA claim it leads to more rational regulation, with Sunstein (2000) explicitly proposing that CBA can reduce cognitive biases. By contrast, we argue that procedures should be conceptualized as imperfect substitutes subject to diminishing marginal benefits. To test and illustrate this argument, we examine how each procedure individually and cumulatively modulates the effects of gain-loss framing, partisan motivated reasoning, and scope insensitivity in a nationally representative sample. We find that one or both procedures decrease each cognitive bias. CBA is most helpful against partisan reasoning, where reason-giving does little. Both procedures are comparably effective for combatting the other biases, although in each case only one procedure produces cognitive benefits distinguishable from zero. We only find substantial synergies between the two procedures with respect to gain-loss framing. Layering on the less-useful procedure does not significantly reduce the other two cognitive biases. We hypothesize that procedures will only fix cognitive biases if they disrupt bias-inducing mental processes, and we reconcile this proposition with our findings. We conclude by relating this work to debates about the design of administrative procedures and describe a research agenda based upon rationality-improving procedures.

Shiling Xiao (RPg) & Yang Lin (RPg) on Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power (The Journal of Comparative Law)

"Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power"
Shiling Xiao  (RPg: currently postdoc) & Yang Lin (RPg: currently ARO) 

The Journal of Comparative Law, Special Part: Issues in Administrative Justice, Volume XVII, Issue 2, pp. 371-392

published in 2022

Abstract: Since 1989 when China adopted its first Administrative Litigation Law (ALL), it had long excluded administrative rulemaking from the court’s purview in administrative litigation, known as the Chinese judicial review of government actions. The courts were not expressly vested with the power to review administrative rules until the first amendment to the ALL in 2014. This article examines the evolution of the Chinese judicial review of administrative rulemaking and the court’s practice in the last seven years (2014-2021). It argues that whereas the judicial empowerment in 2014 is a symbolically significant step toward improving Chinese administrative rulemaking, public accountability, and the rule of law, China has merely established a weak-form judicial review of administrative rules, and the timid and deferential approach of the courts to this new empowerment seriously limits the judicial function of supervising government’s policy-making. This article underlines that judicial review of administrative rules in China is tied to limitations with regard to the scope, intensity and effect of the review. Only administrative normative documents that are at the bottom of the hierarchy of the Chinese legal system and have the lowest legal force are amenable to judicial review. The courts are not expected to scrutinise the reasonableness and proportionality of these documents, and they cannot even strike down invalid ones. They employ the report and record procedure to transfer the decision power to high courts. In practice, the courts declined pleas for reviewing administrative rules in most cases. Even when they accepted the review requests, they seldom closely and effectively scrutinised the substantive content and merits of administrative normative documents. During administrative litigation, they also consulted with the executive authorities and deferred to their opinion. 

Eric Ip on The Political Economy of Anglo-American Administrative Law (British Ass'n of Comparative Law)

“Judging Regulators: The Political Economy of Anglo-American Administrative Law”

Eric Ip
British Association of Comparative Law

November 5, 2021
We tend to think of administrative law as an external constraint on politics, regulation, and public administration, and forget the fact that administrative law actually rests upon political foundations and is part and parcel of the political system. The overall insight of Judging Regulators is that administrative law is not an exogenous determinant of administrative behaviour. Administrative law, as developed by common law courts, will evolve in response to broader changes in the polity, subject to constraints imposed by political actors and the scarcity of judicial resources. Such changes are not necessarily constitutional shifts, but more subtle changes in the partisan and ideological composition of the legislature in particular, and the electorate in general.

     Judging Regulators derives insights from political science and economics to solve the mystery of why administrative law in the United States and the United Kingdom – the world’s two most influential common law countries – fundamentally diverges from each other on questions of law, fact, and discretion. Divergence was not always the case. From the founding of the American Republic in the eighteenth century to the immediate years after the Second World War, administrative law in these two English-speaking countries showed remarkable similarities. Judicial review of administrative acts grew exponentially in both jurisdictions as their administrative states became larger and more powerful during the second half of the twentieth century... Click here to read the full post.

New Book: The Oxford Handbook of Comparative Administrative Law (co-edited by Eric Ip)

The Oxford Handbook of Comparative Administrative Law

Edited by Peter Cane, Herwig C H Hofmann, Eric C Ip, and Peter L Lindseth

Oxford University Press

Published in December 2020

1,168 pp.

Abstract: The comparative study of administrative law has a long history dating back more than 200 years. It has enjoyed a renaissance in the past 15 years or so and now sits alongside fields such as comparative constitutional law and global administrative law as a well-established area of scholarly research. This book is the first to provide a broad and systematic view of the subject both in terms of the topics covered and the legal traditions surveyed. In its various parts it surveys the historical beginnings of comparative administrative law scholarship, discusses important methodological issues, examines the relationship between administrative law and regime type, analyses basic concepts such as 'administrative power' and 'accountability', and deals with the creation, functions, and control of administrative power, and values of administration. The final part looks to the future of this young sub-discipline.
     In this volume, distinguished experts and leaders in the field discuss a wide range of issues in administrative law from a comparative perspective. Administrative law is concerned with the conferral, nature, exercise, and legal control of administrative (or 'executive') governmental power. It has close links with other areas of 'public law', notably constitutional law and international law. It is of great interest and importance not only to lawyers but also to students of politics, government, and public policy. Studying public law comparatively helps to identify both similarities and differences between the way government power and its control is managed in different countries and legal traditions.

    HKU Law colleagues contributed to three chapters of this important work co-edited by Eric Ip: Ch 4 "A Chinese Tradition" by Albert Chen, Ch 14 "Parliamentary Regimes" by Eric Ip, and Ch 17 "Authoritarian Regimes" by Po Jen Yap.

New Book by Eric Ip: Judging Regulators: The Political Economy of Anglo-American Administrative Law (Edward Elgar)

Judging Regulators: The Political Economy of Anglo-American Administrative Law

Eric Ip

Edward Elgar Publishing 

Published in October 2020, 192 pp.

Description: Drawing insights from economics and political science, Judging Regulators explains why the administrative law of the US and the UK has radically diverged from each other on questions of law, fact, and discretion.

    This book proposes an original interdisciplinary theory that integrates the concept of veto-gates into a strategic model of judicial review of administrative action. It argues that long-term changes in the number of effective veto-gates in the US and the UK are the key to understanding the antithesis that emerged between their administrative jurisprudence. It then forecasts the future of Anglo-American administrative law in light of recent destabilizing political developments, such as attempts by the US Congress to abolish Chevron deference and the UK Supreme Court’s interventionist decision in R (on the application of Miller) v. The Prime Minister.

    A crucial overview of the history and future of administrative law, this book is critical reading for scholars and students of public law and comparative law, particularly those focusing on comparative administrative law in common law contexts. Its theoretical insights will also be useful for political scientists and economists interested in judicial politics and regulation.

‘A wonderful example of interdisciplinary comparative scholarship and an extremely insightful analysis of the different trajectories of administrative law in the United States and the United Kingdom. This is a must-read for public law scholars of all kinds.’

   – Mila Versteeg, University of Virginia, School of Law, US

Contents: 1. Antithesis in Anglo-American Administrative Common Law 2. A Veto-gate Theory of Administrative Common Law 3. Law and the Regulatory State 4. Judicial Review of Administrative Statutory Interpretation 5. Judicial Review of Administrative Factfinding and Discretion 6. Closing Remarks

Eric Ip and Po Jen Yap on Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice (Chinese J Comp L)

"Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice"

Eric Ip and Po Jen Yap

The Chinese Journal of Comparative Law

12 May 2019, Vol.7(1), pp.190-211 

Abstract: The rise of the regulatory state, compounded by political polarization, in the Hong Kong Special Administrative Region of the People’s Republic of China has opened up opportunities for its common law courts to substantively review the lawfulness of an array of governmental actions. Through the development of doctrines on reasonableness review and substantive legitimate expectation, the Hong Kong judiciary has sought to assert its relevance by nudging, incentivizing, and, at times, compelling the local government to deliberate and reason carefully before the latter implements decisions that restrict the citizenry’s rights and interests. Nevertheless, the courts have consistently under-enforced these doctrines in actual cases, affirming the lawfulness of administrative acts in the vast majority of substantive review cases that come before them. The hallmark of Hong Kong’s autochthonous administrative law, a legal transplant sourced from England, but indigenized and grown in Chinese soil, is thus characterized by liberal rhetoric paired with limited judicial intervention in practice.

Family Victimisation and Adolescent Cyberbullying in China (Child Abuse & Neglect)

"Family poly-victimization and cyberbullying among adolescents in a Chinese school sample"

QiQi Chen,  Camilla K.M. Lo,  Yuhong Zhu,  Anne Cheung,  Ko Ling Chan, and Patrick Ip
Child Abuse & Neglect
March 2018, Volume 77, pages 180–187

Abstract: The sustained increase in their use of social networking facilitates the development of adolescents but comes with the risk of cyberbullying, which creates new challenges in regard to adolescent protection. Past evidence shows that family victimization may play an essential role in the way adolescents learn cyberbullying behaviors. Yet, research on the co-occurrence of family victimization and cyberbullying is limited. This study aims to investigate the associations between cyberbullying and family victimization among adolescents, and to examine the health correlates of cyberbullying and family poly-victimization. A large sample of 18,341 students, aged 15–17, from six cities in China, collected between 2009 and 2010 is employed in the present study, which investigated the association between various kinds of family victimization and adolescent cyberbullying. Data analysis was conducted in 2017. In-law conflict, intimate partner violence, elder abuse and neglect, and child maltreatment were associated with a higher possibility of children becoming internet victims. Parents’ divorce and separation, low family income, mother’s low level of education, and father’s unemployment were all associated with cyberbullying victimization. Cyber victimization was positively correlated to symptoms of PTSD and depression, self-harm, and other physical and mental health variables. Possible explanations for the relationships found in this study are discussed and implications for future research and services are provided. Proactive screening for family poly-victimization and cyberbullying is suggested. Schools are highly recommended to cooperate with parents to promote cyber safety.

Eric Ip on Debiasing Regulators and the Behavioral Economics of US Administrative Law (CLWR)

"Debiasing regulators: The behavioral economics of US administrative law"

Eric Ip
Common Law World Review
October 2017, Vol. 46, Issue 3

Abstract: Behavioral economics has revolutionized American legal scholarship in many areas of law, but not in administrative law, the law that regulates the regulators. This article theorizes that the administrative law doctrines developed by the Supreme Court of the United States strikingly resemble a system of ‘debiasing’ devices developed to counteract bureaucratic and judicial behavioral failures in just the areas that they matter most. A strong, alternative, justification may thus exist for the enduring paradox of American administrative law that administrators should be prepared to have their substantive decisions scrutinized by ‘hard look’ reviewing courts, while judges should be ready to defer to agencies on questions of statutory interpretation.

Congratulations to Wesley Wong SC (New Solicitor General)

Congratulations to our alumnus, Mr Wesley Wong SC (LLB1992; PCLL 1993), who has been appointed Solicitor General of the HKSAR Government.  Mr Wong will vacate from his current post as Deputy Director of Public Prosecutions and assume office on 3 September 2015.  In announcing the appointment, the Secretary for Justice, Mr Rimsky Yuen SC (LLB 1986; PCLL 1987) described Mr. Wong as "a lawyer of outstanding abilities and integrity."  The Solicitor General is a Law Officer in the Department of Justice and head of the Legal Policy Division, which oversees the Law Reform Commission Secretariat and the general and constitutional law legal policy sections.  The Solicitor General is responsible for "the development of legal policy" and "advising the Secretary for Justice on a wide range of complex and sensitive legal issues and overseeing the department's legislative programme."  Mr. Wong was appointed Senior Council in 2013.

New Edition of Halsbury's Laws of Hong Kong (Constitutional Law and Contempt of Court)

Congratulations to Mr Justice Kemal Bokhary (Honorary Professor) and Professor Johannes Chan who have re-written and updated the Constitutional Law chapter in volume 16 of Halsbury's Laws of Hong Kong, second edition (May 2015). The contributing editors to the chapter were Mr Danny Gittings (PhD candidate), Ms Alison Y.Y. Choy (BSocSc(Government & Laws), LLB & PCLL), and Mr Anson Wong Yu Yat (BBA (Law), LLB & PCLL). 

     Dr. Keith Hotten is the author of the revised Contempt of Court chapter.

New Writing from Bryane Michael (AIIFL Fellow)

"Hong Kong can lead the way in taking stock of law firms"

Bryane Michael

South China Morning Post

10 March 2015

Should Hong Kong's law firms have the right to sell shares on the stock market? A debate is raging among scholars, lawmakers and lawyers themselves. Countries such as Australia have allowed a few law firms to list. Britain and the United States have debated for years ways of opening up their legal professions to competition and innovation. Why shouldn't retail investors have the right to share in lawyers' good fortune (and high fees)? In our recent paper in the Law Society journal, Hong Kong Lawyer, Ajay Shamdasani and I looked at the potential benefits of allowing law firms to list. We calculate that the top 25 firms in the city would have a combined market capitalisation of more than US$8 billion. Such a capitalisation would add depth to Hong Kong Exchanges and Clearing and encourage openness... Click here to read the full article.
Dr Bryane Michael is a Fellow of the Asian Institute of International Financial Law (AIIFL) and specialises in the use of economic analysis in legal drafting (Twitter: @BryaneBryane).  Some of his recent publications include the following:

"Making Hong Kong companies liable for foreign corruption"

Journal of Financial Crime

Vol. 22, Issue 1, pp 126-150

Abstract:  The purpose of this article is to assess the extent to which Hong Kong’s laws deter its companies from engaging in corruption and bribery abroad. A mix of economics, public administration, management and legal analysis was used to assess weaknesses in Hong Kong’s laws governing the prohibition of bribe payments abroad. Hong Kong does not explicitly criminalise corporate bribery abroad. Companies – as legal persons – can not be found guilty of corruption. It is argued that Hong Kong’s Legislative Council should amend various laws to modernise Hong Kong’s approach to tackling corruption committed by its companies abroad. The various approaches lawmakers can take towards assigning responsibility for corruption to companies are presented. The approaches that prosecutors at the Department of Justice can take to adopt prosecutorial methods like those used in other upper-income jurisdictions and the ways that Independent Commission Against Corruption (ICAC) can assist in this work are also described. This research has practical findings for Hong Kong’s policymakers, law firms and companies which operate in Hong Kong. For policymakers, we describe legal changes Hong Kong’s legislators will likely make in the years ahead and the preferred ways of engaging in such change. For law firms, we describe the legal changes coming to Hong Kong which legal advisors will need to advise their clients on. For companies, we describe changes that companies operating in Hong Kong will likely need to comply with in the future. This paper shows that when Hong Kong adopts best practice in the field of corporate criminalisation, Hong Kong’s role in “exporting” corruption will likely fall. This article describes a set of legal changes which will change the way Hong Kong treats corruption. The literature tends to glamorise Hong Kong’s anti-corruption work. It is shown that its law falls far behind other jurisdictions, as well as how “treating companies like people” in the case of Hong Kong will likely change the way Hong Kong’s prosecutors think about crime and criminal perpetrators.

"A Law and Economics Analysis of the Incentives Driving Malaysian Banks’ Compliance with the Malaysian Competition Act"

World Competition

Vol. 38 (2015), pp. 133-169

Abstract: Judging by only economic incentives, Malaysian financial institutions (particularly banks) should carefully consider the incentives driving the Competition Act. The data show that Malaysian banks remain vulnerable to incentives leading to anticompetitive behaviour. The Malaysian Competition Commission will likely lack the resources to investigate and sanction anticompetitive behaviour in Malaysia's banking industry. Maximum fines of MYR 10 million and revenue-tied penalties of only 10% of worldwide revenue mean that banks still have strong incentives to engage in anticompetitive behaviour and to pay any low fine that might be levied. By staying the course, Malaysian banks can continue to earn about MYR 15 billion (approximately USD 4.6 billion in anticompetitive rents).

"How Can the ICAC Help Foster the Widespread Adoption of Company Anticorruption Programs in Hong Kong?"

North Carolina Journal of International Law & Commercial Regulation

Vol. 40, Issue 2, Winter 2015, pp. 355-441

Introduction: Business measures against corruption represent the bulwark against bribery and other corruption offences in most upper- income jurisdictions. Businesses take these measures in response to the incentives legislation, executive regulations, and other rulemaking provides to them. As early as 1980, scholars documented the effect that anti-corruption law—and specifically the Foreign Corrupt Practices Act—has had on encouraging businesses to adopt changes to their accounting and compliance programs. Anti-corruption laws have had an impact on the measures businesses take to prevent, detect, and curb corruption committed by their agents and partners. These measures—in turn—significantly affect the extent of corruption committed by companies’ principals, agents, and partners. Yet, Hong Kong companies do not implement many of the common measures used to prevent and/or detect. As shown in this paper, Hong Kong’s companies rank among the worst in terms of implementing anti- corruption measures. Most of the blame falls on Hong Kong’s legislative framework (and the lack of incentives this framework provides)...

"Evidence-Based Law: Using Data to Design and Implement Ethics-Related Administrative Law"

Centre for Comparative and Public Law, Occasional Paper No. 27

December 2014

Abstract: The prosecution of high profile multi-national corporations (MNCs) over the past decade for bribery of public officials acting in their official capacity has raised the need for drafting ethics-related administrative law. So, how should countries draft ethics-related administrative law? Should such law be driven purely by normative ethics based on how one ought to act? Or, should we take into account empirical data in drafting ethics-related administrative law? A related question is who should oversee these ethics-related laws? This paper discusses the role of empirical data in deciding which provisions to include in ethics-related law and when deciding on the division of competencies between agency directors, ethics officers, human resource directors, internal auditors and others. We describe how to draft subsidiary legislation (mainly executive agency regulations) based on explicit or implied competencies given by national legislation. We then discuss how to conduct the organisational, legal, economic and audit analysis needed to allocate ethics related rights and obligations across-government and within the Agency. This paper serves as a lone counter-weight to the principles-based approaches flooding the literature. We illustrate our discussion largely using examples from Romania and Hungary.