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Admin Law Notes print final
Administrative Law (The University of Hong Kong)
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Administrative Law
Nature of Administrative Law & JR
Judicial Review:
- Nature: (Financial Secretary v Felix Wong)
o Of a supervisory nature
§ The courts do not assume the role of the decision maker à only are concerned with the
legality of the decision in question. The courts could not possibly provide an answer to
political, social and economic problems. (Andrew Li’s speech 2006)
§ The judicial oath requires judges to look no further than the law as applied to the facts à
starting point and the end position is the law. The courts do not solve political, social or
economic issues. (Geoffrey Ma’s speech 2011)
§ Irrelevant to inquire into the motives, political or otherwise, of the parties before the court:
what matters are the legal merits. (Geoffrey Ma’s speech 2016)
o Is an exceptional remedy
o Not every decision by a decision maker is susceptible to review
o The foundation of JR is the rule of law: (C and others v Director of Immigration and Another)
§ Apart from statutory ultra vires theory, it extends JR to the exercise of non-statutory powers,
including prerogative and common law powers
§ Capable of extending to administrative powers of non-government agencies.
-
Source of the power to JR
o Ng Ka Ling v Director of Immigration:
§ “the court perform their constitutional role under the BL à acting as a constitutional check
on the executive and legislative branch of govt to ensure that they act in accordance with the
BL”
o BL:
§ Art.35(2): HK residents shall have the rights to institute legal proceedings in the courts
against the acts of the executive authorities and their personnel.
§ Art.19: the courts of HKSAR shall have the jurisdiction over all cases in the region, exception
that the restrictions on their jurisdiction imposed by the legal system and principles
previously in force in HK shall be maintained.
-
Application for JR:
o Has to first obtain leave
§ Not to be vexed with hopeless applications
-
Remedy of JR:
o lies in the court’s discretion
§ Order of certiorari (移審令)
§ Order of mandamus （執行令）
§ Order of prohibition （禁制令）
-
3 grounds of JR: (Council of Civil Service Unions v Minister for the Civil Services)
o (1) illegality
§ the decision maker must understand correctly the law that regulates his decision-making
power
§ case: The Queen v Poon Yan-chueng
• Fact: Commissioner of Correctional Services required a person released from an
addiction treatment centre to live law abiding and honest life.
• à the condition imposed is outside the parameters of the statute and ultra vires of the
Commissioner
o
(2) irrationality/ Wednesbury unreasonableness
§ a decision which is so outrageous in its defiance of logic or of accepted moral standards that
no sensible person who had applied his mind to the question to be decided could have arrived
at it.
§ Unreasonable = wholly disproportionate
§ Case: Application by Ko Mei Chun for leave to apply for JR
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•
•
o
-
Fact: Secretary for Civil Service required a court reporter to report to her supervisor’s
office for duty in the morning and after lunch à compulsory retirement
Held: the decision of compulsory retirement is manifestly unfair and unreasonable,
wholly disproportionate to the offence
(3) procedural impropriety
§ situations
• (i) fail to observe basic rules of natural justice or
o Natural justice: right to be informed & right to make representation
• (ii) fail to act with procedural fairness; and
• (iii) fail to observe procedural rules that are expressly laid down in legislative
instrument
§ case: Mohamed Yaqub Khan v AG
• Fact: a superintendent of the Police was dismissed after the recipient of a report
against him, but he was not informed of the actual allegations against him.
• Held: as requirement of natural justice, he is at least entitled to know the reason
for his dismissal. He ought to have been informed of the contents of that
memorandum and given the opportunity to make representations in answer.
Meaning of Ultra Vires:
o (1) in the narrowest sense:
§ acting outside of the terms of the legal rules
o (2) in a wider sense:
§ illegality, irrationality and procedural impropriety
o (3) an even wider sense:
§ any form of abuse of powers
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Error of Law
A. Steps of Admin Power & Possibility of JR
o (1) Law
§ à illegality
o (2) Fact
§ à illegality
o (3) Application
§ à illegality
§ à irrationality
o (4) Procedure
§ à procedural impropriety
B. Types of error of law
1. Decisions without legal basis
o (a) Decisions based on an unconstitutional law
o (b) Decisions based on a subsidiary legislation which conflicted with the primary statute
§ case: Pang Tak Kwai v Commissioner of Correctional Services and Another
• Fact: a technical instructor in the Correctional Services Department was charged of
the offence of possession of prohibited articles in prison à dismissal, according to
Rule 255B of the Prison Rules, authorized to legislate under s.25 of Prison
Ordinance.
• Held: Rule 225B clearly cannot be used to complete what is expressly left out in s.25
of Prison Ordinance à conflict with the primary statute.
2. Decisions contravened the terms of legal authority
o The statutory conditions for exercising the power has not been satisfied
o Case: Kwan Shung King v Housing Appeal Tribunal
§ Fact: The Claimant’s son’s friend was convicted of the offence of permitting a place to be
used (by as a gambling establishment à claimant was requested to quit by the Housing
Authority, even though he argued no knowledge of the gambling establishment.
§ Held: Wrong interpretation of the meaning of “servant” which does not cover a friend, visitor
or relative
3. Decisions exceeded the scope of legal authority granted under a statute
o The statutory conditions are satisfied, but the authority exercises the power outside the scope
o Case: Lam Siu Tai v The Commissioner of Correctional Services and the Secretary of Civil Service
§ Fact: a prison officer was found guilty of an offence under the Prison Rules. Punishment was
imposed on by the Commissioner
§ Held: Punishment should be awarded by the Superintendent, not the Commissioner, as the
Prison Rules requires.
C. Jurisdictional error
o Jurisdictional Error (Reviewable):
§ Failure to pass the condition precedent 先決條件 in making the decision
• Condition precedent:
o something to be satisfied before making the decisions
o e.g. conditions of offence in statute
§ If the decision maker makes a decision outside the limits of the functions and powers
conferred on him or does something which he lacks power to do.
• Whether the error would bring the authority outside the scope of power
o May look at the consequence of the error
o
Non-jurisdictional Error (NOT reviewableà valid decision):
§ Incorrectly deciding something which the decision maker is authorized to decide
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D. Reviewability of Non-JE
o Pre-Anisminic
§ Non-jurisdictional error à not reviewable
§ Case: Chang Wing Tai, in application for leave to apply for JR
• Fact: Authorized by Overseas Trust Bank Acquisition Ordinance, the Financial
Secretary made the Overseas Trust Bank Regulations which established a Tribunal.
The Tribunal has power to make calculation on compensation payable and shall
disregard the possibility of any claim by the company against any director, servant,
etc (Sch3(a)(v)). The claimant challenged that Sch3(a)(v) is ultra vires, contrary to
the stated purpose of the Ordinance. The Tribunal decided NOT ultra vires.
à claimant JR the decision of the Tribunal!!
• Held: the Tribunal did not exceed it jurisdiction when making the determination that
the Sch3(a)(v) was not ultra vires à intra vires, irrelevant to consider whether it was
right or wrong.
§ Exception: Error of Law on the Face of the Record (No longer needed after Anisminic)
• Case: R v Northumberland Compensation
o Fact: a clerk of the West Hospital was dismissed and a fewer amount of
compensation was given.
o Held:
(1) the court has an inherent jurisdiction to control all inferior tribunal in a
supervisory capacity: not only to seeing that the inferior tribunals keep
within their jurisdiction, but also to seeing that they observe the law
(2) Certiorari is available to quash a decision for error of law if the error
appears on the fact of the record.
§ Record: must contain at least the document which initiates the
proceedings; the pleadings and the adjudication
o
Anisminic case
§ Fact:
• The Egyptian Government sequestrated a mine in Egypt and compensated to the
British Government. The mine was sold by a British national to an Egyptian
Company who tried to seek compensation from British Government under Foreign
Compensation (Egypt) Order under Foreign Compensation Act. In the order, it was
stipulated that an applicant has to be the owner of the property or is successor in title
and the person referred to were British nationals.
• There was an exclusion clause in the Act: “the determination by the commission of
any application made to them under this Act shall not be called in question in any
court of law”.
§ Issue 1: whether the error committed intra-vires can be reviewable
• Lord Reid: Authority had jurisdiction to enter the inquiry, but has done or failed to
do something in the course of the inquiry (by misconstruing the provision), which is
of such a nature that its decision is a nullity
o E.g. given its discretion in bad faith
o Made a decision which it had no power to make
o Failed in the course of the inquiry to comply with the requirements of natural
justice
• No more distinction between jurisdictional and non jurisdictional error of law
§ Issue 2: Effectiveness of the exclusion clause in excluding the decision to be called by the
court
• Lord Reid: Provision ousting the ordinary jurisdiction of the court must be construed
strictly
o Such a provision protests every determination which is not a nullity
§ Implication of Anisminic:
• (1) every error of law goes to jurisdiction
• (2) exclusion clause cannot exclude court’s supervisory jurisdiction over
jurisdictional error (i.e. every error of law)
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o
Pearlman v Keepers and governors of Harrow School
§ Lord Denning: the distinction between an error which entails absence of jurisdiction and an
error made within the jurisdiction is very fine
• So fine indeed that it is rapidly being eroded
• This distinction should now be discarded.
§ However, Lord Denning’s suggestion was not accepted by their lordships in S.E. Asia Fire
Bricks v Non-Mentallic Products
o
Re Racal Communication Ltd
§ Lord Diplock: for administrative tribunals and authorities, the old distinction between error
of law that went to jurisdiction and errors of law that did not, was for practical purposes
abolished.
§ In the case of inferior courts where the decision is made final and conclusive by the statute,
this may involve the survival of those subtle distinctions.
o
Position in HK
§ Courts originally refused to accept the abolishment of the distinction in Chang Wing
Tai(1987) and Jill Spruce v University of Hong Kong(1991).
§ Thai Muoi v Hong Kong Housing Authority (1999)
• Fact:
o Muoi’s husband was found to have 2 packets of raw opium in his bag. 2
further packets of opium were found inside his bedroom. He was convicted
of possession of dangerous drugs. Housing Authority issued a notice to quit,
ordered Muoi to quit the public housing estate.
o Limiting provision in the Housing Ordinance: s.19(3) “no court shall have
jurisdiction to hear any application for relief by or on behalf of a person
whose lease has been terminated”
• Held:
o Housing Authority has committed an error of law by misinterpreted the
meaning of “permit”. Mere knowledge or that she could reasonably have
foreseen does not mean that Muoi had permitted the flat to be used for such
purpose.
o Permit = has knowledge or reasonable foresee + abstained from
taking reasonable steps to prevent it when it was within her power to
do
• Court adopted Anisminic
o Confirmed that the distinction was abolished for practical purposes
o The right of the court to supervise the decisions of the executive is always
zealously guarded against
• Court: consider the Limitation provision s.19(3)
o It is not clear enough to override the presumption of the legislative intent that
decisions by the executive, the tribunal or other official are justiciable by way
of judicial review.
§ Also confirmed in Gurung Bahadur v Director of Immigration (2001).
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C. Statutory interpretation
1. Interpretation and General Clauses Ordinance (Cap 1)
Where any word or expression is defined in any Ordinance such definition shall extend to the
Section 5
grammatical variations and cognate expressions of such word or expression.
Section 7
Section
10B
Section 19
Section 38
Section 39
Section 40
Section 41
Section 43
Masculine gender includes the feminine gender; singular includes the plural and plural includes the
singular.
Where a comparison of the authentic texts (Chinese and English) of an Ordinance discloses a
difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve,
the meaning which best reconciles the texts, having regard to the object and purposes of the
Ordinance, shall be adopted.
An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal
construction and interpretation as will best ensure the attainment of the object of the Ordinance
according to its true intent, meaning and spirit.
Where any Ordinance confers power upon any person to(a) make any subsidiary legislation;
(b) make any instrument; or
(c) exercise any power,
and the Ordinance conferring the power prescribes conditions, subject to the observance,
performance or existence of which any such power may be exercised, such conditions shall be
presumed to have been duly fulfilled if in the subsidiary legislation, the instrument or the document
evidencing the exercise of the power there is a statement that the subsidiary legislation or instrument
is made, or the power exercised, in exercise of, or in pursuance of, the power conferred by such
Ordinance, or a statement to the like effect.
Where any Ordinance confers any power or imposes any duty, then the power may be exercised and
the duty shall be performed from time to time as occasion requires.
Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing,
all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person
to do or enforce the doing of the act or thing.
Where any Ordinance confers power to grant a licence, Government lease, permit, authority,
approval or exemption, such power shall include power to impose reasonable conditions subject to
which such licence, Government lease, permit, authority, approval or exemption may be granted.
Where any Ordinance confers power to approve any person or thing, such power shall include power
to withdraw approval
Where any Ordinance confers power upon any person to issue, grant, give or renew any licence,
Government lease, authority, approval, exemption or permit, the person so empowered shall have a
discretion either to issue, grant, give or renew or to refuse to issue, grant, give or renew such licence,
Government lease, authority, approval, exemption
or permit.
Where any Ordinance confers powers or imposes duties upon a specified public officer,
such public officer may delegate any other public officer or the person for the time being holding any
office designated by him to exercise such powers or perform such duties on his behalf, and
thereupon, or from the date specified by such specified public officer, the person delegated shall have
and may exercise such powers and perform such duties.
However, this section does not authorize a specified public officer to delegate any person to make
subsidiary legislation or to hear any appeal.
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2. Common law principles
o (1) Rule of literal construction
§ plain meaning
§ The Golden Rule:
• If the adherence to the literal wording of the statute would create an absurdity, the
wording may be modified to the extent necessary to avoid that absurdity
§ Mischief Rule
• Consider for what “mischief” or problem the statute was designed to provide a
remedy or where the meaning of the statute is uncertain to adopt as afar as possible an
interpretation consistent with the object of the statute
• Pepper v Hart
o Use of legislative materials:
o (a) Legislation is ambiguous or obscure or led to absurdity;
o (b)the material relied upon consisted of one or more statements by a minister
or other promoter of the Bill together if necessary to understand such
statements and their effect;
o (c) the statements relied upon are clear.
o
o
o
(2) Approaches of Statutory Interpretation (Read PPT)
§ Liberal approach
§ Purposive approach
Read within the context
Choose the suitable approach that favours your clients
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Error of Fact
A. General
- Distinction between error of fact within jurisdictional and outside jurisdiction is maintained (Tatiana Chinko v
Director of Immigration)
- Secretary of State for Education and Science v Metropolitan Borough Council of Tameside
o Lord Wilberforce:
§ If a judgment requires, before it can be made, the existence of some facts, then, although the
evaluation of those facts is for the Secretary of State alone, the court must enquire
• (1) whether those facts exist, and have been taken into account;
• (2) whether the judgment has been made upon a proper self direction as to those facts
• (3) whether the judgment has not been made upon other facts which ought not to have
been taken into account.
B. Types of error of fact
1. Decisions based on a factual condition under statute but the fact was proved to be false
o Iqbal and others v Director of Immigration
§ Fact: Iqbal entered HK illegally and filed a refugee claim and torture claim. He had been
found working at places of employment. He was prosecuted for taking up illegal employment.
§ Held: Prosecution should only be based on a finding of illegal employment
• Yet the applicant’s employment was legal
• Hence false prosecution
2. Decision based on material fact that was proved to be false
o The mistaken fact was relevant to the decision
§ A mistake of fact giving rise to unfairness
o Smart Gain Investments v Town Planning Board and Another
§ Fact: Town Planning Board set the draft OZP, major part of the area is zoned Conservation
Area. SG owns sites in the area. Town Planning Board rejected SG’s objection against the
zoning of his land, reason: the sites mainly comprise wooded slopes and river valley, which
form a very significant and attractive landscape in the area. SG provided evidence that the
sites were partially covered by low quality vegetation on areas which were previously
cultivated land.
§ Held:
• the failure to make sufficient inquiry on a material issue flaws the Board’s decision
• a mistake of fact giving rise to unfairness is a valid ground of challenge
• fresh evidence must be admissible in appropriate circumstances to demonstrate to
the court that the tribunal below has made a mistake on the facts
o Distinguishing from factual condition
§ If factual condition is satisfied, then authority may exercise the power
§ Mistake of material fact will occur during the process of exercising the power and making the
decision
3. No evidence rule
o Decisions on the basis of evidence that was proved to be not existing
o R v Director of Immigration and the Refugee Status Review Board, ex p Do Giau and Others
§ Fact: G is a Vietnamese national pending a decision whether to grant him permission to
remain in HK as a refugee. During screening process, there was mistranslation of the
applicant’s evidence (“worked in state-owned factory”)
§ Held: the decision was unreasonable in the Wednesbury sense
4. Decisions based on insufficient or unsubstantial evidence
o Khawaja v Secretary of State for the Home Department
§ Fact: Insufficient evidence to prove that the applicant obtained his entry by deception
§ Held:
• The court’s investigation of the facts is of a supervisory character and not by way of
appeal
• It should appraise the quality of the evidence and decide whether that justifies the
conclusion reached
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•
•
•
o
An allegation that he has done so being of a serious character requires a
corresponding degree of satisfaction as to the evidence.
If the court is not satisfied with any part of the evidence it may remit the matter for
reconsideration of itself receive further evidence.
It should quash the decision where the evidence was not such as the authorities
should have relied on or where the evidence received does not justify the decision
reached.
A Solicitor v The Law Society of Hong Kong
§ The more serious the act alleged, the more inherently improbable it is regarded à the more
compelling will be the evidence needed
5. Decisions based on evidence that was not properly handled or was misunderstood
o Pun Tai Sung v Immigration Tribunal and Director of Immigration
§ Held:
• Failure to consider relevant evidence: the reply from GPPSB
• Important evidence being handled improperly: there was some confusion about or a
misunderstanding of the evidence with regard to the Household Registers. The
argument that the alterations to the Household Registers were caused by the applicant
is unwarranted à no such evidence or information before the Tribunal à no proper
evidential basis
6. Failure to considered relevant evidence
o See Pun Tai Sung above
7. Decisions based on factual assumption, but fresh evidence that can prove the falsity of the
assumption was not accepted
o Building Authority v Appeal Tribunal (Building)
§ Fact: Building Authority found Antonia House to be a building with 2 staircases and found
the usable floor area be 4500 sq.ft. Later, BA’s expert report showed that the total usable
floor area is 2434 sq.ft, which is less than 2500 sq.ft permitted for a single staircase building.
§ Held:
• The tribunal was mistaken as to the usable floor area and the mistake was material to
its determination.
• The tribunal’s mistake constitutes a ground for judicially reviewing the decision.
o E v Secretary of State for the Home Department:
§ Fact: E claimed asylum and claimed that if he return to Egypt, he would be at risk of
detention and torture because he was a sympathizer with the Muslim Brotherhood and
because his family was involved in its activities. Immigration Appeal Tribunal refused E’s
application based on factual assumption that membership of the Muslim Brotherhood would
not render him liable to prosecution. E subsequently submitted 2 reports revealing that
membership of Muslim Brotherhood would lead to a serious risk of detention and torture. The
tribunal refused again without considering the new evidence.
§ Held:
• New evidence may emerge which undermines the basis of the conclusions reached at
the hearing. It cannot be automatically excluded, where justice requires it to be taken
into account.
• The actual reasons given for refusing to consider the new evidence were
erroneous in law.
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C. Distinguishing error of fact and error of law
1. Significance
o The court is more reluctant to review error of fact
o Every error of law is jurisdictional
2. Mixture of law and fact?
o Tse Cho, in an application for orders of certiorari and prohibition
§ Fact: Licensee of dance hall was found not in control of the business of the hall. Decision that
it has contravene Regulation 78(1) of Miscellaneous Licences Regulations that prohibits
transfer, lend or hire of licence to any person.
§ Judges are of different opinions in categorizing the error
§ But of same opinion that not running the dance hall does not constitute a transfer of licensee
§ Two possibilities
• Misinterpretation of the word “transfer”, then it would be error of law
• Problem arises when applying the law to the fact (mixture/error of fact)
3. English court recognizes a mistake of fact giving rise to unfairness would be an error of law
o E v Secretary of State for the Home Department
§ Times has come to accept that a mistake of fact giving rise to unfairness is a separate head of
challenge in an appeal on a point of law
§ The ordinary requirements for a finding of unfairness are apparent:
§ First, there must have been a mistake as to an existing fact, including a mistake as to the
availability of evidence on a particular matter.
§ Secondly, the fact or evidence must have been ‘established’, in the sense that it was
uncontentious and objectively verifiable.
§ Thirdly, the appellant (or his advisers) must not been have been responsible for the
mistake.
§ Fourthly, the mistake must have played a material (not necessarily decisive) part in the
Tribunal’s reasoning.
o But this has not be recognized in HK
D. Proper role of the court in reviewing law and fact
1. Limited review approach
o So long as the administrator decides the question assigned to it by law, its relative opinion will bind,
subject to appeal
2. Extensive review approach
o The court would set the boundary, not the administrator
3. Rational review approach (Recommended!!)
o The question for the court was whether the administrator’s answer was based on permissible
construction of the statute.
o The reviewing court might uphold the agency finding even though it was not the interpretation which
the court itself would have adopted. Court may not substitute its own opinion for a reasonable
interpretation made by the administrator
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Illegality
A. General
- Council for Civil Service Unions v Minister for the Civil Service
o three heads of the grounds of by judicial review:
§ (1) ‘illegality’,
§ (2) ‘irrationality’ and
§ (3) ‘procedural impropriety’.
§ That is not to say that further development on a case by case basis may not in course of time
add further grounds
B. Types of Illegality
1. Inconsistency with Basic Law
o Ng Ka Ling v Director of Immigration
§ the courts have a duty to enforce and interpret that law.
§ They undoubtedly have the jurisdiction to examine whether legislation enacted by the
legislature of the Region or acts of the executive authorities of the Region are consistent with
the Basic Law and, if found to be inconsistent, to hold them to be invalid
§ The exercise of this jurisdiction is a matter of obligation, not of discretion that if
inconsistency is established, the courts are bound to hold that a law or executive act is
invalid at least to the extent of the inconsistency.
2. Simple Ultra Vires
o Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority
§ When the repository of a power fails to comply with the conditions which govern its
exercise à it is the function and duty of the court to quash the purported exercise of the
power unless there are substantial grounds warranting the refusal of relief, but the grounds on
which relief might be refused when the court finds an excess of power are ‘very narrow’
o
Padfield v Minister of Agriculture
§ but if the [decision-maker], by reason of his having misconstrued the Act or for any other
reason, so uses his discretion as to thwart or run counter to the policy and objects of the
Act, then our law would be very defective if persons aggrieved were not entitled to the
protection of the court.
3. Abuse of Discretion
o Abuse of Discretion:
§ (1) where the relevant legislation permits the public body to use its discretion to make a
particular decision
§ (2) but the way in which the public body exercises its power breaches relevant legal
principles
o
(1) Fettering Discretion
§ General rule:
• Birkdale District Electricity Supply Co. Ltd. v Southport Corporation
if a person or public body is entrusted by Parliament with discretionary powers to be
exercised for the public purpose, those persons or bodies cannot divest themselves of
those powers and duties A public authority must not abdicate its discretion. When
given a discretionary power, it must use it
§
Situation where there is a policy:
• British Oxygen Company Ltd v Minister of Technology
o Fact: The plaintiff company manufactured and traded in industrial and
medical gases, which require special containers for delivery. The Minister
administered grants to companies seeking investments. The Minister had a
policy of not awarding grants for the purchase of equipment which costs less
than 25 pounds per item. Because each special container costs only 20
pounds, the Minister decided against awarding a grant to the company
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o
Held:
§
§
§
•
§
o
the general rule is that anyone who has to exercise a statutory
discretion must not ‘shut his ears to an application’”.
There may be cases where an officer or authority ought to listen to a
substantial argument reasonably presented urging a change of
policy. What the authority must not do is to refuse to listen at all.
***If the authority has developed a rule to deal with particular
matters, it should always be willing to listen to anyone with
something new to say
R v Secretary of State for the Home Department, ex parte Venables
o If the policy adopted is such as to preclude the [decision-maker] from
departing from the policy or from taking into account circumstances which
are relevant to the particular case in relation to which the discretion is being
exercised. If such an inflexible and invariable policy is adopted, both the
policy and the decisions taken pursuant to it will be unlawful.
How should the discretion be exercised
• Ko Siu Luen, Louisa & Ors v Appeal Tribunal (Building)
o Held:
o The Tribunal had wide and unfettered statutory discretion to decide the
matter on the merits. Yet, the Tribunal behaved as if the appeal before it was
judicial review and thus unlawfully fettered its own discretion.
o It must be remembered that the Tribunal is not hearing the appeals as if
they were a judicial review application. It is hearing on appeal the matters
de novo on merits. In the premises, the Tribunal was wrong in law to import
the principle of Wednesbury unreasonableness
o The Tribunal had wrongly fettered its own discretion, it had also failed to or
to properly consider the new evidence adduced.
o à remit the matter back to the Tribunal to reconsider exercising its
discretion afresh and independently on merits with all evidence adduced
(2) Unlawful Delegation
§ General rule:
• Barnard v National Docket Labour Board:
o When a public decision-maker is granted statutory powers, it must exercise
those powers and not delegate them to anyone else, in order to respect the
delegator’s intention.
§
Test: to interpret the language of provision:
• Chiu Tat Cheong v AG
o Where no express language permitting the delegation in question: a court will
be slow to infer a power to delegate.
o Duty of court: extract the true meaning of a particular provision from the
language used, and anything that is necessarily implied from the words,
having regard to the context, and construing the instrument as a whole,
must be given effect to as if it were part of the provision.
§
Situation of delegation to officials by minister:
• Carltona Ltd v Commissioner of Works
o Fact:
§ During war time, the plaintiff factory owners received an order
requisitioning the factory. The plaintiffs contended that the authority
to whom the power to make the order had been granted by statute,
the Commissioner for Works, had not given their mind to making the
order. Rather the order had been issued by an assistant secretary
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o
Held:
§
§
§
§
•
§
o
It cannot be supposed that this regulation meant that in each case, the
minister in person should direct his mind to the matter. The duties
imposed upon ministers and powers given to ministers are normally
exercised under the authority of the minister by responsible officials.
Public business could not be carried on if that were not the case.
Constitutionally, the decision of such an official is the decision of the
minister who is responsible.
***the whole system of departmental organization and
administration is based on the view that ministers will see that
important duties are committed to experienced officials.
Bushell v Secretary of State for the Environment
o Discretion in making administrative decisions is conferred upon a minister,
not as an individual but as the holder of an office, in which he will have
the collective knowledge, experience and expertise of all those who serve the
Crown in the department.
o The collective knowledge and expertise of the civil servants in the
department is to be treated as the minister’s own knowledge and expertise.
o Accepted in HK (Ch’ng Poh v The CE of HKSAR)
The need to consider all the relevant factors
• Michael Rowse v Secretary for the Civil Service
o Fact: CE delegated his power to hear the appeal to the Chief Secretary.
o Held:
§ (1) I do not read s.20(1) as implying any sort of power to delegate.
The provision does not more than offer guidance as to how CE may
exercise his administrative discretion
§ (2) recognized that there are practical reasons for transfer of
responsibility, especially by way of delegation, in Govt.
§ (3) Whether there was an implied power to delegate à a number of
factors need to be considered:
• (i) what is delegated is not an ancillary or peripheral
power, on that is incidental à it is a power to determine
appeals by civil servants
• (ii) the power relates to matters of discipline which can
carry consequences of real seriousness à power of
importance
• (iii) the power goes to the determination of disciplinary
appeals à has many of the features of a judicial review:
Special tribunals and public bodies exercising functions
broadly analogous to the judicial are precluded from
delegating their powers unless there is express authority to
that effect.
§ à CE acted outside of the powers given to him
(3) Improper Purpose
§ Interpreting the purpose:
• R v Environment Secretary, ex parte Spath Home Ltd
o The purpose has to be inferred from the language used, read in its
statutory context and having regard to any aid to interpretation which
assists in the particular case.
§
What constitutes an improper purpose:
• Fok Ho Chiu v Chinese Temples Committee
o So long as the decision does not ignore or frustrate the objects and purposes
of the Ordinance, it cannot be described as being unlawful or illegal.
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o
§
Where multi-purposes from an act
• Keen Lloyd Holding Ltd v Commissioner of Customs and Excise
o Fact:
§ Operation by HK Customs and PRC Customs for exchange of
intelligence in the investigation into suspected smuggling.
§ Permissible purpose: to further investigation in HK
§ Impermissible purpose: to further investigation in PRC
o Held:
§ The general rule is that the action will be lawful if the permitted
purpose is the true and dominant purpose behind the act, even
though some secondary or incidental advantage may be gained for
some purpose which is impermissible.
§ à the impermissible purpose was only incidental consideration and
the permissible purpose far outweighed the impermissible purpose
§
Wheeler v Leicester City Council
• Fact: sports club banned from using sports facilities due to their relationship with
South Africa during apartheid.
• Held:
o No doubt that the council intended to punish and have punished the club
o à the council could not properly seek to use its statutory powers of
management for the purpose of punishing the club
(4) Rule of Relevancy
§ i.e. Failure to take into account relevant considerations/ failure in taking into account
irrelevant consideration
§ What will be considered to be a relevant consideration
• Associated Provincial Picture Houses Ltd v Wednesbury Corporation
o What will be considered to be a relevant consideration or an irrelevant
consideration will often depend on the purpose of the power-conferring
Ordinance.
•
§
Tesco Stores Ltd v Secretary of State for Environment
o (1) It is for the courts to decide what is a relevant consideration.
o (2) If a decision-maker wrongly takes the view that some consideration is not
relevant and disregard it, his decision cannot stand and he must be required
to think again.
o (3) But it is entirely for the decision maker to attribute to the relevant
considerations such weight as he thinks it. Courts will not interfere unless he
has acted unreasonably in the Wednesbury sense.
When can this be a ground of review
• Lau Kong Yung v Director of Immigration
o The ground of failure to take into account a relevant consideration can only
be made out if the decision maker has failed to take into account a
consideration which he is bound to take into account in making that
decision.
o What factors he is bound to take into account is determined by construing
the statute conferring the power.
o If an administrator misconstrues a statute and asks himself the wrong
question or fails to ask himself the right question, the court can properly
intervene and quash his decision on the ground of illegality.
§ But a vague statement pointing to “all relevant matters” is not
enough
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§
§
Application
Short v Poole Corporation:
• Fact: Red-haired teacher dismissed because she had red hair
• Held:
o (1) it is the local authority’s duty to decide on the correctness of one view
over another (i.e. the merits). Court cannot interfere.
o (2) the court is entitled to investigate the action of the local authority with a
view to seeing whether it has taken account matters which it ought not to take
into account, or has refused to take into account matters which it ought to
take into account.
o à the authority was justified in taking into account the well-being and
physical and moral health of children as a relevant consideration.
§
Mandy Tam Heung Man v The Hong Kong Institute of Certified Public Accountants
• Fact: the Institute took into an irrelevant consideration into account when deciding to
prevent distribution of a newsletter of a member of LegCo.
• Held:
o The Institute had erroneously taken into account its difference of opinion
with the Legislator on matter of constitutional reform
o S.18(1) PAO sets out the powers of the Council: do anything necessary for
the better carrying out of the objects of the Institute…publish periodicals,
booklets or other written material…as the council thinks fit.
o The council face with public criticism from time to time, but it is not open to
the council to punish the critic by some other sanction, such as refusal to
distribute the newsletter. à the council has acted to punish her for expressing
those political and personal opinions à council had regard to an irrelevant
consideration in reaching its decision
§
Z v Director of Legal Aid & Anor
• Fact: when declining legal aid for appeal against conviction, the officer had failed to
apply the Widgery Criteria, a relevant consideration under HKBORO
• Held: the decision quashed
o (1) failed to consider Widgery Criteria
o (2) failed to consider that Z, being a refugee awaiting resettlement, the
conviction for indecent assault would make it impossible for him to be
resettled in any place in the world
o à failure to take into account relevant consideration
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Irrationality
A. General
- Administrative discretion
o The very concept of administrative discretion involves a right to choose between more than one
possible course of action upon which there is room for reasonable people to hold differing opinions as
to which is to be preferred (Secretary of State for Education and Service v Tameside Metropolitan
Borough Council)
-
Unconstrained discretion risks arbitrariness:
o indifference to the justifiability of purposes and/or means, which in turn will lead to
§ (1) malicious and/or unreasonable suppression of individual freedoms, and/or
§ (II) reduction in predictability of government behaviour
-
Limitation of discretionary power:
o discretionary powers “ought to be limited and bound with the rule of reason and Law.” (Rooke’s
Case)
o he asserted King’s Bench’s jurisdiction “to correct errors’ and “misdemeanours extra-judicial, tending
to ... any manner of misgovernment”. (Bagg’s Case)
o Courts ought to respect “the judgment and discretion” entrusted to administrative authority;
Authorities ought to be fair, candid, and unprejudiced; not arbitrary, capricious, or biased; much less,
warped by resentment, or personal dislike. (R v Askew)
-
Administrative Law’s approach:
o Administrative law embodies an inherent tension between two forces pulling in opposite directions
§ On the one hand, the law must facilitate administrative discretion to enable government
action.
§ On the other hand, the law must constrain administrative discretion to prevent government
irrationality and arbitrariness
B. Irrationality Review
- General
o (1) when conducting irrationality review, the courts are not saying that “this is a bad decision and we
disagree with it.
§ Rather, “this is such an irrational decision that cannot be what the Legislative Council had
intended when it granted this power. Therefore it is ultra vires and unlawful.”
o (2) When conducting irrationality review, the courts can seldom derive guidance from Ordinances on
reviewing the reasonableness of administrative decision-making
§ since legislatures rarely spell out that the administrative power is to be exercised in good faith
and within the bounds of rationality
1. Wednesbury Unreasonableness
- (1) Using Wednesbury Unreasonableness as a Separate Ground
o 2-part test: (Associated Provincial Picture House Ltd v Wednesbury Corporation)
§ (i) whether or not they have taken into account matters they ought not to have taken into
account, or have refused to take into account matters which they ought to take into account
§ (ii) whether the authority has
• “come to a conclusion so unreasonable that no reasonable authority could ever
have come to it” /
• “so absurd that no sensible person could ever dream that it lay within the power of
the authority” /
• “so unreasonable that it might almost be described as being done in bad faith”
•
Zestra Asia Ltd v Commissioner for Transport
o a decision is irrational if
§ (i) it is unreasoned / the given reason are simply unintelligible
§ (ii) lacking in ostensible logic or comprehensible justification
• e.g. made in arbitrary fashion, by spinning a coin or
consulting an astrologer
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o
less extreme examples of irrational decision:
§ (i) absence of logical connection between the evidence and the
ostensible reasons for the decision
§ (ii) the reasons display no adequate justification for the decision
§ (iii) there is absence of evidence in support of the decision
•
CCSU v Minister for the Civil Service
o An irrational decision is one that is “so outrageous in its defiance of logic or
of accepted moral standards that no sensible person who had applied his
mind to the question to be decided would have arrived at it”.
•
Lau Kong Yung
o It is not for the courts to say how those responsibilities should be discharged.
It is only where the administrator has acted beyond the range of responses
reasonably open to him under the statutory scheme that the court’s power of
intervention under the statute can properly be invoked.
o
NOT to judge the merits of policy
§ Chim Shing Chung v Commissioner of Correctional Services
• Fact: prisoners engaged in illegal gambling. The authority decided to remove horse
racing supplements from newspaper on racing days.
• Trial judge: “this censorship is totally ineffective” à irrational
• Appellate court:
o The commissioner was not irrational
o The trial judge had stepped into the Commissioner’s shoes to judge the
merits of the policy. The casual connection between the policy and the
diminution of gambling is a matter of value judgment.
o Effectiveness of policy is a matter of degree à matter for the authority’s
judgment, not the court’s à court need not consider the success of failure of
policies
o
Disagreement of Government bodies with court on what are relevant circumstances
§ Andrew Brine v Liquor Licensing Board
• Government bodies may reasonably disagree on what are relevant circumstances to
into account and so come to opposing conclusions
• The possibility of disagreement over relevant factor & possibility of different
assessments of particular factors à NOT by themselves render a decision irrational
o
Court NOT as an appellate jurisdiction
§ Zestra Asia Ltd v Commissioner for Transport
• A company engaged in the sale of a topical arousal oil for females called “Zestra”,
applied for a personalised vehicle registration mark in the form of “Zestra” à
rejected by Commissioner for Transport
• Court:
o In JR proceedings, the court exercises a supervisory and not an appellate
jurisdiction
o Recognized that a high standard must be achieved before Wednesbury
unreasonable ground can succeed
o In the case:
§ (i) the Commissioner had not shown an objective and rational
justification for the decision à Wednesbury unreasonable
• “Zestra” was an invented word, not that as perceived by
Commissioner to be a sex product or product associated with
unsafe sex
§ (ii) no cogent and objective evidence to support that open reference
to sexual intercourse was likely to be offensive to a reasonable
person, merely because the local population was predominantly
Chinese and conservative
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•
-
no information before Commissioner as to how well know
the product was à anyone not aware of the product would
not understand its connotation or association with sexual
intercourse
(2) Using Wednesbury Unreasonableness to assist other Ground
o Boddington v. British Transport Police
§ Categorisation of types of assists in an orderly exposition of the principles underlying our
developing public law. But these are not water tight compartments because the various
grounds for judicial review run together.
§ E.g. the exercise of a power for an improper purpose (i.e. illegality) may involve taking
irrelevant considerations into account, or ignoring relevant considerations à may lead to an
irrational result.
2. Common Law Proportionality (ONLY for human right cases)
- Chu Ping Tak v Commissioner of Police
o The court essentially plays a supervisory role over the decision of the tribunal below
§ It does not exercise an appellate role
§ UNLESS the sentence or punishment is so out of proportion to the offence in question, as to
be perverse or unduly oppressive
-
Hysan Development Co Ltd v Town Planning Board
o Test: is the challenged act of punishment so out of proportion to the offence in question, as to be
perverse or unduly oppressive?
§ (i) whether the decision pursues a legitimate aim?
§ (ii) whether it is rationally connected with advancing that aim?
§ (iii) Whether the measure is no more than necessary for that purpose?
§ (iv) whether pursuit of the societal interests results in an unacceptably harsh burden on the
individual?
3. Sliding Scale of JR of Irrationality
- MA v Director of Immigration
o The Wednesbury unreasonableness test = orthodox approach of JR
o It is now firmly established that the court must be entitled to subject an administrative decision to
the more vigorous examination
§ à to ensure to it is in no way flawed, according to the gravity of the issue which the decision
determines
§ e.g. the individual’s right to life, the most fundamental of all human rights à most anxious
scrutiny
o There is a sort of a sliding scale in terms of the intensity of review:
§ The more substantial the interference with human rights, the more the court will require by
justification before it is satisfied that the decision is reasonable
o Categories of type of review:
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-
-
(1) Anxious & Heightened Scrutiny
o Steps:
§ (i) P must first show that the challenged administrative act lies within the purview of anxious
scrutiny and not Wednesbury irrationality
§ (ii) P must then show that the challenged act is unreasonable
• instead of extremely unreasonable in Wednesbury irrationality
§ (iii) the burden of proof next lies on D to produce a cogent justification that suffices to rebut
the alleged unreasonableness to the court’s satisfaction
o
Justification for anxious & heightened scrutiny
§ R v Secretary of State for the Home Department, ex p Bugdaycay
• the court must be entitled to subject an administrative decision to the more vigorous
examination
• à to ensure to it is in no way flawed, according to the gravity of the issue which the
decision determines
§ A & Ors, R v Lord Saville of Newdigate & Ors
• what is important to note is that when a fundamental right such as the right to life is
engaged, the options available to the reasonable decision maker are curtailed
• curtailed because it is unreasonable to reach of decision which contravenes or could
contravene human rights
o unless there are sufficiently significant countervailing considerations
o
Situations where anxious scrutiny is required: Harbour reclamation
§ Society for the Protection of the Harbour Ltd v CE in Council
• Fact: applicants challenging decisions made by Govt concerning Central District
(Extension) Outline Zoning Plan
• Held:
o When fundamental human rights are involved, classic Wednesbury test is not
appropriate
§ The greater the degree of interference with a fundamental right, the
more the court will require by way of justification before it is
satisfied that the decision is reasonable in the public law sense
o The Harbour Ordinance does not enshrine a fundamental human right that the
harbour being a natural heritage of all HK people
§ à its preservation was therefore to be afforded a high propriety
§ à something more rigorous than the standard Wednesbury test is
required
o court is restricted to determine, with the employment of heightened scrutiny,
the single issue of whether the authority was acting lawfully
§ à in the circumstances, the CE in Council had not stepped outside of
the border of his executive discretion
(2) Light Scrutiny / Super-Wednesbury
o Justification for Light Scrutiny
§ C v Director of Immigration & United Nations High Commissioner for Refugees
• JR is subject to a number of limitations
• The separation of powers may deny jurisdiction to the courts when the function
involved is exclusively the province of the legislature or the executive.
o E.g. matters of economic or social policy
o E.g. issue which have a political character and a high political content where
a political rather than a legal solution may be called for
• à courts are not institutionally equipped or competent to deal with the issues
o
Requirements for such political/economic or social policies to be subject to JR:
§ R v Secretary of State for the Environment ex p Nottinghamshire CC
• Decisions on a public finance approved by the House of Commons will never be
quashed except in the most extreme situations which seldom occur
• The most extreme situations that attract JR:
o (i) had acted in bad faith; OR
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(ii) for an improper motive; OR
(iii) Manifestly absurd: he must have taken leave of his senses OR the
policy exhibits a pattern of perversity or an absurdity of such proportions.
E.g. if the formulation of national economic policy have been done in good faith
within the four corners of the Act à court could not condemn the policy as
unreasonable
o
o
•
o
Example: A decision of political nature
§ R v Secretary of State for Education
• fact: the plaintiff local authorities planned to rebuild schools according to the Labour
Govt’s Building schools for the Future Programme. Later Govt announced
cancellation of the Programme and offered a cut-off date. P alleged that the Govt’s
choice of the cut-off date was irrational as it affected their rebuilding plan
• Held:
o The case concerns a very major decision with a patently political and heavy
macroeconomic content, made at the highest level in the immediate aftermath
of a general election
o The Govt are politically answerable for the decisions they have taken. Their
decisions may or may not withstand political scrutiny and challenge
o No inherent irrationality about them à decline to examine their irrationality
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Topic 6: PROCEDURAL IMPROPRIETY
Introduction
Ÿ
CCSU case [1985]:
−
‘Procedural impropriety’ includes
„ (1) Failure to observe basic rules of natural justice or failure to act with procedural fairness towards
the person who will be affected by the decision
„ (2) Failure to observe procedural rules expressly laid down in the legislative instrument
Ÿ
Why procedural fairness important?
−
(1) Not only concerned with substantive justice but also procedural side
−
(2) Procedural rule does not directly determine the outcome of the decisions; but for most of the times
better procedural rules (fair, transparent and rational), the substantive outcome is usually better; in
aggregate the rule of law is secured
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Grounds of JR:
Ÿ
Exam: Mention both statutory and common law procedural impropriety
(1)
(2)
Statutory Procedural Impropriety
−
Statutes may impose procedural requirements
„ Section 19 of the West Kowloon Cultural District Authority Ordinance (Cap.601):
−
The Authority shall, in relation to matters concerning the development or operation of arts and
cultural facilities, related facilities, ancillary facilities and any other matters as the Authority
considers fit, consult the public at such time and in such manner as it considers appropriate.
−
Broad language: “Consider fit”, “consider appropriate” –Confers authority great discretion on
when, how and what to consult.
„ Section 21(3)(a) & (b) of the West Kowloon Cultural District Authority Ordinance (Cap.601):
−
In preparing a development plan, the Authority shall—(a) consult the public at such time and
in such manner as it considers appropriate; and (b) consult the Secretary for Home Affairs.
−
Broad language: Confers great discretion
−
Contextual approach on compliance with statutory procedural requirements: Re Au Kwok Hung
[2000]
„ i.e. Very flexible, context-sensitive approach; not a one-size-fit-all manner
„ Guiding questions for the court –No fixed answers to the following questions – hence, very uncertain
result of JR:
(1) Has there been substantial compliance with the statutory requirement?
(2) If there is non-compliance, is the statutory requirement capable of being waived in this particular
case?
(3) What are the consequences of non-compliance of statutory procedural requirement?
−
Common law should supplement statutory procedures where such procedures are insufficient to achieve
procedural fairness: Tak-pui v Immigration Tribunal [1992], CA
„ If there is no statutory requirements, the court will still apply common law rules
Common Law Duty of Procedural Fairness
−
Operate flexibility, context-dependent: Relevant factors to see what fairness demands
„ ex parte Doody [1994]
−
Language of the statute
−
Shape of the legal and administrative system within which the decision is taken
„ Lloyd v McMahon [1987]
−
The character of the decision-making body (powerful?),
−
The kind of decision it has to make (affect the person’s right to life e.g. against torture vs
person’s other aspect of life e.g. management of public toilets)
−
The statutory or other framework in which it operates (not necessarily statutory, may be in
form of CE’s Order)
−
Whether it affects individuals
„ Not all decisions affect individuals (some affects companies only or legal persons)
„ Court is more vigilant as to individuals – because their rights, ideologically, are the
ultimate goal of law. So the court draws distinction between individuals and nonindividuals.
−
Two rules of natural justice: Kanda v Government of Malaya [1962] (Lord Denning):
„ Two rules of natural justice
−
Impartiality: Rule against bias
−
Fairness: Right to be heard
−
Sliding scale (Deportation of torture claimant): Secretary for Security v Sakthevel Prabakar [2005]
„ The more serious the nature of the decisions, the higher should be the degree of fairness.
−
Context-dependent: Life and limb are in jeopardy and his fundamental HR not to be
subjected to torture is involved
−
Rigorous examination to ensure that the required high standards of fairness have been made
„ Still the authority’s responsibility to make decisions – but they should commit themselves
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„
(i)
to a high standard so that the decision will not be quashed by the court
Same words of art as in irrationality review are adopted here because the grounds of JR are
usually discussed together.
−
Flexible and balancing exercise: SEHK vs NWD (2006) HKCFAR
„ Common law principles of fairness operate flexibly, requiring the tribunal to respond reasonably to
requirements of fairness in each case,
„ Balancing any competing interests: the court usually sided with the less rigorous side
−
1. ensure public authority has acted fairly
−
2. at the same time not to usurp the authority’s responsibility
−
Fairness usually takes form of: ex parte Doody [1994]
„ Ultra vires model: Legislative intent that administrator acts in a fair manner
−
Fairness usually take form of:
„ 1. Opportunity to make representations on his own belief before the decision for
producing a favorable result; or after it is taken for procuring its modification; or both
−
Can be oral or written – norm is written reps.
−
Carrie Lam argue: reps can be received after decision
„ 2. Informed of gist of the case: for making meaningful representations
Rule against Bias (Rule of Natural Justice)
−
Applicable to: Courts and administrators
−
Definition of Bias: Re Medicaments and Related Classes of Goods (No 2) [2001]
„ Bias is an attitude of mind which prevents the judge from making an objective determination of the
issues.
„ Bias not only takes form of outcomes of a decision; but also in the process which may indirectly
affect the outcome
−
e.g. judge’s impartial assessment of evidence may be affected by a prejudice in favour of or
against a particular witness
„ It is not necessary to prove actual bias, but only apparent bias.
−
Confirmed 2 types of bias: Chau Siu Woon v Cheung Shek Kong [2010]
„ 1. Actual bias
„ 2. Apparent bias
„ The decision will be automatically nullified if actual bias can be proved – no need to prove
apparent bias. But the standard is not that high as in proving ACTUAL bias.
−
Confirmed that there are two types of bias. But the court recognized that the cases of actual bias
is rare and thus largely redundant.
−
ACTUAL BIAS
„ Definition: Re Medicaments and Related Classes of Goods (No. 2) [2001], Chau Siu Woon v Cheung
Shek Kong [2010]
−
(1) where a judge has been influenced by partiality or prejudice in reaching his decision and
(2) where it has been demonstrated that a judge is actually prejudiced in favour of or against a
party.”\
„ Effect – automatically nullified:
−
If and to the extent that actual biass can be shown, a decision is unlawful: Re Medicaments and
Related Classes of Goods (No. 2) [2001]
−
Conclusive vitiating factor: Chau Siu Woon v Cheung Shek Kong [2010]
„ Rare to find actual bias:
−
It is a state of mind which can hardly be proved
„ Difficult to prove, and thus largely redundant: Chau Siu Woon v Cheung Shek Kong [2010]
„ Prrof of actual bias is very difficult because the law does not allow questioning of a judge
about what influences his mind: Locabail (UK) Ltd v Bayfield Properties Ltd [2000]
„ Availability of apparent bias: The common law does not expect litigants to discharge the higher
burden of actual bias but the lesser burden of showing a real danger of bias (i.e. apparent bias):
Locabail (UK) Ltd v Bayfield Properties Ltd [2000]
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−
APPARENT BIAS
„ Definition: R v Sussex Justices, ex p McCarthy [1924]
−
Justice should not only be done, but should manifestly and undoubtedly be seen to be done
„ Apparent bias itself is sufficiently harmful to society and the reputation of the court.
Reinforced the importance of both substantive justice and procedural justice (we care about
appearances but not only substance).
„
(1) General Test for Bias
−
General test for bias: Porter v Magill [2002]
„ TEST: The question is whether the fair-minded and informed observer, having
considered the facts would conclude that there was a real possibility that the tribunal
was biased”.
−
The fair-minded and informed observer: Not a person trained in law, not the fairminded and informed court, but a reasonable person in society (similar to that in tort
law)
−
Note the language: real POSSIBILLIITY of bias but not real DANGER of bias
−
Endorsed the above test by HKCFA: Deacons v White & Case Ltd Liability Partnership
[2004]
−
Fair-minded observer will be taken to think that authority adheres to the safeguards of
practice, unless contrary evidence shown: Medical Council of Hong Kong v Helen Chan
(2010) HKCFA
Admin
Presence of legal advisers in the Medical Council’s deliberations prior to his
decision
drafting of the decision
Issue
Any apparent bias?
Holding
No
1. In the absence of evidence to the contrary, a fair-minded hypothetical
observer must be taken to be someone who would credit [the authority]
with adherence to the safeguards of its stated practice
2. i.e. Need some evidence pointing to bias arising from lawyer’s presence
instead of a mere allegation; otherwise assume the body adheres to the
safeguards of the practices
Outcome Rule in favour of Council
„
(2) Pecuniary Interest
−
Once a pecuniary interest (share in P co) is identified à disqualify as a judge in the case:
Dimes v Grand Junction Canal Proprietors (1852) HL
Facts
Judge has shares in P co. D applied to have his decision set aside.
Issue
Any apparent bias (as a ground of appeal)?
Holding
Yes
1. No man is to be a judge in his own case.
2. If a judge has financial or proprietary interest in the outcome of its
case, he is sitting as a judge in his own case à Automatic
disqualification w/o investigation
3. Appearance matters, mere fact of his pecuniary interest is sufficient to
disqualify him unless he has made sufficient to disqualify
Outcome Appeal allowed
„
(3) Non-pecuniary Interest
−
Include personal animosity 敵意 or friendship
−
Judge being a party to the case, despite non-pencuinary, also automatic disqualification, ex
p Pinochet Ugarte (No 2) [2000]
Facts
Pinochet was the dictator of Chile and was arrested for crimes against humanity.
He applied to the court to quash the warrants.
Admin
HL decided against P by a 3:2 majority. Amnesty International made a
decision submission during the proceedings.
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Issue
Holding
Outcome
„
P petitioned against the order because Lord Hoffmann was the chairman of the
AI Charity Ltd in London. However, (1) Lord Hoffmann had not taken part in
AI’s submissions in the case and (2) they are separate entities.
Any apparent bias?
Yes
1. A man may not be judge in his own cause
2. If a judge is in fact a party to the litigation, he is sitting as a judge in his
own cause
3. The mere fact that he is a party to the action is sufficient to cause his
automatic disqualification, unless he has made sufficient disclosure.
4. Application:
­
Despite no pecuniary interest in the outcome
­
Given his links with AI as a chairman of AI Charity Ltd, Lord
Hoffmann could not be seen to be impartial
­
Failure of disclose the connections leading to decision to be set aside
P won the case. Judgment set aside.
(4) Exception: Waiver by the party not being favoured (EXAM!!!)
−
Party not being favoured may have waived his right to be heard by judge who is
apparently biased: Locabail (UK) Ltd v Bayfield Properties Ltd [2000]
„ “Although disqualification under the rule in the Dimes case, and Pinochet (No. 2) is
properly described as automatic, a party with an irresistible right to object to a judge
hearing or continuing to hear a case may waive his right to object.”
„ It is however clear that any waiver must be:
(1) Clear and unequivocal
(2) Made with full knowledge of all the facts relevant to the decision whether to waive or
not.
(ii) Right to a Fair Hearing (Rule of Natural Justice)
−
Hearing = considerations of written consideration; hearing is broader than a trial
−
Right to a fair hearing is very narrow– NO unless circumstances demand
„ 1. Legal representation: no
„ 2. Duty to give reasons: no
„ 3. Duty to consult: no
−
−
Ÿ
Natural justice applies to decisions of public authorities that affect the interests of the individual:
Ridge v Baldwin [1964]
Administrative convenience cannot justify unfairness: ex p Fayed [1988]
Whether oral hearing?
−
Not necessarily an oral hearing; relevant factors: R v Army Board for the Defence, ex p Anderson [1991]
„ Usually non-oral hearing on the basis of documents or submissions is the norms but not oral hearing.
−
If the govt has to conduct oral hearing all the time, it cannot be efficient and respond to the
drastic change in society; only oral hearing when there is great procedural unfairness.
(Administrative convenience cannot justify unfairness: ex p Fayed [1988])
„ Whether to grant oral hearing depends on a balancing act –
−
Subject matter and circumstances of the particular case
−
Nature of the decision to be made
−
Whether there are substantial issues of fact which cannot be satisfactorily resolved on the
available written evidence
„ Conflict of evidence≠must be oral – may be resolved by the inherent unlikelihood of one
version of the other; or the conflict is not central to the issue for determination
−
Persons facing serious charges may be entitled to an oral hearing: Liu Pik Han v Hong Kong
Federation of Insurers Appeals Tribunal [2005]
Facts
It is alleged that an insurance agent made false declarations in her applications
Admin
Board suspended the registration of the agent
decision
Issue
Whether Appeal Tribunal should allow fresh hearing?
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Holding
Outcome
Yes, Sliding scale of procedural fairness
1. Dispute of facts: especially when the resolution of such dispute may hinge on
one’s impression as to the credibility of a witness or a party, a fair hearing
involves an oral hearing being held.
2. Seriousness of the charge and its consequence: Charge contains an imputation
of fraud, with implications on her integrity. Leaves a bad record and has adverse
impact on career development.
(1) Certiorari: quash the decisions
(2) Mandamus: determination of charge against applicant afresh with an oral hearing
Ÿ
Whether allow cross-examination?
−
Whether to allow cross-examination: Bushell v Secretary of State for the Environment [1981]
„ No general right of cross-examination: harsh and time-consuming.
„ Relevant factors to consider: Complex or not?
−
Nature of the topic upon which the opinion is expressed
−
Qualifications of the maker of the statement to deal with this topic
−
Forensic competence of the proposed cross-examiner
−
*** Inspector (official)’s own views as to
„ the likelihood of a cross-examination enabling him to make a report which will be more
useful for the minister in reaching its decision
„ Justifying any expense and inconvenience to parties
Ÿ
Higher Standard of Fairness: Where legal rights interfered in licensing
−
A higher standard of fairness is required where pre-existing legal benefits or rights have been interfered
with.
„ Involve cases of licensing: What are the legal benefits or right involved in the licensing cases?
„ But the cases can be applied beyond licensing.
„
Sliding scale; pragmatic approach: McInnes v Onslow-Fane and Another [1978]
−
Application cases
−
Expectation cases: The applicant has some legitimate expectation that his application will be
granted (e.g. the licence are reviewed regularly and there are no peculiar circumstances
justifying the refusal of renewal)
−
Forfeiture cases: revoking the licence – high level of fairness to be observed because rights are
taken away
„ The insurance case is a forfeiture case.
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Ÿ
(1) Legal Representation?
−
Whether legal representation is to be permitted:
„ ☹ BL35:
−
„
“Hong Kong residents shall have the right to confidential legal advice, access to the courts,
choice of lawyers for timely protection of their lawful rights and interests or for representation in
the courts, and to judicial remedies.”
„ No cons right of legal representations to a non-judicial body e.g. administrative tribunal
☹ No legal rep in informal, expert, lay tribunal: SEHK v NWD (2006) HKCFAR
Facts
Admin
decision
Issue
Holding
Outcome
„
Ÿ
Disciplinary Committee consisting of market practitioners but not lawyers. Informal
proceedings. Lengthy submissions were discouraged.
But legal advice was allowed.
Legal representation was not permitted.
Whether NW is entitled to common law right to full representation before a
disciplinary committee?
No
1. No absolute right to have legal representation n tribunal
2. Entitlement to legal representation depends on whether such procedures are
required as a matter of fairness
3. What fairness requires depends on circumstances
4. Application
­
Public interest in swift investigation of suspected infringements
­
An informal, expert, lay tribunal, which has expertise concerning stock
exchange is best placed to deal swiftly with disciplinary issues
­
Over-lawyering the procedures would substantially lengthen and compliate
proceedings
JR not succeeded.
Complex issues and strong demands for political accountability, fairness may demand right to
legal representation: Rowse v Secretary for Civil Service [2008]
−
A legally qualified advocate is required to separate relevant things from irrelevant
considerations; and express the usntle and complex difficulties dearly.
−
Denying him legal rep materially prejudiced him , and denied him natural justice.
„ Legal representation was allowed in this case. But this is an exception to the norm.
(2) The Duty to Give Reasons?
General position: The common law does not recognize a right to reasons, (for the sake of efficiency). But
there may be a breach of natural justice if reasons are not given in some circumstances:
Ÿ
If a decision appears perverse;
Ÿ
If the decision concerns a right or interest such as the right to liberty.
Ÿ
If reasons are required by a statute.
−
−
TEST: Is refusal to give reasons fair despite the inconvenience? ex p Doody [1994]
Duty to give reasons given subject matter is an interest highly regarded by law: ex p the Institute of
Dental Surgery [1994]
„ No general duty to give reasons for a decision
„ Duty arises where the subject matter is an interest so highly regarded by law (e.g. personal liberty)
and fairness requires that reasons be given as of right
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−
Duty to give reasons given not frustrating statutory purpose and not harming public interest: ex p
Cunningham [1992]
Facts
Prison officer dismissed.
Admin
Board agreed improperly dismissed but awarded only 1/3 of the sum he could have
decision
expected to receive from a labour tribunal; and gave no reasons.
Issue
Whether the tribunal has duty to give reasons?
Holding
Yes: Fairness so requires
Factors: No appeal available, judicial function (need to give reasons), giving reasons
not frustrate purpose of the governing legislation (undue burden on process), not
harmful to public interest
1. There is no appeal from the board’s determination of the amount of
compensation.
2. In making that determination the board is carrying out a judicial function.
3. The board is susceptible to judicial review.
4. The procedure provided for by the code, i.e. the provision of a recommendation
without reasons, is insufficient to achieve justice.
5. There is no statute which requires the courts to tolerate that unfairness.”
6. The giving of short reasons would not frustrate the apparent purpose of the
code.
7. It is not a case where the giving of reasons would be harmful to the public
interest.”
Outcome Quashed
−
Duty to give reasons (increasing trend) + Adequacy of reasons: Oriental Daily Publisher Limited v
Commissioner for Television and Entertainment Licensing Authority [1998]
Facts
Oriental Daily published photos of censored nude female bodies. Whether they
violated standard of morality.
Admin
Obscene Articles Tribunal only gave conclusion not reasons
decision
Issue
Any duty to give reasons?
Holding
Yes
1. No absolute duty
2. The courts have increasingly found a duty to give reasons, and this trend is
followed by Hong Kong.
3. Benefits of a duty to give reasons
­
Ensure decisions are made on proper grounds
­
Show to parties that Tribunal has carried out its task properly, and enable
them to decide on the appropriate course of action (appeal/JR)
­
Provide guidance in the future to the community; more transparent standard
­
Promote consistency in reasons
­
Enhance public condence by showing that Tribunal is functioning properly
4. Adequacy of reasons!!!
­
See below
Outcome Quashed?
Ÿ
(2) Sub-ground: Adequacy of reasons
−
Oriental Daily [1998]
„ Where there is a duty to give reasons, it has to be discharged by giving adequate reasons
−
What amounts to adequate reasons depends on context
„ Show should how the substantial issues were addressed and reasons for decision
„ Unless in the extreme case where contents of the stattues would virtually speak for
themselves (no need give reasons)
−
Normally inadequate to merely recite statutory guidelines
−
Reasons can be brief
−
Where a point of law is raise, the reasons for decision would usually set out the finding of facts,
point of law at issue, and the reasoning process leading to the conclusion
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Ÿ
(3) The Duty to Consult?
−
There is no general duty to consult. No legal authority on this issue – CFA has not spoken yet. Reference
can be drawn to a CFI decision:
−
Lam Yuet Mei v Permanent Secretary for Education and Manpower [2004]:
„
When consult? For any consultation to be proper, it must be undertaken at a time when proposals are
still at a formative stage;
„
How to discharge duty?
−
1. Sufficient reasons for the proposal must be given to allow those consulted to give intelligent
consideration and response …
−
2. Adequate time must be given for consideration and response
−
3. Product of consultation must be conscientiously taken into account when the ultimate
decision is taken
„ in Palace Museum case, can be unlawful. But these rules are not fixed, may not apply to
Palace Museum case.
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TOPIC 7: LEGITIMATE EXPECTATION
1. Situations that can generate an expectation
- Clear and unambiguous representation (express or implied)
o E.g. letter from Edu Bureau that the students now studying with the school should continue to further their
studies with the school (Lam Yuet Mei v. Permanent Secretary for Education and Manpower of the Education
and Manpower Bureau)
o Q1: whether the representation was clear and ambiguous?
§ Tactic of civil servants – conditioned the rep
o Q2: If rep. reasonably susceptible of different meaning (communication problem):
§ Majoirty: interpretation applied by the public authority, subject to the test of Wednesbury
unreasonableness à followed the version of authority
§ Minority: where rep. are addressed to a wide audience including some quite unsophisticated persons,
the courts should not be astute to find ambiguity or qualification. With fairness as the touchstone, the
courts should then look at the real impact of the representation à followed the version of receiver
-
Practices
o Ho Choi Wan and Another v. Housing Authority (CFA)
§ FACTS: HKHA practice to review rent of public housing estate every 2 years; after 97 economic
downturn, HKHA suffered deficit and deicded to defer rent review; Housing OrdiannceL
§ ISSUE: any legitimate expectation of periodic review on the past practice?
§ HELD: The practice cannot give rise to the LE
• The previous practice developed in quite a different statutory setting
• Previous practice took place in the context of inflationary times - could not form a viable basis for
an expectation that it would be followed in the fundamentally different economic circumstances of
deflationary times
-
Published policy
o HK Television Network v. Chief Executive in Council
§ FACTS: policy: to broaden program choices…there would be no limit on the number of domestic free
TV licences to be issued; HKTV applied for free TV licence; rejected but granted licence to 2 other
applicants on the basis that a gradual and orderly approach should be adopted in considering free TV
licence app
§ ISSUE: any LE of no pre-fixed no. of licences?
§ D
2. Expectation is legitimate?
- Applicant could have foreseen that the subj. matter was likely to alter/knew that the represent did not intend his
statement to create an expectation
o Yook Tong Electric Company Limited v. Commissioner for Transport
- The rep, practice or policy cannot contravene the statutory purpose
o Ng Siu Tung
- Number of people affected?
- Detrimental reliance X
o Majority in NST:
§ Whether reliance or detriment must be shown by those asserting a legitimate expectation in order to
take the benefit of the representations
§
§
potentially relevant in most cases, but is not essential
very much the exception, rather than the rule, that detrimental reliance will not be present when the
court finds unfairness in the defeating of a legitimate expectation
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o
Lam Yuet Mei v. Permanent Secretary for Education and Manpower of the Education and Manpower Bureau
§ HELD:
• Rep was addressed specifically to the School, NOT to the applicant or the parents in general
• no factual basis for any expectation to arise
• A person has not changed his position after a promise was made =/= no reliance on the promise
o It may be because he lacks any means of escape
o à to est. reliance, needs not show that the position has been changed e.g. reliance by continue
staying at the village
• Had it been shown that the applicant knew representation, this is a case where the absence of
concrete detriment should not have defeated an expectation legitimately held.
3. Detrimental Reliance
4. Consequence for failing to consider the LE
- Legal duty of the administrator to make the decision in light of the LE; failure to consider the LE = failure to take
into account relevant consideration
- Majoirty in Ng Siu Tung:
o Court will order the decision-maker to exercise his discretion by taking the legitimate expectation into
account
§
Substantial weight has to be given to mitigate the unfairness of resiling from the representation
c.f. in illegality cases, relevant consideration must be considered, but the weight is not a concern of
the court,; but here, substantial weight is expected
§ Followed post-Coughlan UK development in R. LBC and Manik BiBi
Minority in Ng Siu Tung:
o If the court feels sure that once the expectation is duly taken into account an end result favourable to the
holder of the expectation will be reached by the administrative decision-maker, the court will
§ Quash the admin decision +
§ Would be entitled, in the extreme circumstances postulated, to proceed directly to substantive
enforcement e.g. by an appropriate declaration
•
-
5. Refused LE on subsequent occasion
- Standard of Review
o Bokhary PJ in Ng Siu Tung:
§ (a) reviewing abuse of power in and of itself;
§ (b) reviewing traditional Wednesbury unreasonableness
§ (c) reviewing modified Wednesbury unreasonableness as (whether the decision in question was one
which a reasonable authority could reach);
§
§
(d) reviewing disproportionality; or
(e) reviewing imbalance between fairness to the person having a legitimate expectation and the
overriding interests relied upon by the executive to justify disappointing that expectation
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o
Nadarajah, Abdi v Secretary of State for the Home Department:
§ As a requirement of good administration, a public body's promise or practice as to future conduct may
only be denied, a proportionate response having regard to a legitimate aim pursued by the public body
in the public interest
§ Proportionality will be judged by the respective force of the competing interests arising in the case.
• Unambiguous promise + detrimental reliance + promise is made to an individual or specific group
àinstances where denial of the expectation is likely to be harder to justify as a proportionate
measure
• Concerned with wide-ranging or "macro-political" issues of policy, the expectation's
enforcement in the courts will encounter a steeper climb
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Procedural Exclusivity
A. General
- Judicial Review can only proceed when
o (1) the challenged administrative act is judicially reviewable; and
§ i.e. whether the function of the body being challenged is sufficiently public
o (2) main claim of the application is a public law claim by nature
- Judicial review is an exclusive procedure:
o Claims against a party exercising public functions should be brought by JR
B. Distinction between public and private law:
- The blur distinction
o Mercury Ltd v Director-General of Telecommunications
§ [T]he precise limits of what is called ‘public law’ and what is called ‘private law’ are by no
means worked out. In the absence of a single procedure allowing all remedies ... some
flexibility as to the use of different procedures is necessary. It has to be borne in mind that
the overriding question is whether the proceedings constitute an abuse of the process of
the court
-
Difference in public & private law proceedings
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C. The Scope of Public Law
1. Reviewability
o JR is only available to challenge public bodies (broadly defined) with regard to their public
functions
§ Decision made by private body when exercising sufficiently public function is reviewable
o JR cannot be used to enforce a purely private law right, e.g. contractual right
§ Decision made by public body when exercising a private function is non-reviewable
-
How to determine reviewability:
o R v Takeover Panel, ex parte Datafin
§ Look at the functions which the official was performing in making the decision sought to
be challenged, rather than focusing only on the source of his power to make the decision.
• à it is the nature of the functions, rather than nature of the source of the power,
that is determinative
• the mere presence of some public element in the Govt’s decisions is not sufficient to
transform private law decisions into public law decisions
o
Case (1): Decision about Land
§ Grant & Cancel of licence to occupy land: Chau Tam Yuet Ching v Director of Lands
Nature of source of power
Nature of function
BL 7: “land and natural resources within HK
Decision to grant and cancel a licence
shall be State property…HK Govt shall be
for occupation of land:
responsible for their management, use and
à governed by private law such as law
development and for their lease or grant to
of contract & land law.
individuals…for use or development”
à not susceptible to public law
à Affecting public interest when making any
challenge
land-related decision
§
Modification of land user: Anderson Asphalt v Secretary for Justice
• Commercial consideration motivated asphalt producers to apply for JR against a
decision of Director of Lands to grant short-term waivers in relation to various pieces
of agricultural land
• Held:
o (i) Only a decision made in the public law domain is amendable to JR
o (ii) Whilst the nature of source of power is irrelevant, it is the nature of the
functions that the decision-maker was performing when making the decision
under challenge that is of crucial importance
o (iii) [Hang Wah Chong Principle]: where the Govt official acts in his role
as protector of the public interest in making the decision à his decision is
almost certainly liable to JR
o (iv) the restrictive user covenant in lease or grants plainly serve the
commercial and economic interest of Govt as landlord and serve the purpose
of town planning
§ there is always a built-in town planning element in land grants and
the system of land-holding in HK
§ à However, not sufficient in itself to turn a decision in relation to
modifying a restrictive user covenant in a grant or demanding a
premium for the modification into a public law decision
§ à the mere presence of some public element may not be sufficient to
render the decision a public law decision
§ The crucial Q is whether some additional public elements of
sufficient weight is/are present in the decision-making process to
render the decision made a public one
• depends on the facts & a matter of overall impression and
degree
• Decision:
o the ultimate Q: what exactly the Director is doing in making a decision to
grant a short-term waiver à is he performing a public function or is he
preforming essentially a private function?
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§
§
o
Held the role played by the Director in granting a short-term waiver
is essentially private in nature
Recovery of Land Possession: Chan Tsz Yan v Director of Lands
• Recovery of possession of land by Director of Lands in his capacity as the land
agent of Govt as landlord à the process and steps taken are prima facie not judicially
reviewable
o The steps taken by the Director in his negotiation with the occupiers and the
clearance of the land, is in a similar manner as a private landlord recovering
possession of his land from an occupier à not amenable to JR
o However, the non-reviewability is subject to a rider:
§ Director is not seeking to recover possession by means of legal
proceedings like any ordinary private landlord
§ In this way, the decisions may be reviewable
o Rider: The issue of Clearance Notice has the following legal consequences:
§ (i) the Director may direct any persons or public officer to remove
any persons and property remaining on the land and take possession
of the property
• instead of coming to court to seek an order for possession,
the Director is given the statutory authority to clear the site
after issuing the notice.
§ (ii) the property so taken would become the property of Govt free
from rights of any person
• à any personal belongings or chattels removed at the
direction of the Director after issue of a clearance notice
would be forfeited
§ (iii) any person remaining in occupation of the land after the notice
without reasonable excuse shall be guilty of an offence
§ (iv) Director may recover against a person so convicted the costs of
demolition of any structure of property on the land.
§ à the Director has considerable power in dealing with unauthorized
occupation of Govt land which goes beyond the power that can be
exercised by a private landlowner
§ à the exercise of power has a sufficiently public element to render
it susceptible to JR even though the primary objective of Director is
the recovery of possession of land as the land agent of govt
• There is distinction between the decision to resume the land and the actual process
of recovering the land
o But the reviewability of decision to resume land is not discussed in the case
• The mere presence of some public element in the decision or action may not be
sufficient to render it a public law decision.
o The crucial question is whether this is a public element of sufficient weight
in the sense that the role played or the function performed by the Govt
official is sufficiently public
Case (2): Non-public Associations
§ R v Panel on Takeover and Mergers
• The Panel on Takeovers and Mergers was an unincorporated association, with no
statutory, prerogative or common law powers and was not contractually related to the
financial market
• It exercised de facto power to devise, promulgate, amend and interpret the City Code
on Takeovers and Mergers
o à could determine claims that the code had been breached + take
disciplinary action by expelling the offender from Stock Exchange
• Held: It is no doubt performing a public duty!
o Reasons:
o (1) Clear from the expressed willing of the Secretary of State for Trade to use
the panel as the centre-piece of regulation of the market
o (2) Rights of citizens are indirectly affected by its decisions
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o
§
(3) it has duty to act judicially and it asserts that its raison deter is to do
equality between one shareholder and another
Pacific Century Insurance Co Ltd v Insurance Claims Complaints Bureau
• The Insurance Claims Complaints Bureau was incorporated to implement selfregulation in interpretation and handling of insurance claims
o Financed by its members to provide this service free of charge to complaints
• Held: it is of a public function
o (1) the Bureau at all material times been carrying out a public function by its
incorporation into a regulatory scheme underpinned by the Insurance
Companies Ordinance
o (2) it was determined that all providers of personal insurance in HK would
fall under the jurisdiction of the Bureau
o (3) it has become a scheme which binds all of HK’s personal insurance
business à give the general public a fast, efficient avenue for redress of
complaints
o à the Bureau if not a surrogate of Govt, at least an extension of Govt policy
o
Case (3): Commercial Decision
§ Anderson Asphalt v Secretary for Justice
• Commercial consideration motivated asphalt producers to apply for JR against a
decision of Director of Lands to grant short-term waivers in relation to various pieces
of agricultural land
• Held:
o A decision made in performance of a purely commercial function à most
likely a private law decision
§ But the presence of a public element of sufficient significance in
the decision-making process could turn an otherwise commercial
decision into a public law decision
§ à the mere presence of some public element may not be sufficient to
render the decision a public law decision: the crucial Q is whether
some additional public elements of sufficient weight is/are present in
the decision-making process to render the decision made a public one
• What is sufficient is a matter of fact and degree
o
Other Decisions of public bodies NOT subject to public law
§ Ordinary employment relationships even if employer is a public body (R v Secretary of
sTate for the Home Department, ex parte Benwell)
§ Exercise of disciplinary regulation within sports occupations (R v Disciplinary Committee of
the Jockey Club, ex parte Aga Khan)
§ The decision derives from contractual agreement between the authority and the applicant à
not affecting the public or a section of it (Law v National Greyhound Racing Club Ltd)
o
Other Decisions of Private bodies NOT subject to public law
§ Harris Tsang Shing Kung:
• Fact: challenged decision – the expulsion by security officer of the Royal HK Jockey
Club from a race-course
• Held:
o a security officer employed by the Club could not be considered a public
authority
o what he did was simply to remove person from private premises who the club
did not want to remain there
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2. The Exclusivity Principle
- The legal framework for applying for leave for JR:
o (1) s.21K of High Court Ordinance
o (2) The Practice Direction SL3 of Constitutional and Administrative Law List
o (3) Order 53 of Rules of High Court
§ Preamble: “In this order, application for JR includes an application in accordance with this
order for a review of the lawfulness of
• (a) an enactment
• (b) a decision, action or failure to act in relation to the exercise of a public function
§ Order 53(I): an application for JR must be made if the applicant is seeking• (a) an order for mandamus, prohibition or certiorari; or
• (b) an injunction under 21J of the Ordinance restraining a person from acting in any
office in which he is not entitled to act
§ Purpose of Order 53: “by which every type of remedy for infringement of the rights of
individuals that are entitled to protection in public law can be obtained in one and the same
proceeding (O’Reilly v Mackman)
-
The Exclusivity Principle
o Rationale for treating public authorities differently
§ (1) Public authorities have the job of running HK. They must have functions, powers and
duties which private citizens do not have.
• à the community may want to impose on them special legal duties that do not
normally apply to private citizens
§ (2) for the sake of Govt efficiency, there is also a need to protect public bodies from
unwarranted challenges
o
Content of Exclusivity:
§ O’Reilly v Mackman
• An abuse of the process of the court, to permit a person seeking to establish that a
decision of a public authority infringed rights to which he was entitled to protection
under public law to proceed by way of an ordinary action and by this means to evade
he provisions of Order 53
o i.e. if a person commenced an ordinary action where he should have applied
for JR, the action will be struck out by summary process
§
R v British Broadcasting Cooperation, Ex Parte Lavelle
• There is nothing in Order 53 or s.31 which expressly extend the circumstances in
which the prerogative writs of mandamus prohibition or certiorari are available.
These remedies were not previously available to enforce private rights but were
public law remedies
o i.e. remedies of mandamus prohibition or certiorari are ONLY for public
actions
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-
-
Exception to the Exclusivity Rule: Collateral Attack
o When public actions can be proceeded by way of private proceedings (O’Reilly v Mackman)
§ (i) public law claim being secondary/collateral to the primary private law claim; OR
§ (ii) all parties, including the challenged public body, consent to the use of private law
procedures
o
Example: Collateral attack (Using public claim as defence)
§ Secretary for Justice v Richard Ethan Latker
• Where a D to a claim wishes to challenge a public law decision as part of his defence
(i.e. collateral), the court does not have any discretion to refuse to allow him to do so
o Unless either the raising of the defence is an abuse of process or it has no
reasonable prospect of success
• There is a strong presumption against concluding that the only permissible means of
challenge is by JR
o
Example: A collateral public claim permitted in private action
§ Davy Spelthorne Borough Council
• Fact: the P commenced an action for damages against the local planning authority for
negligence
o Action 1 (the private action): Alleged that he had refrained from appealing
against an enforcement notice issued by the council in reliance on negligent
advice given by the authority
o Action 2 (the public action): Claimed an injunction order the council not to
implement the notice & order setting it aside
o à the existence of a public law element is insufficient to justify the court in
preventing P from proceeding by action in the ordinary way (i.e. private law
action)
§ particularly when one has regard to the seriousness procedural
obstacles he would find if compelled to seek JR
o
Example: JR is appropriate instead of ordinary action
§ Lau Wong Fat v AG
• Fact: P sought by writ to prevent Govt from promoting legislation providing for
women, in the absence of a will, to have the same rights to inherit rural land in New
Territories
• Held:
o Where a person seeks to establish that the decision of a person or body
infringes rights which are entitled to protection under public law, he must
proceed by way of JR, NOT by way of an ordinary action
Appropriate Procedure
o Trustees of the Dennis Rye Pension fund v Sheffield City Council
§ If it is not clear whether JR or an ordinary action is the correct procedure à safer to make an
application for JR
§ If JR is used when it should not, the court can protect its resources either by directing that the
application should continue as if begun by writ (overruled by Sit Ka Yin)
• Writ: a private law procedure
o
Sit Ka Yin v EOC
§ Fact: applicant’s employment was terminated by a public body
§ Held:
• Leave for JR refused
• (1) court understand why the applicant’s solicitors proceed initially by way of an
application for leave to apply for JR, according to Trustees of the Dennis Rye Pension
fund v Sheffield City Council
• (2) NOT appropriate to direct these proceedings continue as if begun by writ
o such rights as the applicant has are rights under the law of contract & the
applicant should plead her case properly
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TOPIC 9: APPLICATION FOR JR – PRACTITIONER’S PERSPECTIVE
1. Preliminary matters
- (i) Application for legal aid
o Means and merits test
§ Means test: the director has the power to waive financial eligibility limits where breaches of the
HKBOR are in issue (not breach of BL) (s.5AA Legal Aid Ordinance)
§ Merits test: reas. grounds for taking, defending, opposing or continuing such proceedings (s.10(3)
LAO)
• Reasonable as opposed to fanciful chance of the court at trial deciding that issue of fact in his
favour (Chung Yuk Ying)
o Legal aid may be refused if:
§ Only a trivial advantage would be gained by the applicant from such proceedings
§ It is unreasonable that the applicant should be granted legal aid in the particular circumstances
-
(ii) Protective costs order/cost capping order
o Protective cost order fixes in advance the max sum in costs that may be awarded to a party
o Cost may be dealt with by the Court at any stage of the proceedings (O.62, r.4(1) RHC)
o Conditions of granting CPO: (R v Secretary of State for Trade and Industry)
§ The issues raised are of general public importance
§ The public interest req that those issues should be resolved
§ The claimant has no private interest in the outcome of the case
§ Having regard to the financial resources of the claimant and the respondent and to the amount to costs
that are likely to be involved, it is fair and just to make the order
§ If the order is not made, the claimant will probably discontinue the proceedings and will be acting
reasonably in so doing
§ ^ order made at the discretion of the court
o Chu Hoi Dick public interest litigation order (Designing HK Ltd v TPB)
§ Applicant without legal aid will have his exposure to costs protected if he can get a “Chu Hoi Dick
Public interest litigation order” at the end even if he loses
-
(iii) Anonymity order
o Applicant may be granted anonymity and be referred to as initials of applicant e.g. W v Registrar of
Marriages (post-operative male-to-female transsexual)
o The guiding Q was whether the interests and due administration of justice were shown so to require
o E.g. asylum seekers/torture claimants as a class were not entitled to anonymity as of right (Re BU)
2. When to use RHC O.53
- JR is a procedure in which aggrieved persons can challenge the lawfulness of an enactment or a decision, action
or failure to act in relation to the exercise of a public function (O.53, r.1A)
- Applicant must use O.53 if he is seeking an order for mandamus, prohibition or certiorari, or for an injunction
under s.21J HCO restraining a person from acting in any office in which he is not entitled to act (O.53, r.1(2))
3. Leave requirement
- JR 2 stage procedure: (1) leave stage; (2) substantive hearing stage
- No application for JR shall be made unless the leave of CFI has been obtained in accordance with rules
of court (s.21K(3) HCO)/(O.53, r.3(1) RHC)
-
the Reasonable Arguability test (Po Fun Chan v Winnie Cheung)
o discarded the potential arguability test
o A reas. arguable case is one which enjoys realistic prospects of success
§ leave refused if the cases cannot be shown to be arguable
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4. Parties/Standing
- Applicant has sufficient interest
- The court shall not grant leave…unless it considers that the applicant has a sufficient interest in the
matter to which the application relates (s.21K(3) HCO)/ (O.53, r.3(7) RHC)
-
Proposed respondent (leave stage)/respondent
o Can be a public body/limited co./ registered society
o E.g. Stock Exchange HK Ltd, Law Society of HK Ltd., HK Bar Association
-
Interested parties
o Interest parties means any person (other than Applicant and Respondent) who is directly affected by the the
application (O.53, r.1A RHC)
o E.g. Society for Community Org; Sixtus Leung Chung Han and Yau Wai Ching; HK Bar Association
-
Intervener
o An entity may apply for permission to become an intervener at the hearing of JR
o Court’s decision –making may benefit from the perspectives of interveners (make different or broader legal
points, or provide additional facts)
o TEST: whether the would-be interveners, through their expertise, are likely to be able to assist the court in
understanding either the legal issues in Q or the factual basis of the claim and the consequences that may
flow from the court judgment
o E.g. International Commission of Jurists (intervener in W v Registrar of marriages)
-
Amicus curiae
o A party may appear as an amicus curiae “friend of the court” to expound the law impartially
o Tsang v Cathay Pacific Airways Ltd:
§ FACTS: EoC applied to ne added as a party to appeal
§ HELD: applismissedication d
• EOC’s interest in ensuring that the court received the assistance could be met by the appointment of
a suitable amicus curiae
• Gave leave to EOC to provide the court with the services of counsel as an amicus curiae, upon the
condition that EOC would neither be entitled to its cost, nor liable for costs
o C v Director of Immigration
5. Duty to act promptly
s.21K (6) HCO:
Where the CFI considers that there has been undue delay in making an application for JR the Court may refuse to
grant
- (a) Leave for the making of the application; or
- (b) any relief sought on the application.
If it consider that the granting of the relief sought would be l9ikley to cause substantial hardship to, or substantially
prejudice the rights of, any person or would be detrimental to good administration
O.53, r.4(1) RHC:
An application for leave to apply for JR shall be made promptly and in any event within 3 months from the date
when grounds for the application first arose unless the Court considers that there is good reason for extending the
period within which the application shall be made
O.53, r.4(2) RHC:
Where the relief sough is an order of certiorari in respect of any judgment, order, conviction or other
proceedings, the date when grounds for the application first arose shall be taken as to be the date of the same
Remark: even if the judgment etc is only later discovered, times starts to run from the date of that judgment etc
-
Extending time
o What may be a good reason for extending time would depend on the circumstances of each case + multi-facet
Q (AW v Director of Immigration)
o Significant (non-exhaustive) factors:
§ Length of delay: longer to delay, more cogent the reason for extending time
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§
§
§
§
Explanation of the delay: credibly valid explanation for the delay will strengthen the applicant’s
request
Merits of the substantive application: but leave may be refused however strong the complaint may
otherwise be (Po Fun Chan v Winnie Cheung)
Prejudice: (i) prejudice to the applicant if time is not extended v.s. (ii) prejudice to the respondent and
to pubic administration if a challenge is allowed to proceed out of time
Questions of general public importance
6. Exhaustion of alternative remedy
JR as remedy of last resort; another adequate remedy available should normally be used first e.g. appeal
procedure (statutory or administrative)
- Required to exhaust ALL alternative remedies?: take into account the nature and grounds of review and ask
whether the forums for the pursuit of the alternative remedies are suitable for resolving the issues raised (BH v
Dir. of Immigration)
- Degree of flexibility exists to cater for cases where it can be shown that an exception must be made if substantial
injustice is to be avoided à early launching of JR is not premature
7.
-
-
Relief
Mandamus (mandatory order)
Prohibition (prohibiting order)
Certiorari (quashing order)
Injunction to restrain persons acting in offices in which they are not entitled to act (s.21J HCO)
Private/equitable remedies: declaration, injunction, damages, restitution, recovery of a sum due
o Where the relief sought is a declaration, an injunction or damages and the Court considers that it should
NOT be granted on an application for JR BUT might have been granted if it had been sought in an action
begun by writ by the applicant at the time of making his application, the Court may … order the proceedings
to continue as if they had been begun by writ … (RHC O.53, r.9(5))
o NB: no power to order a private law action continue as if begun by JR application
§ à if in doubt, should start with JR
JR is a discretionary remedy: the court may refuse leave if as a matter of substance, the applicant has not suffered
prejudice (AH v Director of Immigration)
8. Cost
- Chan Noi Hang v CE in Council
o The court has to ask itself how meritorious were the issues raised before it?
§ If the issues raised by the unsuccessful applicant were really quite hopeless, then it is difficult to
conceive of a court making any order other than costs follow the event
o The fact that leave has been granted is insufficient to prevent the usual order of costs being made
§ Leave stage: the court looks no more than the merits at the most preliminary of stages in the proceedings
§ C.f. cost determination stage: the court examine the matter at the final stage, after all the arguments have
been fully developed, considered and determined
-
Leung Kwok Hung v PLC (No 2) (2014) 17 HKCFAR
o General rule: unsuccessful applicant will not be ordered to pay the costs of a putative respondent or interested
party UNLESS there are unusual circumstances which justify such an award (ß discretion sparingly
exercised!)
o Relevant consideration to justify the cost order: reason that has led the opposing party to attend at the
hearing, whether that party’s attendance has been of material benefit to the court in determining the leave
application, and the underlying lack of merit s of the application
-
The court may deprive a successful party of some of all of his costs to reflect that significant time and costs have
been incurred in the litigation as a result of the issues raised on which he is ultimately unsuccessful
(Television Broadcasts Ltd v Communications Authority)
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