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

Eric C Ip, Po Jen Yap, Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice, The Chinese Journal of Comparative Law, Volume 7, Issue 1, June 2019, Pages 190–211, DOI/10.1093/cjcl/cxz006

University of Hong Kong Faculty of Law Research Paper No. 2019/092

Posted: 27 Oct 2019 Last revised: 4 Dec 2019

See all articles by Eric C. Ip

Eric C. Ip

The University of Hong Kong

Date Written: June 1, 2019

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.

Keywords: administrative law, Hong Kong, legitimate expectations, proportionality, Wednesbury unreasonableness

Suggested Citation

Ip, Eric C., Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice (June 1, 2019). Eric C Ip, Po Jen Yap, Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice, The Chinese Journal of Comparative Law, Volume 7, Issue 1, June 2019, Pages 190–211, DOI/10.1093/cjcl/cxz006, University of Hong Kong Faculty of Law Research Paper No. 2019/092, Available at SSRN: https://ssrn.com/abstract=3471473

Eric C. Ip (Contact Author)

The University of Hong Kong ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

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