The Yet-to-Be Effective But Effective Tax: Hong Kong's Buyer's Stamp Duty as a Critical Case Study of Legislation by Press Release

Abstract

When a government announces that an existing law will be amended and that the amendment, when finally enacted by the legislature, will be made effective from the announcement date, it is natural and inevitable that private entities will conduct their activities on the basis of the amended law immediately upon the announcement date, notwithstanding the announcement’s lack of any formal legal effect. This practice of effecting immediate de facto legal changes is known derisively, but perhaps aptly, as “legislation by press release.” This Article utilizes the recent use of legislation by press release to implement the Buyer’s Stamp Duty in Hong Kong as a case study to critically examine the legality and normative considerations of this increasingly common but under-theorized practice. Legally, this Article argues that the prospective notice provided by the initial announcement ensures the practice’s legality in all but an explicit prohibition of retrospective civil legislation. Normatively, this Article highlights the various criteria of clarity, consistency, necessity and political dynamic that affect the desirability of the practice. On a broader note, the formal retrospectivity inherent in the practice - but which does not disrupt the reliance interests of private entities - provides a useful reexamination of the conventional aversion towards retrospective laws.