Learning Outcomes
After attending this session, students should be
able to:
•  explain the principles of natural justice
•  analyze whether the principles of natural justice
have been infringed
•  reflect on the further development of procedural
fairness
Judicial Review &
Procedural Fairness
Benny Y. T. Tai
Associate Professor
Faculty of Law
University of Hong Kong
1
Issues
•  What are the principles of natural justice?
•  Under what conditions will the principles of natural
justice be applicable?
•  What is the legal test on bias?
•  What are the features of fair hearing?
•  What are the benefits from a duty to give reason?
•  Under what situation will fairness require reason be
given?
•  What are the requirements of an adequate reason?
•  What is the relationship between the common law and
statutory requirements on procedural fairness?
•  Under what situation will the principles of natural justice
be not applicable?
•  How will the requirement of procedural fairness
develop?
3
2
Issues that court will consider
in Judicial Review
law
as applied
to the facts
fairly
4
Council of Civil Service Unions v. Minister for the
Civil Services [1985] A.C. 374, Lord Diplock
R v. Home Secretary, ex parte Doody [1994] 1 AC 531,
at 560, Lord Mustill
“I have described the third head as ‘procedural
impropriety’ rather than 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. This is because
susceptibility to judicial review under this head
covers also failure by an administrative tribunal
to observe procedural rules that are expressly
laid down in the legislative instrument by which
its jurisdiction is conferred, even where such
failure does not involve any denial of natural
justice.“
“What does fairness required in the present case? My
Lords, I think it unnecessary to refer by name or to quote
from, any of the often-cited authorities in which the courts
have explained what is essentially an intuitive judgment.
They are far too well known. From them, I derive that (1)
where an Act of Parliament confers an administrative
power there is a presumption that it will be exercised in a
manner which is fair in all the circumstances. (2) The
standards of fairness are not immutable. They may change
with the passage of time, both in the general and in their
application to decisions of a particular type. (3) The
principles of fairness are not to be applied by rote
identically in every situation. What fairness demands is
dependent on the context of the decision, and this is to be
6
taken into account in all its aspects.“
5
R v. Home Secretary, ex parte Doody [1994] 1 AC 531,
at 560, Lord Mustill
“ (4) An essential feature of the context is the statute
which creates the discretion, as regards both its language
and the shape of the legal and administrative system
within which the decision is taken. (5) Fairness will very
often require that a person who may be adversely affected
by the decision will have an opportunity to make
representations on his own behalf either before the
decision is taken with a view to producing a favourable
result; or after it is taken, with a view to procuring its
modification; or both. (6) Since the person affected
usually cannot make worthwhile representations without
knowing what factors may weigh against his interests
fairness will very often require that he is informed of the
gist of the case which he has to answer.“
7
Leung Fuk Wah Oil v. Commissioner of Police
CACV 2744/2001
•  Leung was a sergeant of the Hong Kong Police. He was in
serious financial difficulties. He was charged with two
disciplinary offences, pursuant to section 3(2)(e) of the
Police (Discipline) Regulations for failing to be prudent
in his financial affairs by incurring unmanageable size of
debts whereby his efficiency as a police officer was
impaired.
•  A disciplinary hearing took place in early 1999. A
Superintendent was appointed as the appropriate Tribunal.
Leung was found guilty of the offence on 28 March 1999.
•  The Tribunal then referred the punishment to a Senior
Police Officer who imposed a penalty of reduction to the
rank of police constable and dismissal from the force.
•  The Force Disciplinary Officer confirmed the finding of
guilt and penalty.
8
Leung Fuk Wah Oil v. Commissioner of Police
CACV 2744/2001
Leung Fuk Wah Oil v. Commissioner of Police
CACV 2744/2001
•  Leung then appealed to the Commissioner of Police. The
Deputy Commissioner of Police exercising the delegated
authority of the Commissioner dismissed the appeal.
•  Leung applied for judicial review to quash the decisions
of the Tribunal, the Senior Police Officer and the Deputy
Commissioner of Police on the ground that certain
documents considered by the Deputy Commissioner
were not disclosed to him.
•  Hartman J. dismissed the application in respect of the
decisions of the Tribunal and the Senior Police Officer.
However, he quashed the decision of the Deputy
Commissioner.
•  Both Leung and the Commissioner appealed.
Decision of the Court of Appeal:
“Fairness requires the material to be disclosed so that the appellant
may have a chance to respond to it.…the judge was right when he
considered that the material needed to be disclosed as a matter of
fairness…The real question in this appeal is whether the nondisclosure vitiates the decision of the Commissioner and requires it
to be quashed.
…Having considered all the circumstances of this case, it is
abundantly clear that the disclosure of the new documents to Mr.
Leung would not have made the slightest difference to his petition
to the Commissioner…
Judicial review is a discretionary remedy. If the breach of the
principle of fairness does not produce a substantial prejudice to
the applicant, the court is bound to take this into account in
deciding whether relief should be given. This is consistent with the
concept that the court should not substitute its own decision for that
10
of the decision-maker.“
9
ULTRA VIRES &
Procedural Fairness
Judicial Review and Procedural Fairness
Three rules of natural justice (duty to act
fairly)
•  The First Rule: Right to Unbiased Decision
•  The Second Rule: Right to Fair Hearing
•  The Third Rule: Right to reason
11
12
Procedural Fairness
Right to Unbiased
Decision
Before the decision is
made
Right to Fair Hearing
During the making of
the decision
Right to reason
After the decision
is made
Michael Rowse
v.
Secretary for the Civil Service
and Others
HCAL 41/2007
13
14
Background
Background
•  After SARS in 2003, the Chief Executive
announced an economic relaunch campaign.
•  Michael Morse (MR), Director-General of
Investment Promotion, head of Invest HK
acted as the Secretary of Economic Relaunch
Working Group (ERWG) and Economic
Relaunch Strategy Group (ERSG).
•  HK$1 billion was budgeted under the control
of Invest HK.
•  In June 2003, MR was approached by Mr James
Thompson, Chairman of the American Chamber
of Commerce in Hong Kong.
•  Mr Thompson proposed an international
entertainment festival should be held.
•  In early July 2003, AmCham made a formal
presentation to ERWG; the festival was to consist
of a number of pop concerts featuring
internationally known actors.
•  The ERWG approved AmCham‘s proposal in
principle subject to Invest HK‘s scrutiny of, and
satisfaction with, AmCham‘s detailed budget.
15
16
Background
Background
•  Invest HK reviewed the proposed budget.
•  The budget was very roughly drawn, especially in
respect of ‘talent‘ costs which were estimated to
make up some 70% of the budget.
•  Performers were listed; no negotiations had been
concluded; the list was aspirational and the costs
were broadly indicative.
•  The ERWG prepared to work with the initial
proposed budget and approved a maximum of HK
$100 million for festival.
17
•
•
•
•
•
•
The Harbour Fest fell far short of expectations. Media
comment was generally negative. Members of the
Legislative Council expressed concern.
In October 2003, the Audit Commission commenced its
review.
The Audit Commission observed that many of the problems
had arisen because “too little time was available to do too
many things.“
In November 2003, the Chief Executive appointed an
Independent Panel to inquire into the handling of the
festival.
In its report, the Independent Panel was critical of MR,
finding that, as Government‘s controlling officer, he had not
adequately discharged his responsibilities.
Chief Executive directed that disciplinary action against MR
be held.
18
Five Charges
Background
•  An Inquiry Committee was appointed by the
Secretary for the Civil Service, acting under
delegated authority.
•  Two members of the Committee: Chairman,
Mr Wilfred Tsui, the Judiciary Administrator
and Mr Lo Yiu Ching JP, the Permanent
Secretary for the Environment, Transport and
Works (Works)
19
There were five charges of misconduct:
(a)  failing to ensure that the budget proposed critically examined
by Invest HK and that the ERWG was fully and adequately
advised on the proposed budget (substantiated);
(b) failing to ensure that an effective mechanism was in place to
enable the Government to monitor the organisation of the
Harbour Fest properly and to ensure that the Government‘s
interest in the use of public funds allocated to the festival was
adequately protected (partially substantiated);
(c) failing to ensure that the Government‘s interests were adequately
protected in the sponsorship contract (partially substantiated);
(d) failing to ensure that a critical review of ticket pricing strategy
was carried out thereby prejudicing the Government‘s position
(partially substantiated);
(e) failing to establish procedures and mechanisms whereby a
detailed budget and all statements of account in relation to the
festival would be subject to the scrutiny and approval by Invest
HK prior to and during the course of the festival as a result of
which the Government‘s interests in the proper monitoring of
20
the festival were prejudiced (partially substantiated).
Issue 1:
Impartiality of the Inquiry Committee
Background
•  The Secretary for the Civil Service accepted the
Inquiry Committee‘s findings in full and imposed
penalty:
–  a severe reprimand
–  a fine equivalent to reduction in salary by two
increments for 12 months
–  a caution that, in the event of further misconduct,
serious consideration would be given to removing
MR from the Civil Service
•  MR applied for judicial review.
•  Tsui, in anticipation of his retirement, had made
an application for the waiver of the ‘sanitisation‘
period; that is, the period during which,
immediately following his retirement, he could
not take up other work; delayed making his
application for a waiver of his sanitisation
period until after the report had been submitted
and the Secretary for the Civil Service had
accepted its findings.
21
Issue 1:
Impartiality of the Inquiry Committee
•  Lo, with his retirement also looming, was the subject of an
application made by his department for his re-employment.
-  There was no delay in the application.
-  Lo had been appointed to the Inquiry Committee some three
months before the application for his re-employment.
-  Though the application stood to benefit him, it was essentially
incidental. The application was made for the benefit of the
Bureau to meet its operational needs.
-  The application was first subject to the scrutiny of an
independent statutory body, Public Service Commission,
whose concern would be solely the operational needs and
succession planning. This would place constraints on the final
decision-making discretion of the Secretary for the Civil
Service.
23
22
Issue 1:
Impartiality of the Inquiry Committee
•  The Secretary for the Civil Service, who had
appointed both Committee members, and to
whom their report would be submitted, was the
person who would finally decide, or be materially
instrumental in deciding, whether to grant the two
applications.
•  Any apparent bias?
24
Issue 1:
Impartiality of the Inquiry Committee
Issue 1:
Impartiality of the Inquiry Committee
•  Test for apparent bias: “The Court must
first ascertain all the relevant
circumstances and then ask whether those
circumstances would lead a fair-minded
and informed observer to conclude there
was a real possibility that the tribunal was
biased.“
Deacons v. White & Case Ltd Liability
Partnership (2003) 6 HKCFAR 322.
Hartmann J.:
“…the applicant‘s concerns in respect of Mr Tsui were set
to one side when, among other things, he learnt that Mr Tsui
had delayed making his application for a waiver of his
sanitisation period until after the report had been
submitted and the Secretary for the Civil Service had
accepted its findings.“
25
Issue 1:
Impartiality of the Inquiry Committee
Hartmann J.:
“An informed observer would, of course, have been aware of the fact
that Mr Lo had been appointed to the Inquiry Committee as far back
as late September 2004, some three months before the application for
his re-employment. An informed observer would also have been
aware of the process by which all applications of the kind made by Mr
Lo were processed; namely:
•  The application would only have been made by the Bureau itself
on the basis of operational need.
•  The application would have been referred to the Public Service
Commission, an independent statutory body, which would have
considered the application on the merits.
•  Any decision made by the Secretary for the Civil Service to reemploy Mr Lo would only have been made if the Public Service
Commission – as it did in the present case – had given its approval.
…I do not believe that it would have given rise in the mind of a fairminded, independent observer to a real possibility that Mr Lo, and
through him the Committee itself, may have been biased.“
27
26
Issue 2: Standard of Proof
Duty of a disciplinary tribunal:
–  not under any obligation to expressly state what
standard of proof;
–  but if a disciplinary tribunal chooses to give some
indication of the standard of proof it has adopted, it
should do so in terms that make it clear it has
adopted the correct standard;
–  a failure to do so may indicate that the Tribunal has
not fully understood the correct test to be applied
and that it could not therefore, in the systematic
manner demanded, have applied the correct test.
28
Issue 2: Standard of Proof
Issue 2: Standard of Proof
The correct standard:
- balance of probability
- a single standard: a tribunal may be satisfied as to an
evidential matter if it considers, on all the evidence, that it
was more likely than not
- the tribunal must have in mind as a factor – to whatever
extent is appropriate in the particular case – that the more
serious the allegation the less likely it is that the event
occurred and, hence, the stronger should be the evidence
before the tribunal concludes that the matter has been
established on the balance of probability (See A Solicitor v.
The Law Society of Hong Kong,, FACV 24/2007).
The Committee directed itself on the standard of proof:
“The Defence advocated a higher standard of proof than ‘a
mere balance of probability‘, at least to ‘a high degree of
probability‘.
This Committee does not want to get involved in legalistic
definition of what the two terms mean. What the
Committee can confirm is that it was relied only on the
documentary evidence submitted by the parties and oral
testimony of the witnesses. The onus of proof is on the
Assisting Officer to produce evidence to substantiate the
Charges. Where there is no documentary evidence and the
oral evidence by witnesses are in conflict, the benefit will
go the Accused Officer.“
Was the correct standard applied?
29
30
Issue 2: Standard of Proof
Issue 2: Standard of Proof
Hartmann J.:
“…that direction, it seems to me…fails to take into
account what any standard of proof demands; that is, a
review of the strength of the evidence. Even when there is
no conflict, the evidence simply may not be cogent enough.
It seems to me that certain of the core issues that fell for
determination by the Inquiry Committee demanded not only
an accurate assessment of what it was that the evidence was
intended to proof but whether understood in context, it was
compelling enough to do so.“
Hartmann J.:
“…by way illustration only, the Committee may have
directed itself as follows: ‘The accused officer [the
applicant] has a long and unblemished record. He has held
positions of considerable responsibility. The charges
against him are serious. They allege misconduct on his part
by way of a failure to discharge his duties to the standard
expected of an officer of his rank. Having regard to his
history of service, his alleged misconduct must be
improbable. That being the case, the more compelling must
be the evidence needed to satisfy us on the preponderance
of probability that, instead of striving to do his best in
circumstances of extreme difficulty, the applicant was guilty
of oversight and neglect and was therefore guilty of
misconduct.‘“
31
32
Issue 3: Denial of legal representation
Issue 3: Denial of legal representation
•  MR applied to have legal representation in the
disciplinary proceeding.
•  The Secretary for Civil Service refused legal
representation on the basis of a policy that legal
representation would only be permitted for
compelling reasons.
•  Is this the proper test?
•  If the fairness test is applied in this case, should
legal representation be allowed?
Public Service (Disciplinary) Regulation s.8(3)
provides that:
“The officer may be assisted in his defence by(a) another public servant, other than a legally
qualified officer, who may be a representative
member of a staff association represented on the
Senior Civil Service Council; or
(b) such other person as the Chief Executive may
authorise.“
33
34
Issue 3: Denial of legal representation
Issue 3: Denial of legal representation
•  Under the Regulation, the CE has the discretion to
authorise representation of an officer by ‘such other
person‘ as the officer may choose, that ‘other person‘
must include a lawyer. There is a discretion to permit
legal representations if the circumstances were
appropriate. It is a matter, in each and every case, of
what fairness requires.
•  Under common law, there is no absolute right to be
legally represented before an administrative tribunal,
even a tribunal with the power to impose swingeing
penalties, there is a discretion vested in the tribunal to
permit legal representation if fairness requires it.
Hartmann J.:
“I am of the view that the approach adopted by the Secretary for the
Civil Service was erroneous. His function was simply to weigh all
the factors relevant to the applicant‘s application and to come to a
judgment as to what fairness required in his case. Instead, it seems
that he approached the matter on the basis that he must adhere to a
policy, seemingly well established, to the effect that legal
representation would not be permitted unless compelling
circumstances were demonstrated. In so doing, the Secretary was
fettering his discretion.
…For him the threshold test was…one of…attempting to determine
whether, on consideration of all relevant factors, an exception should
be made to the general rule laid down by the policy. But, in my
opinion, what fairness dictates in determining whether legal
representation should or should not be granted is not to be constrained
by the shackles of some set policy, still less a policy that puts the bar
as high as the requirement to show compelling circumstances…there
can be no threshold test of ‘exceptionality‘. “
35
36
Issue 3: Denial of legal representation
Issue 4:
Dual role played by the Department of Justice
Hartmann J.:
“This leads me to consider whether, despite its shortcomings, the
decision made by the Secretary for the Civil Service in fact
prejudiced the applicant in any material way. It is well established
that a breach of the rules of fairness will not inevitably lead to an
administrative decision being quashed.
…In my judgment, these circumstances created a complex
scenario…the difficulties and the nuances of explaining to the
Inquiry Committee the unique problems faced in that situation plainly
required the services of a legally qualified advocate trained to
separate out the relevant from the irrelevant and to express in the
clearest manner possible the subtle and complex difficulties that
would have arisen in undertaking the Harbour Fest.
I am satisfied that the decision to deny the applicant legal
representation, having regard to the exceptional circumstances of his
case, may well have materially prejudiced him in the presentation of
his case. In short, the decision denied him natural justice.“
37
•  DOJ acts as a legal adviser to Government in respect of disciplinary
proceedings brought against civil servants guilty of misconduct.
•  A law officer in the DOJ gave advice concerning the prosecution:
(a) the institution of the disciplinary proceeding (advising whether
there was a prima facie case against the accused officer;
considering the draft charges, and giving advice concerning the
accused officer‘s request for legal representation); (b) during the
course of the hearings before the Inquiry Committee (giving
advice to those responsible for the prosecution of the proceedings);
(c) the report of the Inquiry Committee (considering the report to
advise whether the proceedings were in order and whether the
findings of the Inquiry Committee were supported by evidence
presented during the hearings.)
•  The same law officer gave advice to the Secretary for the Civil
Service (giving advice whether the accused officer was or was not
guilty of any breach of discipline and the appropriate penalty to be
given.
•  Any apparent bias?
Issue 4:
Dual role played by the Department of Justice
Issue 4:
Dual role played by the Department of Justice
•  Test for apparent bias: “The Court must
first ascertain all the relevant
circumstances and then ask whether those
circumstances would lead a fair-minded
and informed observer to conclude there
was a real possibility that the tribunal was
biased.“
Deacons v. White & Case Ltd Liability
Partnership (2003) 6 HKCFAR 322.
Hartmann J.:
“…in my view, there was an inherent conflict in
playing an integral advisory role in the prosecution
of the applicant for breach of discipline and
thereafter playing an integral role in advising the
Secretary for the Civil Service whether to find the
applicant guilty of any such breach.
…a fair-minded and informed observer, having
considered the facts, would have concluded that
there was a real possibility of bias on the part of Mr
Wingfield arising out of his dual advisory role.“
39
38
40
Issue 5: Non-disclosure to MR of the advice given by
the law officer to the Secretary for the Civil Service
Issue 5: Non-disclosure to MR of the advice given by
the law officer to the Secretary for the Civil Service
•  The advice given to the Secretary for the
Civil Service concerning the findings of
the Inquiry Committee and the viability of
those findings by the law officer was not
disclosed to MR.
•  Was this unfair?
Hartmann J.:
“It is now well established, certainly in respect of disciplinary
proceedings, that it is unfair for a tribunal to receive evidence
or submissions from one of the parties without the other
parties having the opportunity to comment on them.
…In the present case, it must be understood that the ultimate
judge of the applicant‘s culpability was the Secretary for the
Civil Service. In that sense, he constituted ‘the tribunal‘.…All
that came before constituted the gathering of evidence and the
rendering of advice so that the Secretary could make his
decision. As such, in my opinion, it was quite clearly a breach
of the rule of fairness for the Civil Service Bureau, on the
advice of the Department of Justice, to give advice to the
Secretary concerning the decision to be made by him without
giving the applicant the opportunity to see that advice and, if he
wished, to comment on it.“
41
Issue 6: Unreasonableness of the findings of the
Inquiry Committee
•  Charge (a): MR had failed to ensure that the budget
proposed by AmCham for Harbour Fest had been
critically examined by Invest HK and whether the ERWG
had been fully and adequately advised on the proposed
budget when funding approval was considered at the
meeting of the ERWG.
•  The Inquiry Committee found that the charge was
substantiated.
•  The Inquiry Committee found that the talent costs, TV
production costs and marketing costs had not been
subject to critical examination by Invest HK.
•  There was unchallenged evidence that the budget was
understood to be indicative and that those costs that were
capable of verification had been verified.
•  Were the decisions on the findings of the Inquiry
Committee unreasonable?
43
42
Issue 6: Unreasonableness of the findings of the
Inquiry Committee
Hartmann J.:
“It is not for the court to examine the merits of the Inquiry
Committee‘s findings. This court‘s jurisdiction is restricted
to a review of the lawfulness of the decision-making
process.
I confess to having considerable sympathy for the
applicant‘s contention: what could be verified was
verified…
There may not have been direct evidence of the
consequences of any failure – if it be such – on the part of
the applicant. But the Committee was entitled to consider
all the relevant circumstances at the time and to come to a
finding as to the standard of performance to be expected of
an officer of the applicant‘s rank and experience. This court
must be slow to interfere with a judgment to that end.“
44
Issue 6: Unreasonableness of the findings of the
Inquiry Committee
Hartmann J.:
“It is to be remembered that ‘misconduct‘, as it is defined
in the Disciplinary Guide, is a broad concept, one that can
best be understood by civil servants who are bound by that
concept.
Was the decision nevertheless irrational? Another Inquiry
Committee may well have come to a different conclusion –
I may have done so – but that is not to the point. In my
judgment, whether the determination was right or wrong,
I do not see how it can be described as a decision which
no reasonable Inquiry Committee could have reached.“
45
Issue 7: Chief Executive acting ultra vires in
delegating his powers
•  MR made his representations to the Chief Executive as
appeal against the decision of the Secretary for the Civil
Service under s.20 of the Public Service
(Administration) Order.
•  The Chief Executive delegated to the Chief Secretary
the authority to determine MR‘s appeal.
•  The Chief Secretary, having carefully considered the
case, had decided to uphold the findings as to culpability
and penalty.
•  Had the CE acted ultra vire by delegating his power to
consider MR‘s appeal?
46
Issue 7: Chief Executive acting ultra vires in
delegating his powers
Issue 7: Chief Executive acting ultra vires in
delegating his powers
Section 20, Public Service (Administration) Order:
(1) Every officer who has any representations of a public or
private nature to make to the Government of HKSAR
should address them to the Chief Executive. The Chief
Executive shall consider and act upon each representation
as public expediency and justice to the individual may
request.
(2) The Chief Executive may appoint a review board to
advise him on such representations addressed to him
relating to appointment, dismissal and discipline of public
servants as he things fit.“
Section 19, Public Service (Administration) Order:
“(1) Subject to subsection (2), the Chief Executive may
delegate to any public servant or any other public officer
any powers or duties conferred or imposed on him by
sections 3 and 9 to 18.
(2)The Chief Executive shall not delegate the power to
make regulations under section 21(2).“
47
48
Issue 7: Chief Executive acting ultra vires in
delegating his powers
Issue 7: Chief Executive acting ultra vires in
delegating his powers
Hartmann J.:
“As to the powers of delegation given to the Chief
Executive under s.63 of the Interpretation and General
Clauses Ordinance, Cap. 1, it was not disputed that this
section relates only to delegation of statutory powers and
was not therefore relevant to the delegation of power under
an executive order.
In reading the relevant provisions of the Administration
Order in context, and giving to those provisions their
ordinary English meaning, I confess that I have
considerable difficulty with [the] contention that the power
to delegate powers and functions under s.20 is implicit.“
Hartmann J.:
“S.19(1) provides that the Chief Executive‘s power to delegate
is limited to certain specifically identified sections. If the Chief
Executive‘s powers and functions under s.20 were always
‘understood‘ to be subject to delegation, why was s.20 not
included as a relevant section in s.19(1)? On any ordinary
reading, its omission, it seems to me, must have been intended.
…what is sought to be delegated is not an ancillary or
peripheral power, one that is incidental. What is sought to be
delegated is the power to determine appeals by civil servants…
the power relates to matters of discipline which can carry
consequences of real seriousness.“
Issue 7: Chief Executive acting ultra vires in
delegating his powers
Issue 8: failure of CS to give reasons
rejecting MR‘s appeal
49
Hartmann J.:
“It is a power therefore of importance. To the extent that
the power goes to the determination of disciplinary appeals,
it is a power which has many of the features of a judicial
power.
I must conclude that the Chief Executive acted outside of
the powers given to him in the Administration Order when
he purported to delegate the determination of the
applicant‘s s.20 appeal. The delegation being invalid, so
too was the Chief Secretary‘s decision made pursuant to
that delegation.“
51
50
•  The decision of the Chief Secretary that MR‘s appeal
should be dismissed was conveyed to MR by a letter. No
reasons for the decision were given.
•  MR sought reasons but was refused.
•  Was there a duty to give reason by the Chief Secretary?
52
Issue 8: failure of CS to give reasons
rejecting MR‘s appeal
Issue 8: failure of CS to give reasons
rejecting MR‘s appeal
Hartmann J.:
“s. 20 does not impose a statutory duty to give reason.
As to the common law position…this is not to say that there now
exists any rule of common law to the effect that a public authority
must always give reasons for its decisions. Nor, as I understand it,
does there exist a duty generally to give reasons subject only to
reasonable exceptions that have evolved by way of empirical
experience.
… what will be implied by our courts is only so much as is necessary
by way of procedural safeguards to ensure fairness. But the standards
of fairness are not.
In the light of those principles,…it was necessary in each case to
conduct an analysis of “the character of the decision making body,
the kind of decision it has to make and the statutory or other
framework in which it operates.“
Hartmann J.:
“I am satisfied that the Chief Secretary had no duty in law to give
reasons in the present case. I say so for the following reasons:
(i)  As I have said, s.20 of the Administration Order imposes no
general duty to give reasons.
(ii)  The appeal was not to an outside body; for example, to a
division of the High Court, which, as a stranger to the
disciplinary code contained in the Administration Order, may be
expected to give reasons to explain its approach. The appeal
remained within the Civil Service.
(iii) The Chief Secretary did not assume any form of inquisitorial
role. The Inquiry Committee had already heard the relevant
evidence, made its findings of fact and submitted a detailed
report. The Chief Secretary was required to do no more than
review the contents of the report and the applicant‘s
representations and to assess them in light of his own
knowledge and experience as a civil servant.“
53
54
Issue 8: failure of CS to give reasons
rejecting MR‘s appeal
Hartmann J.:
“(iv) There was no appeal to any higher body and no need therefore
to supply reasons for the benefit of that body…what must be
remembered is that the entire process is administrative. The
Chief Secretary is not a judge.
(v)  Reasons may be required in a case when the interest at issue is
highly regarded by the law; for example, when the issue is
dismissed from service. In the present case, however, no such
punishment was at risk on appeal. The penalty imposed on the
applicant, while obviously a blow for him personally, did not
threaten his continued service at his attained rank.
(vi)  …there may be occasions when, for example, a first instance
decision on its face is so aberrant that any review of such a
decision demands communicated reasoning. But…I do not see
that, on its face, any finding of the Inquiry Committee was so
aberrant as to demand some explanation for its acceptance.“
55
Applicability of
Natural Justice
56
Ridge v. Baldwin [1964] A. C. 40
Ridge v. Baldwin [1964] A. C. 40
•  Ridge, became chief constable of the County Borough of Brighton
in 1956, after serving in the Brighton Police Force for some 33
years.
•  Ridge had been arrested on October 25, 1957, and subsequently
tried on a charge of conspiring with the senior members of his
force and others to obstruct the course of justice, and had been
suspended from duty on October 26.
•  He was acquitted on February 28 but the other two members of the
force were convicted and in sentencing them the trial judge,
Donovan J., made a statement which included grave reflections on
Ridge‘s conduct.
•  At a meeting of the watch committee, the police authority, on
March 7, 1958, it was resolved that he should be dismissed. The
watching committee gave no notice to Ridge of the grounds on
which the committee proposed to act and no opportunity to hear
Ridge‘s own defence was offered.
57
Ridge v. Baldwin [1964] A. C. 40
58
Ridge v. Baldwin [1964] A. C. 40
•  The power of dismissal is contained in section 191 (4) of
the Municipal Corporations Act, 1882:
“The watch committee, or any two justices having
jurisdiction in the borough, may at any time suspend, and
the watch committee may at any time dismiss, any
borough constable whom they think negligent in the
discharge of his duty, or otherwise unfit for the same.“
•  Should the principle of natural justice be applicable in
this case?
•  Was there a breach of the rule of fair hearing?
59
Lord Reid:
“…cases of dismissal. These appear to fall into three classes:
dismissal of a servant by his master, dismissal from an office held
during pleasure, and dismissal from an office where there must be
something against a man to warrant his dismissal.
The law regarding master and servant is not in doubt. There cannot
be specific performance of a contract of service and the master can
terminate the contract with his servant at any time and for any reason
or for none. But if he does so in a manner not warranted by the
contract he must pay damages for breach of contract.
…Then there are many cases where a man holds an office at
pleasure. …It has always been held, I think rightly, that such an
officer has no right to be heard before he is dismissed and the reason
is clear. As the person having the power of dismissal need not have
anything against the officer, he need not give any reason.
…the third class which includes the present case. There I find an
unbroken line of authority to the effect that an officer cannot lawfully
be dismissed without first telling him what is alleged against him
and hearing his defence or explanation.“
60
Ridge v. Baldwin [1964] A. C. 40
Lord Reid:
“The matter has been further complicated by what I believe to be a
misunderstanding of a much-quoted passage in the judgment of Atkin L.J.
in Rex v. Electricity Commissioners Ex parte London Electricity Joint
Committee Co.( [1924] 1 K.B. 171, 205; 39 T.L.R. 715) He said:
‘... the operation of the writs [of prohibition and certiorari] has extended to
control the proceedings of bodies which do not claim to be, and would not
be recognised as, Courts of Justice. Wherever any body of persons having
legal authority to determine questions affecting the rights of subjects, and
having the duty to act judicially, act in excess of their legal authority, they
are subject to the controlling jurisdiction of the King‘s Bench Division
exercised in these writs.‘
If …it is never enough that a body simply has a duty to determine what the
rights of an individual should be, but that there must always be something
more to impose on it a duty to act judicially before it can be found to
observe the principles of natural justice, then that appears to me impossible
to reconcile with the earlier authorities.
I can see nothing ‘superadded‘ to the duty itself. Certainly Lord Atkin did
not say that anything was superadded. And a later passage in his judgment
convinces me that he, inferred the judicial character of the duty from the
nature of the duty itself.“
Nature of
decision maker
Nature of the
interest of the
person affected
61
Kinds of Interest
62
traditional legal rights
63
64
Cooper v. The Board of Works for the Wandsworth
District (1893) 14 CBNS 180
65
Cooper v. The Board of Works for the Wandsworth
District (1893) 14 CBNS 180
Cooper v. The Board of Works for the Wandsworth
District (1893) 14 CBNS 180
•  Under the s. 76 of the Metropolis Local Management Act,
any person shall give seven days‘ notice to the district
board of his intention to build before he begins to build a
new house.
•  In default of such notice it shall be lawful for the district
board to demolish the house.
•  C built his house without giving such notice and the
Wandsworth district board decided to pull down and
demolish his house.
•  Should the principles of natural justice be applicable in
this case?
•  Did the Wandsworth district board have the power to
demolish the house without giving any notice to C and
offering him an opportunity of being heard?
66
Lau Tak-pui v. Immigration Tribunal
[1992] 1 HKLR 374
WILLES, J.
“I apprehend that a tribunal which is by law invested
with power to affect the property of one of Her
Majesty‘s subjects, is bound to give such subject an
opportunity of being heard before it proceeds: and
that that rule is of universal application, and founded
upon the plainest principles of justice.“
67
68
Lau Tak-pui v. Immigration Tribunal
[1992] 1 HKLR 374
Lau Tak-pui v. Immigration Tribunal
[1992] 1 HKLR 374
•  The Immigration Tribunal established under the Immigration
Ordinance in exercising its power under s. 53D of the Ordinance
determined that Lau had not been born in Hong Kong, that the
removal order made by the Deputy Director of Immigration was
therefore valid and that his appeal against such orders should be
dismissed.
•  There is no express provision requiring the Tribunal to give reason.
•  The Tribunal did make a statement explaining the ground for its
decision as follows:
“After careful consideration of the evidence given by all parties
concerned and by the witnesses presented, the Tribunal has come
to the conclusion that the Appellants, have not discharged the
burden of proof that they were born in Hong Kong and therefore do
not enjoy the right of abode in Hong Kong under s. 2A of the
Immigration Ordinance. The appeal is dismissed.“
•  Should the principles of natural justice be applicable in this
case?
•  Was there a duty to give reason?
69
•  Was that reason an adequate one?
Decision of the Court of Appeal:
“Hong Kong Immigration Tribunal was and is a fully judicial and
non-domestic body when hearing such appeals … it exercises powers
affecting the liberty and residential and citizenship rights of
appellants pursuant to statutory provisions of some complexity. These
are special circumstances which, quite apart from any implication to
be derived from the wording of s. 53D, as to which I express no
opinion, require as a matter of fairness the provision of outline
reasons showing to what issues the Tribunal has directed its mind and
the evidence upon which it has based its conclusions.
Turning then to the adequacy of the reasons given in the respective
appeals they show that the only issue …fell for their determination,
namely the appellants‘ places of birth, had been addressed and, by
necessary implication, that all the evidence germane to that issue had
been considered.“
70
O‘Reilly v. Mackman [1983] 2 A.C. 237
public law interests
71
72
O‘Reilly v. Mackman [1983] 2 A.C. 237
O‘Reilly v. Mackman [1983] 2 A.C. 237
•  O‘Reilly was serving a long sentence of imprisonment.
A disciplinary award of forfeiture of remission of
sentence was made by the Board of Visitors of Hull
Prison in the exercise of their disciplinary jurisdiction
against O‘Reilly.
•  O‘Reilly wanted to challenge the decision on the ground
that the Board failed to observe the rules of natural
justice.
•  The action was commenced by originating summons,
i.e. by private law proceeding.
•  Should the principles of natural justice be applicable
in this case?
•  Was the matter a public law or a private law matter?
•  Can public law matter be proceeded in private law
proceeding?
Lord Diplock:
“It is not…contended that the decision of the board
awarding him forfeiture of remission had infringed or
threatened to infringe any right of the appellant derived
from private law, whether a common law right or one
created by a statute. Under the Prison Rules remission of
sentence is not a matter of right but of indulgence. So far as
private law is concerned all that each appellant had was a
legitimate expectation, based upon his knowledge of what is
the general practice, that he would be granted the maximum
remission, permitted by …the Prison Rules, of one third of
his sentence if by that time no disciplinary award of
forfeiture of remission had been made against him. So the
second thing to be noted is that none of the appellants had
any remedy in private law.“
73
O‘Reilly v. Mackman [1983] 2 A.C. 237
74
McInnes v Onslow-Fane [1978] 1 WLR 1520
Lord Diplock:
“In public law, as distinguished from private law, however, such
legitimate expectation gave to each appellant a sufficient interest to
challenge the legality of the adverse disciplinary award made against
him by the board on the ground that in one way or another the board
in reaching its decision had acted outwith the powers conferred upon
it by the legislation under which it was acting; and such grounds
would include the board‘s failure to observe the rules of natural
justice: which means no more than to act fairly towards him in
carrying out their decision-making process, and I prefer so to put it.
In the instant cases where the only relief sought is a declaration of
nullity of the decisions of a statutory tribunal, the Board of Visitors of
Hull Prison, as in any other case in which a similar declaration of
nullity in public law is the only relief claimed, I have no hesitation, in
agreement with the Court of Appeal, in holding that to allow the
actions to proceed would be an abuse of the process of the court.“
75
76
McInnes v Onslow-Fane [1978] 1 WLR 1520
McInnes v Onslow-Fane [1978] 1 WLR 1520
•  M applied for the licence to the western area council of
the British Boxing Board of Control, and the board
refused to grant it. The board was an unincorporated body
of persons formed with the objects of controlling,
regulating and encouraging professional boxing in the
United Kingdom.
•  The board did not inform M the reason for the decision
nor did the board agree to give him an oral hearing.
•  Should the principles of natural justice be applicable in
this case?
•  Was there a breach of the principles of natural justice?
77
Megarry V.-C.:
“…there is the question of whether the grant or refusal of a licence
by the board is subject to any requirements of natural justice or
fairness which will be enforced by the courts.
…at least three categories may be discerned. First, there are what may
be called the forfeiture cases. In these, there is a decision which takes
away some existing right or position, as where a member of an
organisation is expelled or a licence is revoked. Second, at the other
extreme there are what may be called the application cases. These are
cases where the decision merely refuses to grant the applicant the
right or position that he seeks, such as membership of the
organisation, or a licence to do certain acts. Third, there is an
intermediate category, which may be called the expectation cases,
which differ from the application cases only in that the applicant has
some legitimate expectation from what has already happened that his
application will be granted. This head includes cases where an
existing licence-holder applies for a renewal of his licence or a
person already elected or appointed to some position seeks
confirmation from some confirming authority.“
78
McInnes v Onslow-Fane [1978] 1 WLR 1520
McInnes v Onslow-Fane [1978] 1 WLR 1520
Megarry V.-C.:
“It seems plain that there is a substantial distinction between the
forfeiture cases and the application cases. In the forfeiture cases, there is
a threat to take something away for some reason: and in such cases, the
right to an unbiased tribunal, the right to notice of the charges and the
right to be heard in answer to the charges…are plainly apt. In the
application cases, on the other hand, nothing is being taken away, and in
all normal circumstances there are no charges, and so no requirement of
an opportunity of being heard in answer to the charges. Instead, there is
the far wider and less defined question of the general suitability of the
applicant for membership or a licence. The distinction is well-recognised,
for in general it is clear that the courts will require natural justice to be
observed for expulsion from a social club, but not on an application for
admission to it. The intermediate category, that of the expectation cases,
may at least in some respects be regarded as being more akin to the
forfeiture cases than the application cases; for although in form there is
no forfeiture but merely an attempt at acquisition that fails, the legitimate
expectation of a renewal of the licence or confirmation of the
membership is one which raises the question of what it is that has
happened to make the applicant unsuitable for the membership or licence
79
for which he was previously thought suitable.“
Megarry V.-C.:
“...there may well be jurisprudential questions about the true
nature of such a ‘right.‘ I have no intention of discussing the
wide variety of meanings which the protean word ‘right‘
embraces; but if a person has a right in the strict sense of the
word, then some other person or persons must be subject
to a duty correlative to that right. Yet who is under a duty
to provide the work? Who can be sued? The ‘right to work‘
can hardly mean that a man has a ‘right‘ to work at
whatever employment he chooses, however unsuitable he is
for it; and if his ‘right‘ is merely to have some work
provided for him that is within his capabilities, then the
difficulty of determining who is under the duty to provide it
is increased.
…‘the right to work‘ …will not come to be accepted by the
law as being a term of art, or as an example of what can
truly be called a ‘right.‘“
80
McInnes v Onslow-Fane [1978] 1 WLR 1520
Megarry V.-C.:
“Looking at the case as whole, in my judgment there is no obligation
on the board to give the plaintiff even the gist of the reasons why
they refused his application, or proposed to do so. This is not a case in
which there has been any suggestion of the board considering any
alleged dishonesty or morally culpable conduct of the plaintiff.
…There is a more general consideration. I think that the courts must
be slow to allow any implied obligation to be fair to be used as a
means of bringing before the courts for review honest decisions of
bodies exercising jurisdiction over sporting and other activities which
those bodies are far better fitted to judge than the courts. This is so
even where those bodies are concerned with the means of livelihood
of those who take part in those activities.
…I cannot see how the obligation to be fair can be said in a case of
this type to require a hearing. I do not see why the board should not be
fully capable of dealing fairly with the plaintiff‘s application without
any hearing. The case is not an expulsion case where natural justice
confers the right to know the charge and to have an opportunity of
meeting it at a hearing.“
81
Mohamed Yaqub Khan v. Attorney General
[1986] HKLR 922
Ridge v. Baldwin [1964] A. C. 40
Lord Reid:
“…cases of dismissal. These appear to fall into three classes:
dismissal of a servant by his master, dismissal from an office held
during pleasure, and dismissal from an office where there must be
something against a man to warrant his dismissal.
The law regarding master and servant is not in doubt. There cannot
be specific performance of a contract of service and the master can
terminate the contract with his servant at any time and for any reason
or for none. But if he does so in a manner not warranted by the
contract he must pay damages for breach of contract.
…Then there are many cases where a man holds an office at
pleasure. …It has always been held, I think rightly, that such an
officer has no right to be heard before he is dismissed and the reason
is clear. As the person having the power of dismissal need not have
anything against the officer, he need not give any reason.
…the third class which includes the present case. There I find an
unbroken line of authority to the effect that an officer cannot lawfully
be dismissed without first telling him what is alleged against him
and hearing his defence or explanation.“
82
Mohamed Yaqub Khan v. Attorney General
[1986] HKLR 922
•  Khan, a Superintendent of the Hong Kong Auxiliary
Police Force, was dismissed by the Commissioner of
Police on the ground of his misconduct.
•  Section 9(1) of the Hong Kong Auxiliary Police Force
Ordinance (Cap. 233), was in these terms:
“Gazetted officers may be appointed, promoted,
reduced in rank or dismissed by the Governor.“
•  Khan was not informed of the actual allegations against
him.
•  Should the principles of natural justice be applicable
in this case
83
84
Mohamed Yaqub Khan v. Attorney General
[1986] HKLR 922
Cons, V.-P.:
“…in cases where an officer can only be dismissed for
cause…the requirements of natural justice will depend
upon the reason which in fact underlies his dismissed. At
the very least, we would think he is entitled to know the
reason for his dismissal.
…we have come to the conclusion …to dismiss Mr. Khan
were matters of misconduct…we therefore conclude that in
the circumstances Mr. Khan ought to have been informed
of the contents of that memorandum and given the
opportunity to make representations in answer.“
public law interests
include legitimate expectation
(See the lecture on Legitimate
Expectation concerning
situations that can generate a
legitimate expectation)
85
86
Right to Unbiased Decision:
•  test of bias: no need to have actual bias; only
apparent bias is needed.
•  The test to determine apparent bias:
Reasonable likelihood to the eyes of reasonable
man
a real danger of bias on the part of the relevant
members of the tribunal in question
Right to Unbiased Decision
87
88
Right to Unbiased Decision:
Right to Unbiased Decision:
Causes of prejudice:
•  Test for apparent bias in Hong Kong: “The
Court must first ascertain all the relevant
circumstances and then ask whether those
circumstances would lead a fair-minded and
informed observer to conclude there was a real
possibility that the tribunal was biased.“
Deacons v. White & Case Ltd Liability
Partnership (2003) 6 HKCFAR 322.
•  judge in his own cause: automatic
disqualification
–  pecuniary interest
–  prosecutor as judge
–  other interests
89
Dimes v. The Proprietor of the Grand Junction
Canal (1852) 3 H.L.C. 7
90
Dimes v. The Proprietor of the Grand Junction
Canal (1852) 3 H.L.C. 7
•  A public company, which was incorporated, filed a bill
of equity against a land-owner, in a matter largely
involving the interests of the company.
•  Lord Cottenham, the Lord Chancellor had an interest as
a shareholder in the company to the amount of several
thousand pounds, a fact was unknown to the defendant
in the suit.
•  The cause was heard before the Vice-Chancellor, who
granted the relief sought by the company.
•  The Lord Chancellor, on appeal, affirmed the order of
the Vice-Chancellor.
•  Any Bias?
91
92
Panel on Takeovers and Mergers and Another v. William
Cheng Kai-man (Privy Council Appeal No. 16 of 1995)
Dimes v. The Proprietor of the Grand Junction
Canal (1852) 3 H.L.C. 7
Lord Campbell:
“No one can suppose that Lord Cottenham could be, in
the remotest degree, influenced by the interest that he had
in this concern; but my Lords, it is of the last importance
that he maxim that no man is to be a judge in his own
cause should be held sacred.
…And that is not to be confined to a cause in which he is a
party, but applies to a cause in which he has an interest.
This will be a lesson to all inferior tribunals to take care not
only that in their decrees they are not influenced by their
personal interest, but to avoid the appearance of labouring
under such an influence.“
93
94
Panel on Takeovers and Mergers and Another v. William
Cheng Kai-man (Privy Council Appeal No. 16 of 1995)
•  The statutory body responsible for regulating the
securities market in Hong Kong is the Securities and
Futures Commission.
•  The Hong Kong Panel on Takeovers and Mergers
under the Securities and Futures Commission is
responsible for policing the observance of the Hong
Kong Takeover Code.
•  The Panel determined that Cheng had acted in breach
of the Rule of the Hong Kong Takeover Code in his
takeover of the Royle Company.
•  The Panel‘s ruling required Cheng to pay compensation
to shareholders amounting to some HK$49 million.
95
Panel on Takeovers and Mergers and Another v. William
Cheng Kai-man (Privy Council Appeal No. 16 of 1995)
•
One of the members of the Panel, Clark, had sent to the
Chairman of the Securities and Futures Commission a letter
concerning Cheng‘s breach of the Code in these terms:
“I am writing to you in my assumed capacity as the keeper of the conscience
of the chairman of the Takeover Committee. In the newspaper, Royle
Corporation Limited announced that it had purchased 100,000 shares in Shun
Ho Resources at 40 cents per share, thereby triggering a takeover offer. Since
the shares in Shun Ho Resources have, with the exception of one day in
January, traded consistently above 40 cents per share over the last six months
(see attached chart), the seller must have been particularly well disposed to
Royle Corporation to have sold shares at below the market price. Has any
enquiry been made as to the identity of the party who sold these shares, as it
has the looks of a concert party action.
If you look back at the press clippings, you will find that William Cheng
purchased marginally less than 35% of Standard Lloyds (now Shun Ho
Resources) and the Soon family‘s shareholding dropped from about 65% to
nil, the balance of the Soon family‘s holding apparently being placed. It is
quite conceivable that William Cheng knew the identity of the places, as it is
entirely illogical for him to have controlled a listed pyramid on such a small
shareholding base.“
96
Panel on Takeovers and Mergers and Another v. William
Cheng Kai-man (Privy Council Appeal No. 16 of 1995)
Panel on Takeovers and Mergers and Another v. William
Cheng Kai-man (Privy Council Appeal No. 16 of 1995)
•  Clark was also a director of the Anglo Chinese
Company and a substantial shareholder in its holding
company. A non-exclusive agency agreement was made
between Cheng and the company that Anglo Chinese
Company would act for Royle Company in connection
with the disposal by it of any property.
•  Any Bias?
Decision of the Privy Council:
“Their Lordships‘ view is that upon a fair reading the letter did no
more than indicate that the circumstances might merit investigation
in order to ascertain whether or not a concert party had been
involved.
In their Lordships‘ opinion any interest which Mr. Clark might have
had is properly to be described as a remote and contingent one,
such as in many of the decided cases has been held not to involve any
presumption of bias. The interest was plainly extremely remote, and
it depended on the contingencies that Mr. Cheng would utilise the
services of Anglo Chinese in relation to any disposal of property, and
that Anglo Chinese would find a purchaser at a price acceptable to
Mr. Cheng. The mandate was non-exclusive. It did not bind Mr.
Cheng to use the services of Anglo Chinese for any disposal of
property, and in view of Mr. Clark‘s involvement it may be regarded
as highly improbable that he would do so.“
97
Wong Pun Cheuk v. Medical Council
[1964] HKLR 477
98
Wong Pun Cheuk v. Medical Council
[1964] HKLR 477
99
•  The Director of Medical and Health Services referred
a case against Wong, a medical practitioner, for
prescribing drugs not required for the purpose of
medical treatment to the Medical Council under
Regulation 15 of the Dangerous Drugs Regulations.
•  The Dangerous Drugs Regulations were made under s.
11 of the Dangerous Drugs Ordinance.
•  The Medical Council of Hong Kong decided to
withdraw the authorization to prescribe drugs from
Wong after an inquiry.
•  The Director of Medical and Health Services chaired
the Medical Council in this inquiry in accordance with
s.3 of the Medical Registration Ordinance.
•  Any Bias?
100
Wong Pun Cheuk v. Medical Council
[1964] HKLR 477
Wong Pun Cheuk v. Medical Council
[1964] HKLR 477
Decision of the Court:
“…it is clear that the Director, under regulation 15 of the Dangerous
Drugs Regulations, has to be of the relevant opinion, which opinion
would no doubt not regard the suspect as being innocent, before he
refers the case to the Medical Council for their decision on the case
as to whether or not to make the relevant recommendation, and it
thus appears that he is in the position of a complainant or accuser,
having presumably previously gone into the evidence available in
order to form the relevant opinion, and being of the relevant opinion
refers the case for decision to the Medical Council. At the hearing of
the inquiry the decision on the case as to whether or not to make the
relevant recommendation is made by the Medical Council, and
therefore the members of the Council are the judges of the case, and
have to adjudge whether or not the recommendation should be
made.“
Decision of the Court:
“It is also clear that the Director is not only a member of the Medical
Council but he is also its chairman because section 3 of the Medical
Registration Ordinance says so…. This seems to me to be contrary to
the legal principle that a person should not be a judge in his own
cause, which is what the regulation, as at present constituted, as I
have pointed out, in my opinion lays down, and it therefore appears
to me to be unjust, and I cannot think that that could have been the
intention of the Legislature in section 11 of Dangerous Drugs
Ordinance.....
For these reasons I have come to the conclusion that regulation 15 of
the Dangerous Drugs Regulations is ultra vires the enabling
powers in section 11 of the Dangerous Drugs Ordinance...“
101
102
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
•
•
•
•
•
•
Pinochet was the Head of State of Chile from 11 September 1973
until 11 March 1990. It is alleged that during that period there
took place in Chile various crimes against humanity (torture,
hostage taking and murder) for which he was knowingly
responsible.
In October 1998 Pinochet was in UK receiving medical
treatment.
In October and November 1998 the judicial authorities in Spain
issued international warrants for his arrest to enable his
extradition to Spain to face trial for those alleged offences. The
Spanish Supreme Court has held that the courts of Spain have
jurisdiction to try him.
Pursuant to those international warrants, Pinochet was arrested.
He immediately applied to the Court to quash the warrants.
The principle point at issue in the main proceedings in the Courts
was as to the immunity, if any, enjoyed by Pinochet as a past
Head of State in respect of the crimes against humanity for which
his extradition was sought.
103
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
•
•
•
•
An appellate committee of the House of Lords including Lord
Hoffmann heard the case.
Amnesty International (AI) became an intervener in the appeal. AI not
only put in written submissions but was also represented by counsels
including Professor Brownlie Q.C.. Professor Brownlie addressed the
committee on behalf of AI.
AI is an unincorporated, non-profit making organisation founded in
1961 with the object of securing throughout the world the observance
of the provisions of the Universal Declaration of Human Rights in
regard to prisoners of conscience.
AI consists of sections in different countries throughout the world and
its International Headquarters in London. Delegates of the Sections
meet periodically at the International Council Meetings to co-ordinate
their activities and to elect an International Executive Committee to
implement the Council‘s decisions. The International Headquarters in
London is responsible to the International Executive Committee. It is
funded principally by the Sections for the purpose of furthering the
work of AI on a worldwide basis and to assist the work of Sections in
specific countries as necessary.
104
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
•  The work of the International Headquarters is
undertaken through two United Kingdom registered
companies Amnesty International Limited (AIL) and
Amnesty International Charity Limited (AICL).
•  Lord Hoffmann is a Director and Chairperson of
AICL, a registered charity incorporated on 7 April 1986
to undertake those aspects of the work of AIL which are
charitable under UK law. AICL funds a proportion of
the charitable activities undertaken independently by
AIL.
•  Since 1990 Lord Hoffmann has been the one of the two
Directors of AICL. He is neither employed nor
remunerated by either AICL or AIL. He has not been
consulted and has not had any other role in Amnesty
International‘s interventions in the case of Pinochet.
Lord Hoffmann is not a member of Amnesty
International.
•  In 1997 Lord Hoffmann helped in the organisation of a
fund raising appeal for a new building for Amnesty
International UK. He helped organise this appeal
together with other senior legal figures, including the
Lord Chief Justice, Lord Bingham. Lord Hoffmann,
when practising at the Bar, appeared in the Chancery
Division for Amnesty International UK.
105
106
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
•  The House of Lords decided against Pinochet by a
majority of three to two. Lord Hoffmann one of the
majority judges.
•  Pinochet lodged a petition asking that the order should
either be set aside completely or the opinion of Lord
Hoffmann should be declared to be of no effect.
•  The sole ground relied upon was that Lord Hoffmann‘s
links with AI were such as to give the appearance of
possible bias.
•  Any bias?
LORD BROWNE-WILKINSON (House of Lords):
“The fundamental principle is that a man may not be a judge in his
own cause. This principle, as developed by the courts, has two very
similar but not identical implications. First it may be applied literally:
if a judge is in fact a party to the litigation or has a financial or
proprietary interest in its outcome then he is indeed sitting as a
judge in his own cause. In that case, the mere fact that he is a party
to the action or has a financial or proprietary interest in its outcome is
sufficient to cause his automatic disqualification. The second
application of the principle is where a judge is not a party to the suit
and does not have a financial interest in its outcome, but in some
other way his conduct or behaviour may give rise to a suspicion
that he is not impartial, for example because of his friendship with a
party. This second type of case is not strictly speaking an application
of the principle that a man must not be judge in his own cause, since
the judge will not normally be himself benefiting, but providing a
benefit for another by failing to be impartial.“
107
108
R v Bow Street Magistrate, ex parte Pinochet
Ugarte (No. 2) [1999] 2 WLR 274
LORD BROWNE-WILKINSON (House of Lords):
“In my judgment, this case falls within the first category
of case, viz where the judge is disqualified because he is a
judge in his own cause. In such a case, once it is shown
that the judge is himself a party to the cause, or has a
relevant interest in its subject matter, he is disqualified
without any investigation into whether there was a
likelihood or suspicion of bias. The mere fact of his
interest is sufficient to disqualify him unless he has made
sufficient disclosure“
109
R. v. Chairman of the Town Planning Appeal Board
Panel [1995] HKCFI 170; HCMP87/1995
•  Shortly after that decision, the Friends of the Earth
gave a press conference commenting upon the decision
of the Appeal Board.
•  Justice Litton was a member of the Board of
Governors of Friend of the Earth.
•  Knowing that Justice Litton would be the chairperson
of the panel hearing its appeal, ML requested Justice
Litton not to sit in the appeal.
•  Justice Litton resigned from the Board of Governors
of Friends of the Earth.
•  The request was refused.
•  ML applied for judicial review to challenge the
decision of Justice Litton not to stand down.
•  Any bias?
111
R. v. Chairman of the Town Planning Appeal Board
Panel [1995] HKCFI 170; HCMP87/1995
•  ML Ltd was the registered owner of a piece of land in
New Territories.
•  ML made a Third application to the Town Planning
Board for approval of a proposed residential
development with nature reserve at the site.
•  The application was rejected and ML lodged an appeal
to the Town Planning Appeal Board.
•  Mr. Justice Litton, who was a Justice of the Court of
Appeal of Hong Kong, was the chairperson of the
panel.
•  Town Planning Appeal Board in a previous decision
allowed an appeal against a refusal of planning
permission for a development in an area lying just next
to ML‘s site.
110
R. v. Chairman of the Town Planning Appeal Board
Panel [1995] HKCFI 170; HCMP87/1995
Decision of the Court of First Instance:
“…this application is premature…there was no example …of what
might be termed a pre-emptive strike…there was no report of a
judicial review where a party was attempting to prevent somebody
who was prima facie entitled to adjudicate from doing so.
The hearing of the appeal has not taken place. It seems to me that
what the Applicant should do whilst making it clear that it does not
agree with the decision of Litton J.A. is to allow the appeal to
proceed and be heard on its merits, and if it does lose the day and
there is no reason to assume that it will, to look at the situation as it
then stands and consider whether it ought to apply for a judicial
review.…if before the event, merely in order to satisfy misgivings on
the part of one party leave were granted, there would be a multitude
of applications for judicial review. It is certain that many of them
would according to the laws of probability be completely otiose
because in many of them it must be that the fears expressed would
turn out to be unjustified.“
112
R. v. Chairman of the Town Planning Appeal Board
Panel [1995] HKCFI 170; HCMP87/1995
Right to Unbiased Decision:
Causes of prejudice:
Decision of the Court of First Instance:
“I note that Litton J.A. is a judge of the Court of Appeal of Hong
Kong. That is one of the facts which I must take into account. He
knows his duty which is to chair the hearing impartially and to decide
the appeal on its merits in the light of the evidence and of planning
guidelines. He will not be alone: he will be sitting with the other
members of the Board, all of whom have a duty to form their own
independent views.
…the real question this court is asked to decide is this: Is there a real
danger in the sense of a real possibility that injustice will occur as a
result of unconscious bias in the mind of Litton J.A. if he is
permitted to take part as Chairman of the Board or at all in the
hearing of the appeal?
On the evidence, I am not satisfied that any such real danger exists.
The Applicant thinks it does but the Applicant has failed to satisfy me
at this stage on the material before me that any such real danger
exists.“
113
•  other personal interests: family
relationship or friendship
114
Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon [1969] 1 Q.B. 577
Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon [1969] 1 Q.B. 577
•
•
•
•
115
Oakwood Court was owned by the Freshwater Group. It proposed
to increase the rents of the flats.
James Lannon, one of the tenants, applied to the rent officer to
register a “fair rent“ under the Rent Act of 1965.
The procedure for determining rents is laid down by the Rent Act
of 1965. Upon application, a rent officer for the area will first
determine a fair rent. He is usually a valuer appointed by the
local authority. If either party objects to his figure, he can appeal
to the rent assessment committee.
This is a committee which consists of a lawyer member (who is
chairman), a valuer member, and a lay member. The rent officer
is thus a tribunal of first instance. The rent assessment committee
is an appeal tribunal.
116
Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon [1969] 1 Q.B. 577
•
•
•
Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon [1969] 1 Q.B. 577
The rent of James Lannon‘s flat in Oakwood Court was
determined by a rent officer. The rent officer fixed what he
thought was fair rent. The Freshwater Group appealed to the rent
assessment committee.
The chairman of the rent assessment committee was John
Lannon, the son of James Lannon. He was a solicitor living in
another block of flats owned by the Freshwater Group. The flat in
which the chairman lived was Regency Lodge.
Whilst the bill of the Rent Act was going through Parliament,
John Lannon attended and addressed several meetings of the
tenants in Regency Lodge. The intention was to inform the
tenants what their legal position was likely to be under the new
law. There was a proposal to form a tenants‘ association to
represent the views of the tenants.
117
Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon [1969] 1 Q.B. 577
Lord Denning:
“…in considering whether there was a real likelihood of bias, the
court does not look at the mind of the justice himself or at the mind
of the chairman of the tribunal, or whoever it may be, who sits in a
judicial capacity. It does not look to see if there was a real likelihood
that he would, or did, in fact favour one side at the expense of the
other. The court looks at the impression which would be given to
other people. Even if he was as impartial as could be, nevertheless if
right-minded persons would think that, in the circumstances, there
was a real likelihood of bias on his part, then he should not sit. And if
he does sit, his decision cannot stand.
If he was himself a tenant in difference with his landlord about the
rent of his flat, he clearly ought not to sit on a case against the
selfsame landlord, also about the rent of a flat, albeit another flat. In
this case he was not a tenant, but the son of a tenant. But that
makes no difference. No reasonable man would draw any
distinction between him and his father, seeing he was living with
him and assisting him with his case. “
119
•
•
•
•
•
•
After the Act was passed, John Lannon was appointed to be one
of the panel of lawyer members under the Act.
After he was appointed to the panel, John Lannon‘s firm acted for
some of the tenants in Regency Lodge in their negotiations with
the Freshwater Group.
In addition, after he was appointed to the panel, Mr. John Lannon
assisted his father in his dealings with the Freshwater Group
about the rent of another flat in Regency Lodge.
That committee made drastic reductions in the rents. They put the
fair rent at figures which were far lower than the contractual
rents, and lower than James Lannon had offered.
The Freshwater Group applied for judicial review against the
decision of the rent assessment committee.
Any Bias
118
Right to Unbiased Decision:
Causes of prejudice:
•  pre-conceived view
120
Secretary for Justice v. Li Chau Wing
HCAL 143/2004)
Secretary for Justice v. Li Chau Wing
HCAL 143/2004)
•  Lee was charged with dangerous driving causing death,
contrary to s.36(1) of the Road Traffic Ordinance, Cap.374.
The case was to be heard by Judge Thomas.
•  At a Criminal Law conference held the weekend before the
commencement of trial, Judge Thomas in the course of a
social conversation spoke causally to Shiu, a member of the
Prosecutions Division of the Department of Justice.
•  The conversation between Shiu and Judge Thomas turned to
matters of general legal interest in respect of road traffic.
Shiu said that, in his opinion, the penalties for dangerous
driving causing death were too low. Judge Thomas did not
comment on that opinion.
•  Shortly thereafter, Judge Thomas said that he was dealing
with a motor accident case. He then said, in his opinion, the
offence of careless driving was one he did not believe in or
that it was an offence which he thought to be of little
efficacy.
•  When Judge Thomas was asked by Shiu why he thought the
offence of careless driving had no efficacy; that is, no
capacity to produce its intended results, Judge Thomas said
something about it being an insurance matter.
•  After the commencement of the trial, an application was
made by the prosecution for Judge Thomas to recuse himself
from hearing the matter on the basis of Judge Thomas‘s
remarks made in the course of a social conversation at the
conference held the weekend before the commencement of
trial.
•  Judge Thomas refused the application.
•  The prosecution applied for judicial review Judge Thomas‘s
decision.
•  Any Bias?
121
122
Secretary for Justice v. Li Chau Wing
HCAL 143/2004)
Decision of the Court of First Instance:
“In my judgment, I fail to see how any fair-minded observer
acquainted with the facts of this case could conclude that
the remarks of the judge, read in context, could possibly
give rise to any real perception of bias on his part.
The judge made no comments in favour of or against the
prosecution or the defence in the trial from which he has
been asked to recuse himself. His comments were of a
jurisprudential nature; to put it another way, they were
philosophical. They concerned not one of the parties and
what, directly or indirectly, the judge thought of their
cases but instead one of the possible offences. His
comments in respect of this possible offence were of a
general nature only; that is, they were totally unrelated to
any evidence to be given at trial.“
123
Right to Fair Hearing
124
Right to Fair Hearing
Right to Fair Hearing
•  different features: notice, disclosure of
materials, hearing, legal representation,
evidence, cross-examination, consultation(?)
•  Notice:
-informed of all charges
-how to frame the charge?
-reasonable time allowed to prepare
representation
125
Mohamed Yaqub Khan v. Attorney General
[1986] HKLR 922
Cons, V.-P.:
“…in cases where an officer can only be dismissed for
cause…the requirements of natural justice will depend
upon the reason which in fact underlies his dismissed. At
the very least, we would think he is entitled to know the
reason for his dismissal.
…we have come to the conclusion …to dismiss Mr. Khan
were matters of misconduct…we therefore conclude that in
the circumstances Mr. Khan ought to have been informed
of the contents of that memorandum and given the
opportunity to make representations in answer.“
127
126
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
•  T made a complaint to the Dental Council of Hong Kong
alleging an adulterous association by a dentist, Dr. N,
with his wife who was Dr. N‘s patient.
•  Under the Dentists Registration Ordinance (Cap. 156),
the question whether, for disciplinary purposes, a dentist
has been guilty of any unprofessional misconduct is to be
decided by the Dental Council, after an initial
consideration by its Preliminary Investigation Committee
(PIC).
•  The chairman of the PIC referred the complaint to the
PIC. The PIC invited Dr. N to give any explanation in
writing.
128
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
•  In the letter sent to Dr. N, it was stated:
“It is alleged that you, being a registered dentist, did in
and after April 1992, abuse your professional position in
order to further an improper, immoral, or indecent
association or to commit adultery with Mrs. Tam with
whom you stood in a professional relation; contrary to
Section 5 of the Warning Notice of the Dental Council
of Hong Kong Professional Discipline for the Guidance
of Registered Dentists.“
129
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
Warning Notice of the Dental Council of Hong
Kong Professional Discipline for the Guidance of
Registered Dentists“ issued by the Dental
Council:
“Section 5 Abuse of Professional Position in order
to further an improper association or commit
adultery
A dental practitioner who abuses his professional
position in order to further an improper, immoral, or
indecent association or to commit adultery with a
person with whom he stands in a professional
relationship may be subject to disciplinary
proceedings.“
131
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
Section 18(2), Dentists Registration Ordinance:
“unprofessional conduct“:
“an act or omission of a registered dentist which
would be reasonably regarded as disgraceful or
dishonourable by registered dentists of good repute
and competency.“
130
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
•  Dr. N explained that he had his first social encountering
T‘s wife about two months after his accepting her as his
patient. When she disclosed to him her marital problems,
he felt sympathy for her and their friendship gradually
developed. He confirmed that there had not been any
manipulation of his professional position and their
relationship was not all related to her treatment.
•  The PIC decided that there was no evidence to support
the claim that Dr. N had abused his professional position
to further an improper association or to commit adultery
with his patient and dismissed the complaint.
•  T applied for judicial review against the decision of PIC
not to refer the complaint to the Dental Council.
132
•  Any breach of the rule of fair hearing?
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
Nazareth, V.P., Court of Appeal:
“It can be clearly seen from the foregoing that s.5 is merely
an example of unprofessional conduct and was not
intended to specify exhaustively the only manner in which
indecent association or adultery with a patient could
constitute unprofessional conduct.
…it seems to me upon the wording and scheme of the
Ordinance and Regulations that the question of what so
constitutes unprofessional conduct is to be determined by
the Dental Council in the context of a disciplinary inquiry,
after considering the evidence in the individual case.“
Norman Eric Tomlin v The Preliminary Investigation
Committee of the Dental Council of Hong Kong [1996] 2
HKLR 133
Nazareth, V.P., Court of Appeal:
“…Plainly, therefore, the charge was a serious procedural error
which not only failed to accurately reflect the complaint but
introduced a wholly unjustified and potentially fatal obstacle. It is
apparent from the minutes that the PIC addressed the charge in the
way it was framed, i.e. constrained by the words “abuse your
professional position in order to further an improper, immoral, or
indecent association or to commit adultery“; and founded their
decision upon their view that there was no evidence to support such
abuse. The conclusion is inescapable that the actual complaint has
never been properly considered by the PIC. Nor is it possible to say
what conclusion they would have reached had they not regarded
themselves as constrained by the words mentioned. Plainly the
complaint should go back for proper consideration.“
133
134
Lam Sze Ming and Another v. Commissioner of Police
CACV 912/2000
Right to Fair Hearing
•  disclosure of materials
-materiality test: materials that are relevant,
materials that may raise a new issue that is not
apparent
-primary duty principle: disclose the material
which has been gathered in the course of
investigation
-objective: reasonable opportunity to present
one‘s case
135
•  Lam, Au and Lai, were police officers.
•  They were arrested together with Cheung and Kong in
an police action against illegal gambling. Lam was
charged with gambling in a gambling establishment.
•  No evidence was offered against Au and Lai for they
were willing to give evidence as persecution witnesses
against Cheung and Kong who were charged with more
serious gambling related offences.
•  Lam was acquitted and Cheung and Kong were
convicted.
•  Lam was then charged in the police disciplinary
proceedings that he had committed conduct calculated
to bring the Public Service into disrepute.
•  The conduct complained of was that he frequented the
premises for the purpose of unlawful gambling.
136
Lam Sze Ming and Another v. Commissioner of Police
CACV 912/2000
Lam Sze Ming and Another v. Commissioner of Police
CACV 912/2000
•  For the purpose of the disciplinary proceedings, Lam was
provided with the charge sheet; a list of witnesses, a list
of exhibits, statements made by Au and Lai to the police
during interrogation and a bundle of photographs.
•  However, the following documents were not provided:
(i) statements made by Au and Lai under caution at the
time of their arrest;
(ii) the transcript of court proceedings;
(iii) an immunity document and all negotiation relating
to negotiations between the prosecution and Au and Lai
were not released to Lam.
•  Lam was found guilty and was dismissed.
•  Lam applied for judicial review against the decision.
•  Must these documents be disclosed?
137
Decision of the Court of Appeal:
“The test to be applied in determining whether disclosure
should be made…material…(1) to be relevant or possibly
relevant to an issue in a case; (2) to raise or possibly
raise a new issue, whose existence is not apparent from
the evidence the prosecution proposes to use; (3) to hold
out a real (as opposed to fanciful) prospect of providing a
lead on evidence which goes to (1) or (2).
This is the ‘materiality test‘. The primary duty is to
disclose the material which has been gathered by the
prosecution in the course of its investigation. It does not
follow that only such material need be disclosed. There
may be other material.“
Lam Sze Ming and Another v. Commissioner of Police
CACV 912/2000
Lam Sze Ming and Another v. Commissioner of Police
CACV 912/2000
Decision of the Court of Appeal:
“…applying both the ‘materiality test‘ and the primary
duty principle to the documents not disclosed in this case,
I am satisfied, firstly, in relation to (ii) to (iii), that…failure
to disclose does not amount to a breach of natural justice
resulting in an unfair trial.…The District Court transcript
was made available in the sense that the applicants were
fully aware of its existence and were advised as to how
they could acquire a copy. The immunity documents
concerned only the District Court proceedings. The terms
of the witnesses‘ immunity in giving evidence against four
other defendants in different proceedings could not, in my
judgment, be of such relevance to the disciplinary
proceedings to the extent that a failure to disclose them
would or might result in justice not being done.“
Decision of the Court of Appeal:
“…in relation to (i) above, I am…satisfied that nondisclosure does not amount to a breach of natural justice
for the purpose of these proceedings…the applicants‘
complaint amounts to a failure by the Prosecutor to seek
out and collect material which did not form part of her
case. This was not her duty. It cannot be said, in this case,
that her failure to do something which she was under no
duty to do, amounts to unfair conduct or a breach of
natural justice.“
139
138
140
Chan Tak Shing v. Chief Executive of the HKSAR
CACV No. 270 of 1998
Right to Fair Hearing
•  hearing:
–  opportunity to make representation
-right to last word
–  oral or written?: oral hearing if evidence is
in dispute or credibility of witness is in
question
–  presence of all parties
141
•  Chan was ordered to retire from the civil
service by the Chief Executive on the basis of
section 12 of Public Service (Administration)
Order.
•  Chan applied for judicial review against the
decision of the Chief Executive.
•  Any breach of the rule of fair hearing?
142
Chan Tak Shing v. Chief Executive of the HKSAR
CACV No. 270 of 1998
Chan Tak Shing v. Chief Executive of the HKSAR
CACV No. 270 of 1998
Section 12 of Public Service (Administration) Order.
“The Chief Executive may, at any time if it is
represented to him that the retirement of an officer is
desirable in the public interest, call for a report from
the head of any department in which the officer has
served. The officer shall be informed of the grounds on
which his retirement is contemplated under this section
and be given an opportunity to make representations.“
Documents submitted to the Chief Executive:
(a) details of the robbery and police investigations;
(b) a letter from the Secretary for the Civil Service
to Chan, stating that consideration was being given
to requiring him to retire and explaining the reason;
(c) an answer from Chan containing his comments
and representations upon the letter denying his
alleged involvement in the robbery;
(d) an undated, un-addressed and unsigned
document headed “Comments on representation
by Chan.
143
144
Chan Tak Shing v. Chief Executive of the HKSAR
CACV No. 270 of 1998
Chan Tak Shing v. Chief Executive of the HKSAR
CACV No. 270 of 1998
Decision of the Court of Appeal:
“It is said for the officer that without first calling for such a
‘report‘ as is mentioned in section 12 the CE was not
entitled to require the officer to retire from the public
service….Section 12(2), properly construed, must be read
as follows:…if there is no such report, because the CE,
seeing no point in it, has not called for one, he (the CE)
may proceed on the basis of the representations made to
him alone.“
Decision of the Court of Appeal:
“Section 12 does appear to treat the officer as the one who has
the last word…the officer here was not given any opportunity
to consider the submission in reply, and so did not have the
last word…this was unfair. The CE had before him, in the form
of the submission in reply, a document calculated to work to the
prejudice of the officer‘s case, a document (whatever its
provenance) which the officer had not been shown and with the
content of which he was given no opportunity to deal. The fact
that the document contained no new ground of complaint
against the officer and no new facts makes no difference. Nor
does the fact that the officer knew perfectly well what was the
case made against him. No person with any power of
adjudication may hear evidence or (as here) ‘receive
representations from one side behind the back of the other‘.“
145
146
Lawe William Enterprises Ltd, Re an application for
judicial review [1990] HKLR 365
•
•
•
The Listing Division was established by the Hong Kong Stock
Exchange Ltd. to administer and supervise compliance with the
Exchange Listing Rules.
The requirements of the Exchange Listing Rules are designed to
ensure that investors have and can maintain confidence in listed
securities, and to afford additional assurance of their interest
beyond that available to them by law.
The Exchange Listing Rules provides that: “…the Listing
Committee reserves the right to suspend or cancel the listing of
the Company on the Exchange if: (1) the Listing Committee
considers there is insufficient public interest in the Company, e.g.
insufficient shares are in the hands of the public; (2) any of the
terms and conditions stated in these rules or the Listing
Agreement are not complied with; (3) the company becomes a
subsidiary of any other company; or (4) the Listing Committee,
in its absolute discretion, considers that the removal of the
Company from listing is in the interest of the public.“
147
Lawe William Enterprises Ltd, Re an application for
judicial review [1990] HKLR 365
•
•
•
•
On Investment Co. Ltd., was a public company. Trading in the
On Investment Co. Ltd.‘s shares on the Hong Kong Stock
Exchange Ltd. was suspended at its own request.
Ng obtained a controlling interest in the On Investment Co. Ltd
when he acquired 46.59% of the issued share capital.
The Hong Kong Stock Exchange Ltd. announced that the On
Investment Co. Ltd. was no longer suitable for listing because of
the size or nature of its existing businesses.
On Investment Co. Ltd. was notified that the listing of their
securities on the Exchange will be cancelled unless they have,
within six months from the date of the announcement, a business
which is able to satisfy the Exchange‘s normal requirements for
listing or have finalised proposals in writing which are acceptable
to the Exchange to acquire such a business.
148
Lawe William Enterprises Ltd, Re an application for
judicial review [1990] HKLR 365
•  Written proposals for the reactivation of the On
Investment Co. Ltd. were submitted by Ng to the Hong
Kong Stock Exchange Ltd. which set out the principal
activities of the company which included property
investment, other investment business and insurance
agency business.
•  Details of the proposed directors and various properties to
be injected by Ng were also supplied.
•  It was further stated that the On Investment Co. Ltd.
would seek new opportunities for business development in
related fields such as property construction and
management, the supply of materials and services to the
construction industry and the manufacture and distribution
of home and office furnishings and furniture.
Lawe William Enterprises Ltd, Re an application for
judicial review [1990] HKLR 365
•  The proposals for reactivation were considered by the
Listing Committee. The application was rejected and the
On Investment Co. Ltd. was informed by the Hong Kong
Stock Exchange Ltd. of the Listing Committee‘s decision
and that the On Investment Co. Ltd. would be de-listed.
•  The On Investment Co. Ltd. applied for judicial review
against the decision of the Listing Committee of the Hong
Kong Stock Exchange Ltd.
•  Any breach of the rule of fair hearing?
149
Lawe William Enterprises Ltd, Re an application for
judicial review [1990] HKLR 365
Decision of the Court of First Instance:
“As there is no statutory or contractual right for an oral
hearing I have to determine whether the failure by the
Listing Committee to hold an oral hearing amounts to a
breach of the rules of natural justice. Whilst the applicant
complained that it did not have an opportunity to put
forward further information to the Listing Committee, no
suggestion has been made as to what additional facts they
wished to bring to the Committee‘s notice...However, the
applicant, as I have said, put forward no reasons why an
oral hearing was necessary. In my judgment, there was no
necessity to grant an oral hearing so that there was no breach
of the rules of natural justice.“
151
150
Lam Kai Hing and Others v Hong Kong Housing
Authority MP No. 1923 of 1990
•  The Hong Kong Housing Authority served notices to
quit on the tenants of a factory estate pursuant to s
19(1)(b) of the Housing Ordinance (Cap 283).
•  The Authority had decided that the building was
beyond economic repair and needed to be
demolished.
•  Section 20 of the Ordinance gives a right of appeal to
the tenant who has received a notice to quit under s
19(1)(b). The Tenancy Appeals Committee
responsible for hearing the appeal may confirm,
amend, suspend or cancel the notice to quit.
•  Appeals were lodged by the tenants.
•  There was a hearing by the Tenancy Appeals
Committee.
152
Lam Kai Hing and Others v Hong Kong Housing
Authority MP No. 1923 of 1990
Lam Kai Hing and Others v Hong Kong Housing
Authority MP No. 1923 of 1990
•  The only paper placed before the Tenancy Appeals Committee
by the Housing Authority was Paper No AC9/90, a copy of
which was supplied to the tenants before the hearing.
•  This set out the background to the matter leading up to the
service of the notices to quit.
•  It made reference to a number of papers by other committees
of the Authority, in particular, Paper No MOC6/89, by the
Management and Operations Committee, Paper No BC68/89
by the Buildings Committee and Paper No CPC25/89, by the
Commercial Properties Committee. These other papers were
not placed before the Tenancy Appeals Committee. Paper No
AC9/90 also contained submissions by the Housing Authority
that the block was beyond economic repair and should be
demolished taking into account the age and structural
deficiency.
153
•  During the hearing, the Chairman of the Tenancy Appeals
Committee said that the Tenancy Appeals Committee would
not go into the details of the structural survey, etc. at the
hearing.
•  However, she could appreciate that, as public money was
involved, the cost of repairing a structurally deficient block
should be evaluated against the alternative of demolishing it.
•  The tenants were also seeking in the hearing, as an alternative,
a further grace period of one year before quitting their units.
•  After hearing the submission from the Housing Authority and
the tenants, the Tenancy Appeals Committee sat in a meeting
by itself to discuss the matters.
•  The Tenancy Appeals Committee initially agreed that, while
the notices to quit should be confirmed, the possibility of
granting a longer grace period for the affected tenants should
be explored.
Lam Kai Hing and Others v Hong Kong Housing
Authority MP No. 1923 of 1990
Lam Kai Hing and Others v Hong Kong Housing
Authority MP No. 1923 of 1990
•  On the invitation of the Tenancy Appeals Committee, relevant
Housing Department staff returned to the meeting.
•  The representative of the Housing Authority reiterated that the
assessment made of the structural condition in April 1989 was
such that a deadline should be set for evacuation.
•  One of the members of the Tenancy Appeals Committee added
that the Housing Department had, in its submission to the CPC
(Paper No CPC22/90), reaffirmed the risk of structural failure
and considered it imperative for this building to be cleared as
soon as possible.
•  After further deliberations, the Tenancy Appeals Committee
decided to confirm the notices to quit served on the tenants.
•  The tenants applied for judicial review against the decision of
the Tenancy Appeals Committee.
•  Any breach of the rules of fair hearing?
Decision of the Court of First Instance:
“In order to reach a decision on whether to confirm, amend, suspend or
cancel the notices to quit, the Tenancy Appeals Committee must examine
the reasons why the leases were being terminated by the notices to quit.
The requirement that a person exercising quasi-judicial functions must
base his decision on evidence means no more than it must be based upon
material which tends logically to show the existence or non-existence of
facts relevant to the issue to be determined, or to show the likelihood or
unlikelihood of the occurrence of some future event the occurrence of
which would be relevant. It means that he must not spin a coin or consult
an astrologer, but he may take into account any material which, as a
matter of reason, has some probative value in the sense mentioned above.
If it is capable of having any probative value, the weight to be attached to
it is a matter for the person to whom Parliament has entrusted the
responsibility of deciding the issue. The supervisory jurisdiction of the
High Court does not entitle it to usurp this responsibility and to
substitute its own view for his.
I am satisfied that there was no material of a probative value before the
Tenancy Appeals Committee to justify the conclusion that Block 1 was
156
beyond economic repair. “
155
154
Lam Kai Hing and Others v Hong Kong Housing
Authority MP No. 1923 of 1990
Decision of the Court of First Instance:
“I am satisfied that the Tenancy Appeals Committee did not reach a
final decision to confirm the notices to quit until after it had heard
further submissions in the absence of the tenants.
…Quite clearly, the tenants were deprived of the opportunity of
hearing and commenting on the further submissions of the
respondent. Further, the Paper No CPC22/90 referred to…was never
brought to the tenants‘ attention. The tenants may well have tried to
persuade the Tenancy Appeals Committee not to finalize their tentative
or initial decision to confirm the notices to quit but instead, to grant
them a suspension of the same for some period. They may or may not
have succeeded. That is not the point. The point is they were deprived
of the opportunity of hearing the further submissions and of being
heard thereon. They should have been given such an opportunity. Fair
play demands this. In my judgment, there was a clear breach of the
rules of natural justice which seriously flaws the decision made by
157
the Tenancy Appeals Committee.“
Right to Fair Hearing
•  legal representation
-no absolute denial
-Article 35 of the Basic Law is not applicable
-Article 10 of the Bill of Rights: applicable to
administrative bodies determining rights and
obligations in suits at law
-a matter of discretion: whether fairness demands
-factors to consider: seriousness of charges and penalty,
any point of law, capacity to
represent one‘s case, procedural
difficulty, time, fairness between
the decision maker and the person
affected
-proportionality in any procedural restrictions imposed
158
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
Art. 35 of the Basic Law:
“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.
Hong Kong residents shall have the right to
institute legal proceedings in the courts against
the acts of the executive authorities and their
personnel.“
159
Decision of the Court of Final Appeal:
“Interpreted in the light of the Basic Law as a
whole, Art 35 only applies to courts of law, that is,
the courts exercising the independent judicial
power conferred on the Region by the Basic Law.
The Disciplinary Committee is not a court of law.
Art 35 therefore does not apply to it.“
160
Lam Siu Po v. Commissioner of Police
FACV No. 9 of 2008
Lam Siu Po v. Commissioner of Police
FACV No. 9 of 2008
•  A police constable, Lam, engaged in stock market
dealings. He lost heavily, found himself deeply in debt,
petitioned for his own bankruptcy and was adjudicated
bankrupt in September 2000.
•  Consequently he was charged in December that year
with a disciplinary offence.
•  There were two disciplinary hearings.
•  The first hearing ended in Lam being convicted on 2
March 2001. But that conviction was set aside by the
Force Discipline Officer for procedural irregularity.
•  The police officer who had represented the appellant at
the first hearing was not available at the second hearing,
which commenced on 14 December 2001.
161
•  That police officer was replaced by Lam‘s another
representative. But Lam lost confidence in that
replacement. And after being told that he could not
engage a legal practitioner to defend him, the appellant
appeared in person at the second hearing.
•  Regulation 9(11) and (12) of the Police (Discipline)
Regulations provided that:
“(11) A defaulter may be represented by –
(a) an inspector or other junior police officer of his
choice; or (b) any other police officer of his choice who
is qualified as a barrister or solicitor,
who may conduct the defence on his behalf.
(12) Subject to paragraph (11), no barrister or solicitor
may appear on behalf of the defaulter.“
162
Lam Siu Po v. Commissioner of Police
FACV No. 9 of 2008
Lam Siu Po v. Commissioner of Police
FACV No. 9 of 2008
•  O n 2 7 M a r c h 2 0 0 2 L a m w a s a g a i n
convicted. The penalty imposed on him was
compulsory retirement with deferred benefits.
•  Whether the absolute bar to legal
representation is constitutional?
163
•  Article 10 of Bill of Rights provides that:
“All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and
impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals,
public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice
the interests of justice; but any judgment rendered in a criminal
case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.“
164
Lam Siu Po v. Commissioner of Police
FACV No. 9 of 2008
Lam Siu Po v. Commissioner of Police
FACV No. 9 of 2008
Decision of the Court of Final Appeal:
“The fair hearing clause of art.10 of the Bill of Rights
guarantees the fairness of the hearings to which it
applies. Whether it applies to disciplinary proceedings
depends on whether such proceedings are
determinations of rights and obligations in suits at
law within its meaning.
If they are, then the fairness of such proceedings is
secure. Let it be remembered that fairness does not
always carry a right to be legally represented. It only
carries a right to be legally represented when denying
that right would be unfair. The rights typically
involved in disciplinary proceedings are important
ones extending to the right to remain in a profession,
service or occupation.“
165
Decision of the Court of Final Appeal:
“In my view, disciplinary proceedings – whether in respect
of professions, disciplined services or occupations – are
determinations of rights and obligations in suits at law
within the meaning of art.10.
As a bar to legal representation at defaulter hearings no
matter what the circumstance, the reg.9(11) and (12) bar
was inconsistent with the fair hearing clause of art.10 of
the Bill of Rights. Accordingly the reg.9(11) and (12) bar
was repealed…Legal representation at defaulter hearings is
now a matter of discretion. Whether a defaulter should be
permitted to be legally represented depends on whether
fairness so requires in all the circumstances. That is
primarily for the disciplinary tribunal to assess. And no
court would disturb such an assessment except for plainly
compelling reasons.“
166
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
•  NW is a company listed on the stock exchange operated by
the Stock Exchange HK (SEHK).
•  SEHK‘s Board has arranged for its functions and powers,
including operation and enforcement of the Listing Rules, to
be discharged by a committee known as the Listing
Committee.
•  The Listing Committee has in turn arranged for certain
functions to be discharged by the Listing Division. Thus, the
Listing Division administers and enforces the Listing Rules,
its duties including the investigation and pursuit of
disciplinary matters.
•  Where the Listing Division believes that an infringement
has occurred, it reports to the Listing Committee which,
when sitting in a disciplinary capacity, comprises a subcommittee (Disciplinary Committee) with a quorum of five
members, all drawn from the Listing Committee.
•  As a condition of being allowed to trade their
shares on the Stock Exchange, issuing
companies must enter into an agreement with
SEHK, known as a Listing Agreement which sets
out certain covenants, including an undertaking
to comply with the Listing Rules. NW entered
into such an agreement.
•  The Listing Division made a report to the Listing
Committee that NW had breached certain
obligations to the Stock Exchange and
recommended to commence disciplinary
proceedings against NW.
167
168
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
•  Before the disciplinary hearing commenced, the
chairman of the Disciplinary Committee gave the
procedural direction that “Legal advisers will not be
permitted to address the [Disciplinary] Committee
(whether in respect of oral submissions, the examination
of witnesses of fact or otherwise).“
•  Any breach of the rule of fair hearing?
169
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
Decision of the Court of Final Appeal:
“It is obviously true that the judicial review application was launched
at a very early stage in the disciplinary proceedings.
In my view, it was perfectly within the chairman‘s discretion to take
this wait-and-see position without any necessary infringement of the
principles of fairness resulting. In leaving open the question of
counsel examining witnesses, he did not exclude that course. He was
merely deferring his decision until the issues and scope of the
proceedings were better defined. If and when notice is given of the
witnesses to be called, with disclosure of the substance of their
evidence, the respondents could apply (possibly with support from the
Listing Division, in the light of what they have previously said) for
them to be dealt with by counsel, stating the grounds relied on. Of
course if in future, the chairman or the Disciplinary Committee should
give directions that are incompatible with the principles of fairness
there would be grounds for judicial review to be initiated at an
appropriate stage.“
171
The Stock Exchange of Hong Kong Ltd v New World
Development Co Ltd FACV22/2005
Decision of the Court of Final Appeal:
“…there is no absolute right to have counsel address the
tribunal or to question witnesses, any such entitlement
depending on whether such procedures are required as a matter
of fairness. The matters [to be considered] are: the seriousness
of the charge and potential penalty; whether any points of law
are likely to arise; the capacity of the individual to present his
own case; procedural difficulties; the need for reasonable
speed in making the adjudication; and the need for fairness
among the individuals concerned…no list of such factors can
be comprehensive. The common law principles of fairness
operate flexibly, requiring the tribunal to respond reasonably to
the requirements of fairness arising in each case, balancing any
competing interests and considering what, if any, limits may
proportionately be imposed on legal representation in
170
consequence.“
Right to Fair Hearing
•  Evidence
-burden of proof: presumption that statutory duties
are duly and properly performed (See section 38, 39,
40, 41, 43 of Interpretation and General Clauses
Ordinance , Cap. 1)
-standard of proof:
-balance of probability
-strength of evidence
-admissibility of evidence
172
A Solicitor v. The Law Society of Hong Kong
FACV No. 24 of 2007
A Solicitor v. The Law Society of Hong Kong
FACV No. 24 of 2007
•  T, a solicitor was admitted in 1992. For a time thereafter
he practised as a consultant. Then in October 1997 he
established his own firm as sole proprietor. Consequent
upon an application made by the Law Society in June
1999, he appeared before the Solicitors Disciplinary
Tribunal on eight complaints of professional misconduct.
•  The Tribunal found all eight complaints proved. As to the
standard of proof, the Tribunal said that it applied “the
civil standard albeit with the higher degree of
probability commensurate with the gravity of the
allegations”.
Decision of the Court of Final Appeal:
“…the standard of proof for disciplinary proceedings in
Hong Kong is a preponderance of probability….The more
serious the act or omission alleged, the more inherently
improbable must it be regarded. And the more inherently
improbable it is regarded, the more compelling will be the
evidence needed to prove it on a preponderance of
probability. If that is properly appreciated and applied in a
fair-minded manner, it will provide an appropriate approach
to proof in disciplinary proceedings. Such an approach will
be duly conducive to serving the public interest by
maintaining standards within the professions and the
services while, at the same time, protecting their members
174
from unjust condemnation.”
173
Hui Wei Lee v The Medical Council of Hong Kong
CACV114/1993
•  Hui, a registered medical practitioner, had a charge of
misconduct in a professional respect found proved against
her by the Medical Council. She was removed from the
register for a period of 18 months.
•  An undercover woman detective police constable, Yu, gave
evidence that, at Hui‘s clinic, on the occasion of the last of
her three visits to that clinic, Hui agreed to perform an
illegal abortion on her for $2,000, and had gone so far as to
instruct her to lie down on a bed for her to be anesthetized
for that abortion. Hui denied agreeing to perform an
abortion on Yu. Her reason for asking Yu to lie on the bed
was “trying to cheat her into permitting me to try to find out
what was wrong with her ...“.
•  During the disciplinary hearing, the Medical Council
excluded evidence put forward by Hui.
175
Hui Wei Lee v The Medical Council of Hong Kong
CACV114/1993
•
•
•
•
•
•
The evidence, which was excluded, was of telephone
conversations between Hui and two doctors, one of them a
colleague who used the clinic and the other a surgeon to whom
she from time to time referred patients.
Their testimony, it was said, would have been of telephone
conversations with Hui after Yu‘s second visit to Hui‘s clinic but
before the last one.
They would say that Hui had told them that she had a strange
patient whom she suspected was not really pregnant but might
have a psychological problem, and that she intended to induce
her to submit to a physical examination with a view to seeing
what the real problem was.
Apart from the testimony of these two, the excluded evidence
would have included Hui‘s own evidence of the conversations.
Hui applied for judicial review against the decision of the
Medical Council.
Any breach of the rule of fair hearing?
176
Hui Wei Lee v The Medical Council of Hong Kong
CACV114/1993
Decision of the Court of Appeal:
“It seems to be perfectly legitimate to take the view - and indeed it may be
inevitable to take the view - that a doctor, in the management of his or her
patients, will sometimes consult colleagues. The excluded evidence was to
be a part of the explanation which the appellant was offering for rather
strange conduct on her part, which certainly called for an explanation. What
passed between her and her colleagues in regard to WDPC Leung would be
a part of a course of dealings. And what passed between her and WDPC
Leung was likewise a part of that course of dealings. The whole course of
dealings constituted the res gestae here: in other words, the relevant set of
events. In the circumstances, the evidence which was excluded was
admissible as part of the res gestae. Its exclusion was therefore wrong in
law.
Now, if evidence which was wrongly excluded was incapable of making any
difference to the result, then of course its exclusion would not affect the
result. But it seems to me quite impossible to say that this evidence could
not have made any difference to the result. …Therefore, its wrongful
exclusion is fatal to the Council‘s finding against the appellant and to the
order made against her pursuant to that finding. “
177
Ngai Kin Wah, Re MP2911 of 1985
•
•
•
•
•
•
•
Right to Fair Hearing
•  cross-examination
-cross-examination should be allowed if the
credit of the witness is in issue
178
Ngai Kin Wah, Re MP2911 of 1985
Ngai was a customs officer. He was alleged to have obtained the
release of certain valuable goods by requesting another customs
officer, Kwok, to stamp two release forms whilst off-duty bearing
the purported signature of a senior inspector, Yu.
Ngai was charged with the offence of prejudicing the good order
and discipline of the service and appeared before the disciplinary
tribunal of the Customs and Excise Department.
The prosecution did not called Yu to give evidence.
The prosecutor was allowed to put leading questions to Kwok.
Although Kwok‘s statements had been given to Ngai, the
adjudicator prevented Ngai from cross-examining Kwok on his
statements. Ngai was only allowed to ask questions to what
Kwok had said in the examination-in-chief.
At the end of the prosecution evidence Ngai called his witnesses,
but declined to give evidence himself.
The adjudicator, then, himself called a senior inspector, Lee, to
give expert evidence on the proper processing of shipment
release forms by customs officers.
179
•  The adjudicator did not allow Ngai or the prosecution
to question Lee, assuring Ngai that the evidence would
not be admitted against him.
•  At the conclusion of the hearing the adjudicator said
that on the whole the evidence substantiated the charge
and that at no stage in the proceedings had Ngai
denied the allegation in respect of the two release
forms.
•  He also stated that the evidence of Lee was very
informative and useful in his deliberation of the case.
•  Accordingly, he found Ngai‘s conduct highly improper
and the charge made out.
•  Ngai was dismissed from the service as a result.
•  Ngai applied for judicial review of the decision of the
adjudicator.
•  Any breach of the rule of fair hearing?
180
Ngai Kin Wah, Re MP2911 of 1985
Decision of the Court:
“The applicant complains that the prosecutor was allowed to put
leading questions to Mr Kwok…But I do not consider that this
resulted in any unfairness. This unfortunate method of adducing
evidence did not affect the essential issues of the case and, in any
event, would merely go to the reliability or weight to be given to
such evidence…the…reason for calling Inspector Lee as a witness
was to prove that the alleged conduct of the applicant was
‘improper‘. On that aspect of his evidence alone, the adjudicator
should have permitted cross-examination of Inspector Lee.
…complaint is made of the adjudicator's refusal to allow the
applicant to cross-examine Kwok Kong-wing with regard to his
statement…it deprived the applicant of an opportunity to
undermine the credibility of Kwok Kong-wing by bringing out
inconsistencies and possible contradictions between his evidence.”
Right to Fair Hearing
•  Flexible: the more serious is the nature of the
interest affected by the decision, the higher
should be the degree of fairness
181
182
Secretary for Security v. Sakthevel Prabakar
FACV No. 16 of 2003
Secretary for Security v. Sakthevel Prabakar
FACV No. 16 of 2003
•  Prabakar is a national of Sri Lanka and arrived in Hong Kong.
•  The Director of Immigration served on Prabakar a notice that a
deportation order against him back to Sri Lanka was being
considered in accordance with section 20 of the Immigration
Ordinance.
•  Prabakar wrote to the Director of Immigration requesting the
Director to consider his case favourably. In the letter, he gave
details to justify his fear of torture if returned to Sri Lanka.
•  He sought refugee status from the United Nations High
Commissioner for Refugees but was rejected. No explanation was
provided.
•  The Secretary for Security made the deportation order against
Prabakar. Both the Director and the Secretary had not given any
consideration as to whether Prabakar’s claim that he would be
subjected to torture if returned was well-founded. Instead, they
relied wholly on UNHCR’s unexplained refusal of refugee status.
•  Prabakar applied for judicial review to challenge the decision of the
Secretary.
Decision of the Court of Final Appeal:
“To him (a claimant under the Convention Against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment), life and limb are in
jeopardy and his fundamental human right not to be
subjected to torture is involved. Accordingly, high
standards of fairness must be demanded in the making
of such a determination.”
183
184
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
•  Following the decision of the CFA in Prabakar, the
Department of Immigration established a procedure for
the consideration of claims under the provisions of the
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, that had been made
at that time, or might be made in the future.
•  The new scheme was under challenge in this application
of judicial review by torture claimants.
•  Any breach of the rule of fair hearing?
ISSUES:
(a)  Whether it is procedurally unfair for the Immigration
Department, pursuant to a blanket policy, to have
declined to permit lawyers to be present during the
completion of a questionnaire or the conduct of
interviews that are part of the screening process?
(b)  Whether it is procedurally unfair for the Immigration
Department, pursuant to a blanket policy, to have
declined to provide FB with legal representation
during the screening process?
(c)  Whether it is procedurally unfair for the person making
the Convention determination (the decision-maker), is
a different person to that conducting the interviews?
185
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
ISSUES:
(d) Whether it is procedurally unfair for the persons
conducting interviews, and making Convention
determinations, or considering and deciding upon
appeals, are insufficiently guided or instructed in the
nature of Convention screening and decision-making?
(e) Whether it is procedurally unfair for the conducting of
Convention screening interviews by officers of the
Department, which Department is duty-bound to
enforce and implement the immigration policies of the
Government of the HKSARG, raises an inherent
conflict of interest, giving rise to a lack of impartiality
and independence on the part of interviewers and
decision-makers?
187
186
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
ISSUES:
(f) Whether it is procedurally unfair for the failure to
provide for an oral hearing at the petition (appeal)
stage, following the rejection of a claim?
(g) Whether it is procedurally unfair for the failure of
the Secretary to give reasons for the refusal of a
petition?
188
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
Decision of the Court of First Instance:
“By applying a blanket policy of denial of legal representation
to Convention claimants, and only allowing ad hoc exceptions,
the Respondents have applied an unlawful policy that does not
meet the high standards of fairness required…I have no doubt
at all that the seriousness and complexity of the issues to be
considered are such that a Convention claimant ought to have
access to legal advice throughout the process.
…where a Convention claimant is otherwise unable to pay for
his legal assistance, by denying free legal assistance, whether
it be through the Duty Lawyer Scheme, or the Legal Aid
Department, the Respondents had effectively denied the
claimant the right to that legal assistance, and have set in
place an unfair policy which fails to achieve the required high
standard of fairness.”
Decision of the Court of First Instance:
“By setting in place a system where the decision on the claim is not
made by the examining officer but by some other more senior
Immigration Officers, two or three steps removed from the
examining officer, the Respondents have established an inherently
unfair system of dealing with Convention claims.
If the examining officer is not the decision-maker, then the decisionmaker himself must be demonstrated to have received sufficient
training in order to be able to make an informed decision. There is
no evidence that the decision-makers have received appropriate
training.
Consequently, I hold that so long as the examining officer is not the
decision-maker and there is no training in respect of the decisionmaker, the system put in place by the Respondents does not meet the
high standards of fairness required.”
189
190
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
FB and others v. Director of Immigration and Secretary
for Security HCAL 51, 105, 106, 107, 125, 126 of 2007
Decision of the Court of First Instance:
“I am not satisfied that the Applicants’ evidence establishes systemic
bias to the extent that I can say, on the balance of probabilities, that
there is a real risk of unlawful bias on the part of either the examining
officers or the decision-makers, or an unlawful conflict of interest.
In my view that is no basis to deny an oral hearing. The petitioner is
perfectly entitled to say…in support of his petition, that inappropriate
weight has been accorded to some aspect of the evidence by the
decision-maker, or that the decision-maker has rejected the petitioner’s
credit for in appropriate reasons. These are grounds which do not
require additional material to be presented. They are matters which
may well be argued in an oral hearing…by establishing a system in
which a petitioner is denied both an oral hearing in respect of his
petition and the right to legal representation in the oral hearing, the
system does not reach a high standard of fairness.”
Decision of the Court of First Instance:
“I am satisfied that both the high standards of fairness
required in the assessment of Convention claims, and the
rules of natural justice, require that the Secretary in
dealing with a petition must give adequate reasons for that
decision.”
191
192
Right to Fair Hearing
Right to Fair Hearing
•  Consultation
-What is proper consultation?
•  undertaken at a time when proposals are still
at a formative stage;
•  sufficient reasons for the proposal must be
given to allow those consulted to give
intelligent consideration and response;
•  adequate time must be given for consideration
and response
•  the product of consultation must be
conscientiously taken into account when the
ultimate decision is taken.
•  Consultation
-Any right to be consulted?
-statutory
-common law ?
193
West Kowloon Cultural District Authority
Ordinance, Cap. 601
194
Council of Civil Service Unions v. Minister for
the Civil Services [1985] A.C. 374
Section 19 Public Consultation:
“Without prejudice to section 21(3)(a), 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.”
195
196
•
•
•
Council of Civil Service Unions v. Minister for
the Civil Services [1985] A.C. 374
Government Communications Headquarters ("GCHQ") was a
branch of the public service under the Foreign and
Commonwealth Office, the main functions of which are to ensure
the security of the United Kingdom military and official
communications and to provide signals intelligence for the
Government.
Since 1947, when GCHQ was established in its present form, all
the staff employed there have been permitted, and indeed
encouraged, to belong to national trade unions, and most of them
did so. Six unions were represented at GCHQ. Prior consultation
had been conducted when conditions of service were to be
significantly altered.
In 1984, the Secretary of State for Foreign and Commonwealth
Affairs announced in the House of Commons that the
Government had decided to introduce with immediate effect new
conditions of service for staff at GCHQ, the effect of which was
that they would no longer be permitted to belong to national trade
unions but would be permitted to belong only to a departmental
staff association approved by the director of GCHQ.
197
Council of Civil Service Unions v. Minister for
the Civil Services [1985] A.C. 374
•
•
The mechanism on which the Minister for the Civil Service relied
to alter the terms and conditions of service at GCHQ was an
"instruction" issued by her under Article 4 of the Civil Service
Order in Council 1982. That article provides as follows:
"As regards Her Majesty's Home Civil Service - (a) the Minister
for the Civil Service may from time to time make regulations or
give instructions - ... (ii) for controlling the conduct of the
service, and providing for the classification of all persons
employed therein and ... the conditions of service of all such
persons; ..."
Any breach of the rule of fair hearing?
198
Council of Civil Service Unions v. Minister for
the Civil Services [1985] A.C. 374
Council of Civil Service Unions v. Minister for
the Civil Services [1985] A.C. 374
LORD FRASER OF TULLYBELTON
“But even where a person claiming some benefit or privilege has no legal
right to it, as a matter of private law, he may have a legitimate expectation
of receiving the benefit or privilege, and, if so, the courts will protect his
expectation by judicial review as a matter of public law. This subject has
been fully explained by my noble and learned friend, Lord Diplock, in
O‘Reilly v. Mackman [1983] 2 A.C. 237 and I need not repeat what he has
so recently said. Legitimate, or reasonable, expectation may arise either
from an express promise given on behalf of a public authority or from the
existence of a regular practice which the claimant can reasonably expect
to continue. Examples of the former type of expectation are Reg. v.
Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators’
Association [1972] 2 Q.B. 299 and Attorney-General of Hong Kong v. Ng
Yuen Shiu [1983] 2 A.C. 629. (I agree with Lord Diplock‘s view, expressed
in the speech in this appeal, that ‘legitimate’ is to be preferred to
‘reasonable’ in this context. I was responsible for using the word
‘reasonable’ for the reason explained in Ng Yuen Shiu, but it was intended
only to be exegetical of ‘legitimate .)
LORD FRASER OF TULLYBELTON
“The submission on behalf of the appellants is that the present case is
of the latter type. The test of that is whether the practice of prior
consultation of the staff on significant changes in their conditions
of service was so well established by 1983 that it would be unfair or
inconsistent with good administration for the Government to depart
from the practice in this case. Legitimate expectations such as are
now under consideration will always relate to a benefit or privilege to
which the claimant has no right in private law, and it may even be to
one which conflicts with his private law rights. In the present case
the evidence shows that, ever since GCHQ began in 1947, prior
consultation has been the invariable rule when conditions of
service were to be significantly altered. Accordingly in my opinion if
there had been no question of national security involved, the
appellants would have had a legitimate expectation that the minister
would consult them before issuing the instruction of 22 December
1983.”
200
199
Chit Fai Motors Company Limited v. Commissioner for
Transport HCAL 146/2002; CACV142/2003
Chit Fai Motors Company Limited v. Commissioner for
Transport HCAL 146/2002; CACV142/2003
•  Chit Fai Co. is a commercial operator of public light buses.
It is licenced to operate its buses in terms of franchises
obtained in terms of the Public Bus Services Ordinance, Cap.
230. Two of its licenses (numbers 3686C and 9101C)
authorise Chit Fai Co. to operate services that feed the
Whampoa and Hung Hom areas of Kowloon. The licences
restrict the Chit Chit Fai Co. to specified routes at specified
times. They also state the fares that may be charged.
•  Not all public light bus services, however, need to obtain
franchises under the Public Bus Services Ordinance in order
to operate lawfully.
•  In terms of s.27 of the Road Traffic Ordinance, Cap.374, the
Commissioner may issue what are called passenger service
licences. Typically, they are limited in nature and, by way of
example, provide for the operation of services which carry
students, handicapped persons or employees of the operator.
•  In exercising his discretion under s.27 of the Road Traffic
Ordinance to issue these non-franchised licences, the
Commissioner is obliged to take into account a number of
factors. They include such matters as the level of service
already being provided, traffic conditions in the area, the
need for the particular service being sought and the intended
standard of any such service.
•  Since 1998, the KC Co. was given the permission to operate
free bus services to and from a large commercial
development called Whampoa Wonderworld (WWW) the
Whampoa and Hung Hom areas. A renewal was granted in
February 2001. On 13 April 2002, the Commissioner gave
permission to KC Co. to operate a free shuttle service from
WWW to Homantin and Chun See Mei Chuen in Tokwawan.
•  After an extension granted in July, the period of approval
was extended until 12 September 2002.
201
202
Chit Fai Motors Company Limited v. Commissioner for
Transport HCAL 146/2002; CACV142/2003
Chit Fai Motors Company Limited v. Commissioner for
Transport HCAL 146/2002; CACV142/2003
•  In or about July 2001 the Chit Fai Co. became aware of such a
non-franchised bus service operating in the Whampoa and Hung
Hom areas. The Chit Fai Co. complained to the Commissioner
that this service was operating along fixed routes and was
attracting passengers who queued for the service at designated bus
stops.
•  Chit Fai Co. regarded the operation of free bus services in Hung
Hom as materially and adversely affecting the routes it was
operating there. It had made substantial investment in terms of the
provision of buses and staff in order to be able to run a regular and
reliable service. It has been making complaints to the Transport
Department since at least July 2001 and there has been lengthy
correspondence on this matter.
•  The Commissioner agreed to investigate the matter, promising
that if evidence was obtained to support the Chit Fai Co.’s
allegations then enforcement action would be taken.
•  However, by the end of 2001 the Chit Fai Co. had not received
what it considered to be a satisfactory response from the
Commissioner.
•  In an attempt to resolve matters, the Commissioner arranged a
meeting at which the Chit Fai Co. and the sponsor of the nonfranchised shuttle service were both represented.
•  The meeting took place on 12 March 2002. The Chit Fai Co., the
Transport Department and the Hutchison Whampoa Properties
Limited attended the meeting.
•  Not until July 2002 was the Chit Fai Co. informed by the
Commissioner that permission had been granted to KC Co. for the
operation of the free bus services in the area and the permission
was granted on 13 April 2001.
•  Do you think there is a duty for the commissioner to consult the
Chit Co. before permission to operate free bus services was
granted to the KC Co.?
204
203
Chit Fai Motors Company Limited v. Commissioner for
Transport HCAL 146/2002; CACV142/2003
Chit Fai Motors Company Limited v. Commissioner for
Transport HCAL 146/2002; CACV142/2003
Decision of the Court of First Instance:
“…whether a duty did or did not lie on the Commissioner
to consult with the applicant prior to reaching a decision
whether or not to grant the licences in question.
I have deliberated whether I should say something of the
substantive issue.…If I found that there was a duty to
consult then I would, while not granting a formal
declaration, nevertheless for all practical purposes be
giving an advisory judgment that the basis is there in law
to compel the Commissioner to consult should the same or
a similar issue arise at any time in the future. But such an
advisory judgment is exactly what I have found would be
not appropriate in this case.”
Decision of the Court of First Instance:
“I must reject the Commissioner's contention that the meeting
constituted a sufficient exercise in consultation. It may have
allowed the Commissioner to spell out his policy; it may have
allowed the parties to state their positions. But consultation
implies that the person affected will be able to make
worthwhile representations. That cannot be done without
knowing at least the gist of the case to be answered and
without giving the opportunity for the representations to be
prepared and to be presented. There is no evidence that at the
meeting the applicant had any knowledge that formal licence
applications had been made by the operator of the shuttle
service. In the circumstances, it is difficult to see how, ignorant
of what was taking place, relevant representations could have
206
been prepared and presented.”
205
Lam Yuet Mei v. Permanent Secretary for Education and Manpower
of the Education and Manpower Bureau HCAL 36/2004)
Lam Yuet Mei v. Permanent Secretary for Education and Manpower
of the Education and Manpower Bureau HCAL 36/2004)
•  Kin Tak Public School (the School) is a rural school
situated at Lin Tong Mei Village in Sheung Shui, New
Territories.
•  In the school year of 2002/03, it did not have any
primary one class because there was insufficient
number of student intake and no government grant was
allocated for operating primary one class.
•  In the school year of 2003/04, the School also did not
operate any primary one class.
•  The Primary One Admission (POA) system is operated
by the Education and Manpower Bureau (EMB). The
EMB adopted a policy to close down by phases those
under-enrolled and high costs primary schools.
•  On 4 July 2002, the EMB decided that the School would
be excluded from the POA School List for 2003/04. 207
•  In various occasions before 4 July 2002, officials of the
EMB informally mentioned to the school management
including the outgoing principal and the supervisor of
the School of the Education Department’s intention to
exclude the School from the POA 2003 School List.
•  No objection was received from the school management
before the decision was made.
•  In September 2002, the new principal of the School, Mr
Fong, became aware that the School was not included in
the POA 2003 School List.
•  Mr Fong on behalf of the School wrote to the EMB
requesting for the School to be put back onto the POA
School List and to be allowed to recruit primary one
students.
208
Lam Yuet Mei v. Permanent Secretary for Education and Manpower
of the Education and Manpower Bureau HCAL 36/2004)
Lam Yuet Mei v. Permanent Secretary for Education and Manpower
of the Education and Manpower Bureau HCAL 36/2004)
•  By a letter dated 27 September 2002, the Director of
Education, the School’s request was refused.
•  On 2 November 2003, the EMB officers met with Mr
Fong and two other school managers. Almost all parents
of all the students were present.
•  Mr Fong, the school managers and all the parents
present requested the EMB to allow the School to
continue operation until the last class of students had
graduated.
•  By a letter dated 10 December 2003, the Secretary for
Education and Manpower gave notice to the School that
the EMB would cease to provide grants to the School as
from 1 September 2004.
•  Lam is the mother of three children. Her eldest
daughter was a student in the School, studying primary 3
in the school year of 2003/04. Her second daughter
started primary one in the school year of 2002/03. Her
youngest son was due to start primary one in the school
year of 2004/05.
•  Lam’s family lives near the School. Lam wished to have
her son enrol with the School in the school year
2004/05.
•  Lam challenged the decision made in July 2002
removing the name of the School POA School List for
the 2003/04 school year thereby terminating the School's
right to recruit primary one students on the ground that
there had been no or no proper consultation before it
was made.
210
•  Any duty to consult?
209
Lam Yuet Mei v. Permanent Secretary for Education and Manpower
of the Education and Manpower Bureau HCAL 36/2004)
Lam Yuet Mei v. Permanent Secretary for Education and Manpower
of the Education and Manpower Bureau HCAL 36/2004)
Decision of the Court of First Instance:
“For any consultation to be proper, it must be undertaken at a time
when proposals are still at a formative stage; sufficient reasons for
the proposal must be given to allow those consulted to give
intelligent consideration and response; adequate time must be
given for consideration and response; and the product of
consultation must be conscientiously taken into account when the
ultimate decision is taken.
I am of the view that, to the extent that the School is affected by
and has a legitimate interest in the decision to exclude it from the
POA 2003 School List and the POA exercise, the School ought in
the interests of fairness to have been consulted…In the present
case, however, the steps taken by the Education Department before
the decision was made in July 2002 to exclude the School from the
POA 2003 School List hardly met the criteria…The School had not
been afforded a proper opportunity to take a considered view and
to make representations before the decision was taken.”
Decision of the Court of First Instance:
“Notwithstanding this, I consider that the applicant's challenge…
cannot succeed…in considering whether the requirements of fairness
have been met in this case, the Court should consider whether the
overall procedure is a fair one and in the light of the purposes and
objectives of consultation. When approaching the first decision on the
broad consideration of fairness, the court should also have regard to
the conduct of the Department since September 2002 and leading to
the decision in December 2002 to maintain the July 2002 decision.
The School was afforded an opportunity to make representations to
the Department on and to draw to its attention, information about the
School and its students, and the perceived impact of the decision upon
the School and parents and students living in the village. Although in
the end it decided to maintain its earlier decision, the Department had
been prepared to re-consider its decision…this was a round of
genuine and fair consultation…having regard to the process as a
whole, it cannot be said that the requirements of fairness has not been
attained.”
211
212
Right to Reason
Right to Reason
213
Right to Reason
Benefits of giving reason:
“First, it would impose desirable intellectual discipline and
concentrate attention on the relevant issues. It would thus assist
in ensuring that any decision is made on proper grounds and
contribute to the effective disposal by the Tribunal of its work.
Secondly, reasons would assist in demonstrating to the parties
that the Tribunal has carried out its task properly and would
enable them to decide on the appropriate course of action in the
case at hand, including whether to appeal or apply for judicial
review. It would also provide guidance in the future to the
community and persons concerned in this area. Publishers as
well as the law enforcement and prosecuting authorities would
have a better understanding of the standards as applied by the
Tribunal and would be in a better position to make their own
decisions accordingly.“
(Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority FACC No. 1
of 1998)
214
Right to Reason
Benefits of giving reason:
“Thirdly, the reasons given by the Tribunal will promote
and enhance consistency in its decision making and assist
the law enforcement and prosecuting authorities. I would
observe that broad consistency in approach is important.
Fourthly, the giving of reasons would demonstrate to the
community that the Tribunal is functioning properly and this
would engender public confidence.“
(Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority FACC
No. 1 of 1998)
215
Statutory provision requiring reason be given:
Building Ordinance, Cap. 123
s.8E Building Authority to give reasons
“The Building Authority is is required to give
reasons in writing for a decision not to include,
retain or restore a contractor's name in a register at
the time of giving notice of the refusal.”
216
Lau Tak-pui v. Immigration Tribunal
[1992] 1 HKLR 374
Right to Reason
Any common law duty to give reason?
“…the law does not at present recognise a general
duty to give reasons. He found in the recent cases on
judicial review a perceptible trend towards an
insistence on greater openness of decision making
and spoke of a continuing momentum.“
(Oriental Daily Publisher Limited v. Commissioner
for Television and Entertainment Licensing
Authority FACC No. 1 of 1998)
217
Kempster, J.A., Court of Appeal:
“…the Hong Kong Immigration Tribunal was and is a fully judicial
and non-domestic body when hearing such appeals as those of Lau
Tak-pui, Lau Tak-mui and Yam Lai-san, that there was and is no right
of appeal from its decisions and that, as Mr McCoy on their behalf has
emphasized, it exercises powers affecting the liberty and residential
and citizenship rights of appellants pursuant to statutory provisions of
some complexity. These are special circumstances which, quite apart
from any implication to be derived from the wording of s. 53D, as to
which I express no opinion, require as a matter of fairness the
provision of outline reasons showing to what issues the Tribunal has
directed its mind and the evidence upon which it has based its
conclusions…Turning then to the adequacy of the reasons …all the
evidence germane to that issue had been considered. The conclusion
that the applicants had not been born in Hong Kong was the basis of
fact upon which the Tribunal determined that they did not enjoy a
right of abode in the Colony. The requirements…of natural justice,
being at least as stringent as any which may derive from the terms of
218
s. 53D, were met.”
Wong Wai Fan v Commissioner of Correctional
Services [2000] 1 HKLRD C2
Wong Wai Fan v Commissioner of Correctional
Services [2000] 1 HKLRD C2
•  W was an officer in the Correctional Services Department.
She was charged by the Commissioner of an offence
contrary to the Prison Rules.
•  The hearing was chaired by an adjudicating officer who
was a Superintendent in the Department and W was found
guilty as charged.
•  W lodged an appeal to the Commissioner. The
Commissioner directed that the whole of the evidence of
this case be taken again by another adjudicating officer
under Rule 255H of the Prison Rules.
•  The evidence was retaken in another hearing.
•  The Commissioner was not present in the second hearing.
•  He later decided that the appeal be dismissed without
giving reasons.
•  Any duty to give reason? Was the reason adequate? 219
Decision of the Court of First Instance:
“…I think the decision must be quashed. It is the failure by the
Commissioner to give reasons for his decision. This ground has to be
considered in the light of the procedural impropriety that had occurred
in the second hearing.
there is no general or primary obligation upon domestic tribunals to
give reasons. However…the nature and circumstances of the
adjudication may indicate a necessity for giving reasons, in which
case the tribunal or the courts would readily imply a duty to give
reasons.
Reasons are required in this particular case because of the challenge
that had been made by the applicant in the second hearing. There were
procedural impropriety in the hearing. The Commissioner in his
decision must give reasons to show how he had dealt with these
matters when he concluded that the charge against the applicant was
proven.”
220
Right to Reason
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Adequacy of Reason:
“ …. the reasons given should show that the Tribunal has
addressed the substantial issues before it and show why
the Tribunal has come to its decision. There may not be
any need however to address every single issue. But the
reasons should show that the issues that arise for serious
consideration have been considered.
…. the reasons may not require great elaboration and
they may be brief.
….. reasons for a decision on a point of law should
usually set out the findings of fact, the point of law at
issue and the process of reasoning leading to the
conclusion.“
(Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998)
221
•  Oriental Daily News published various features
consisted of photographs which showed nudity of the
female body with the nipples obscured by opaque
squares and private part hidden from view by objects
held by the female.
•  Oriental Daily News was summoned to appear before
the magistrate on alleged offences of publishing indecent
articles without the safeguards of cover or packaging or
warning notice contrary to section 24 of the Control of
Obscene and Indecent Articles Ordinance (Cap. 390).
The magistrate referred the articles in question to the
Obscene Articles Tribunal for determination.
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
222
30 June 1996, A17, Oriental Daily
29 June 1996, A13, Oriental Daily
223
30 June 1996, A17. Oriental Daily
224
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Section 2 of the Control of Obscene and Indecent
Articles Ordinance provides that:
“(2) For the purposes of this Ordinance
… (b) a thing is indecent if by reason of indecency it
is not suitable to be published to a juvenile.
(3) For the purposes of subsection (2), …
“indecency“ (
) include violence (
),
depravity (
) and repulsiveness (
).“
Section 10 of the Control of Obscene and Indecent
Articles Ordinance provides that:
“(1) In determining whether an article is … indecent …a
Tribunal shall have regard to(a) standards of morality, decency and propriety that are
generally accepted by reasonable members of the
community…
(b) the dominant effect of an article …as a whole;
(c) in the case of an article, the persons or class of persons,
or age groups of persons, to or amongst whom the article is,
or is intended or is likely to be, published;…”
225
226
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
•  REASONS FOR DECISION of the Tribunal:
The Tribunal has considered all the submissions advanced by
Defence Counsel and has directed itself to section 2(2)(b) and
section 10(1) of Cap. 390. This Tribunal has also reminded itself
that the standard to be adopted by it is the standard followed in
criminal cases, namely, “proof beyond reasonable doubt“. This
Tribunal unanimously determined that all the articles in the present
two cases are indecent articles because :(a) each and every photograph in these two cases violates and
exceeds the standard of morality, decency and propriety that are
generally accepted by reasonable members of the community;
(b) the dominant effect of each and every photograph as a whole in
these two cases is indecent;
(c) by reason of indecency each and every photograph is not
suitable to be published to a juvenile.
•  Was the reason given an adequate one?
Decision of the Court of Final Appeal:
“…when deciding on questions of indecency or obscenity,
there may be cases where the contents of the articles in
question would virtually speak for themselves. In these
instances, the duty to give reasons could be discharged by
describing the contents without much more. Apart from
cases of this kind, a decision on indecency or obscenity
which merely recites the statutory guidelines in section 10
would not normally be adequate. Such statements would
in effect assert conclusions and would not reveal why the
Tribunal has come to such conclusions.”
227
228
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Decision of the Court of Final Appeal:
“In my view, the reasons given are inadequate to discharge the Tribunal's
duty to give reasons in the circumstances of this case. They are conclusions
rather than reasons. They do not show that the Tribunal has addressed the
issues raised and why it came to the conclusion of indecency. It was pointed
out to the Tribunal that the nipples had been blocked and the private part
covered and submitted that photographs similar to these are not uncommon
in public places and newspapers. In other words, this is relevant to
measuring community standards. Did the Tribunal reject this submission ?
Or if it accepted it, why did it conclude that the articles were indecent as
violating and exceeding community standards. It was submitted to the
Tribunal in effect that these are newsworthy items to inform our community
of others' cultures. What was the Tribunal's view on that submission ? It was
submitted that the articles in question were in an adult section of the
newspaper. Was this accepted or rejected? Did the Tribunal consider that for
a daily newspaper, there is no distinction between various parts of the
229
newspaper ?”
Oriental Daily Publisher Limited v. Commissioner for
Television and Entertainment Licensing Authority
FACC No. 1 of 1998
Decision of the Court of Final Appeal:
“We are here concerned with photographs of females with
the upper parts of their bodies naked with the nipples
obscured by applied photographic technique. Contrary to
the views expressed in the courts below, I do not consider
that the articles in question are obviously indecent and
virtually speak for themselves. In the circumstances of this
case, it was encumbent upon the Tribunal to explain why
they are considered indecent. I venture to suggest that if
these photographs are considered indecent, the Tribunal
would be coming close to holding that photographs of seminaked females are per se indecent according to community
standards. If that is the Tribunal’s reason, it should so
explain.”
230
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
•  Chen was born in Mainland China.
•  His mother was born in 1928.
•  He claimed that his mother, Madam Wan was an
indigenous villager of Shatin and lived there until about
1941 when she was separated from her family and taken
to the Mainland during the Japanese occupation of Hong
Kong.
•  He applied to the Director of Immigration for a certificate
of entitlement so that he can come to Hong Kong for
settlement as a child born to a parent who is a permanent
resident of Hong Kong.
•  His application was refused.
•  Several witnesses testified:
(i)  Madam Wan was asked a number of questions related to her
knowledge and understanding of the village and the nearby areas
in Shatin and her life during childhood
(ii)  Sister of Madam Wan gave evidence that Madam Wan was born
at home in Ma Liu Shui Village and she had helped to carry her
when she was small.
(iii)  Younger brother of Madam Wan gave evidence that they were
indigenous villagers and had been living in Ma Liu Shui village in
Shatin until being resettled to Fanling. He said Madam Wan was
with the family and had helped to look after him when he was
small.
(iv)  Cousin of Madam Wan, born in 1926 in Ma Liu Shui village, said
he was aware that Madam Wan was born at home and their two
families lived in the same house. He explained it was not
customary at the time to register the birth or to obtain birth
certificate. He said that Madam Wan went to the Mainland when
the Japanese came to Hong Kong.
232
231
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
•  The Tribunal gave reasons for its decision:
(1) The applicant was unable to adduce compelling
evidence to prove his claim that his mother was born in
Hong Kong, lived in Hong Kong during her childhood,
but was living in the Mainland from 1942 to 1974.
(2) The evidence of Wan Kam Lung, Wan Fook Ying and
Wan Yau was insufficient to prove that Madam Wan
was born in Hong Kong and lived in Hong Kong until
1942 when she returned to live in the Mainland.
•  Chen applied for judicial review to challenge the decision
of the Tribunal on the ground that the Tribunal failed to
give adequate reasons.
233
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
Decision of the Court of First Instance:
“In my view, the Tribunal had only given its conclusions on
the appeal, but had not explained the basis for the
conclusions and finding that Madam Wan only came to
Hong Kong in 1974.
In the first place, the Tribunal had not explained why the
evidence of Madam Wan’s siblings and cousin are
insufficient to prove the applicant’s claim. While it said
that the cousin did not give credible evidence, it did not
indicate the basis for the conclusion on his credibility. As
for Madam Wan’s sister and brother, the Tribunal did not
explain why it regarded their evidence as insufficient to
prove the claim. It is not known whether it was because the
Tribunal also doubted their credibility or because it had
reservation over the relevance or probative value of their
evidence.”
234
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
Decision of the Court of First Instance:
“Secondly, the Tribunal simply did not even mention the
evidence of Madam Wan herself…given the importance of
Madam Wan’s evidence to the appeal, the applicant is entitled to
know that the Tribunal had addressed its mind to her evidence
and had afforded it proper evaluation and assessment. Fairness
therefore requires the Tribunal to make express findings on her
credibility and evidence, and to explain the basis upon which it
reached its conclusion.
While I accept that there are cases in which the basis of the
Tribunal’s conclusion may be quite obvious such that it needs
not be expressly stated, this is not one of those cases. Madam
Wan was not cross-examined by the representative of the
Immigration Department. It was also not put to her and the other
witnesses that their evidence was untruthful, concocted or
mistaken.”
Decision of the Court of First Instance:
“Madam Wan, her sister, brother and cousin are all in their 70s and
80s. The sister and the cousin apparently do not enjoy good health.
They are testifying on matters that were more than half a century
ago. The absence of supporting documentation has to be considered
against the fact that in 1928, it was not customary or common to
register the birth, a fact that the Tribunal appeared to accept. On
taking a broad picture of the case, the basis of the Tribunal’s
conclusions is plainly not obvious to the applicant or at all.
Further, it has to be borne in mind that this is a case where the
applicant’s claim and the reliability and the credibility of the
witnesses falls to be assessed on a balance of probabilities. In my
view, there are at least two features in the evidence available before
the Tribunal that are highly relevant and important to an objective
assessment of the probabilities inherent in the applicant’s claim.”
235
236
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
Chen Chengzhi v. Director of Immigration and
Immigration Tribunal HCAL 40/2005
Decision of the Court of First Instance:
“The first is that it is undisputed that Madam Wan had at
least as early as 1974 claimed to the Hong Kong authority
that she was born in Hong Kong. That was shortly after her
arrival in Hong Kong and was the first available opportunity
for her to report her place of birth. There is no obvious
motive or reason for her to give an incorrect account or to
lie about her place of birth. Since then, Madam Wan has
consistently maintained that she was born in Hong Kong.”
Decision of the Court of First Instance:
“The second matter is that the Director does not dispute that: (1)
The parents of the applicant’s mother were indigenous villagers,
and had lived and died in Hong Kong; and (2) Wan Fook Ying
and Wan Yau are the elder sister and younger brother of Madam
Wan and they were both born and brought up in Hong Kong.
The question that has to be addressed is: Against these
undisputed facts and considering that 1928 was a time of peace
in Hong Kong, what is the probability of Madam Wan being
born outside the village and outside Hong Kong. In other
words, is it inherently probable for Madam Wan’s mother to give
birth to her second child in Hong Kong, as with the case of her
first and third child? Further, is it inherently probable for her, as
an indigenous villager, to have left Hong Kong in 1928 and
leaving her eldest daughter behind, to go to the Mainland to give
birth to Madam Wan?”
237
238
Council of Civil Service Unions v. Minister for
the Civil Services [1985] A.C. 374
Exceptions
•  national security
•  not applicable to legislative process
•  ex post facto hearing or appeal may save
a hearing that has breached natural justice
239
LORD FRASER OF TULLYBELTON:
“The decision on whether the requirements of national security
outweigh the duty of fairness in any particular case is for the
Government and not for the courts;…in any event the judicial
process is unsuitable for reaching decisions on national security. But
if the decision is successfully challenged, on the ground that it has
been reached by a process which is unfair, then the Government is
under an obligation to produce evidence that the decision was in
fact based on grounds of national security…The evidence in
support of this part of the respondent's case came from Sir Robert
Armstrong in his first affidavit…The affidavit, read as a whole, does
in my opinion undoubtedly constitute evidence that the Minister did
indeed consider that prior consultation would have involved a risk of
precipitating disruption at GCHQ. I am accordingly of opinion that
the respondent has shown that her decision was one which not only
could reasonably have been based, but was in fact based, on
considerations of national security, which outweighed what would
otherwise have been the reasonable expectation on the part of the
appellants for prior consultation. ”
240
•
•
•
•
Otis Elevator Company (HK) Ltd v Director of
Electrical and Mechanical Services CACV184/1994
As a result of an accident occurring in the course of
maintenance works being carried out on a lift, the
Director of Electrical and Mechanical Services brought
charges against
Ltd., the lift contractor, as it appeared to him that Otis
Ltd. had been guilty of negligence or misconduct.
The Director appointed a disciplinary board under s
11E(1) of the Lifts and Escalators (Safety) Ordinance
(Cap 327) to hear the charges against Otis. The
chairman appointed, was an assistant director in a
division of the Department of Electrical and Mechanical
Services, which had no involvement with, lift
contractors.
Otis was found guilty for the charges by the disciplinary
board. Otis Ltd. applies for judicial review against the
board's decision.
241
Otis Elevator Company (HK) Ltd v Director of
Electrical and Mechanical Services CACV184/1994
•  Section 11E of the Lifts and Escalators (Safety) Ordinance (Cap.327)
provides that:
"(1) The Director may, whenever it is necessary to do so …, appoint a
disciplinary board.
(2) Every disciplinary board appointed under this section shall consist of (a) one person who is a member of the panel appointed under section 11F;
(b) one person whose name is included in list II kept under section 3(2)(b)
of the Buildings Ordinance (Cap.123) and who is a member of the panel
appointed under section 8A;
(c) 3 members who are members of the panel appointed under section 8A
(d) the Director or his representative.
(3) The Director or his representative, or such other member of the
disciplinary board appointed under this section as the Director may
appoint, shall be the chairman of a disciplinary board appointed under
this section, and the chairman shall determine the procedure of the board.
(4) A legal officer may be present at any proceedings of a disciplinary
board appointed under this section to advise the chairman on any matter.”
243
Otis Elevator Company (HK) Ltd v Director of
Electrical and Mechanical Services CACV184/1994
•  Section 8A of the Lifts and Escalators (Safety)
Ordinance (Cap.327) provides that:
"(1) The Secretary [for Planning, Environment and
Lands] shall,… appoint a panel of persons (the
‘disciplinary board panel’) which shall consist of not
more than 20 members…
(2) No person shall be appointed to be a member of the
board unless he has been in practice in Hong Kong for a
period of at least ten years and has been recommended
by the Director after consultation with the appropriate
institution of which he is a member.”
242
Otis Elevator Company (HK) Ltd v Director of
Electrical and Mechanical Services CACV184/1994
•  Section 11G of the Lifts and Escalators (Safety) Ordinance (Cap.
327) provides that:
"(1) Where it appears to the Director that a registered lift
contractor or a registered escalator contractor has been convicted
by any court of such an offence, or has in carrying out any lift
works or escalator works, as the case may be, been guilty of such
negligence or misconduct .…the Director may bring the matter
to the notice of a disciplinary board appointed under section 11 E.
(2) Where, after due inquiry, the disciplinary board is satisfied that
the registered lift contractor or the registered escalator contractor
has been convicted of such an offence or has been guilty of such
negligence or misconduct as is referred to in subsection (1), the
board may- (a) order- (i) that the name of the lift contractor or
escalator contractor be removed from the register of lift
contractors or the register of escalator contractors or both
registers, as the case may be, either permanently or for such
period as the board directs…”
244
Otis Elevator Company (HK) Ltd v Director of
Electrical and Mechanical Services CACV184/1994
•  Section 11I. of the Lifts and Escalators (Safety)
Ordinance (Cap.327) reads as follows:
”(1) Any lift contractor or escalator contractor aggrieved
by any order made in respect of him … may appeal to a
judge of the High Court, and upon such appeal the
judge may confirm, reverse or vary the order of the
disciplinary board or may remit the matter to the board
with his option thereon.
(4) The decision of the judge shall be final.”
245
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
•  Wong is an inmate of Stanley Prison. He was found to
have committed offences against prison discipline in 5
cases and punished by forfeiture of remission of
sentence.
•  Reports against Wong were dealt with and decided by
the Head of Stanley Prison.
•  Issues: (1) Whether there was basis to complain of bias
on the part of the Superintendent who determined the
cases?
•  (2) If the answer to (1) is yes, whether the whole
determination process of prison disciplinary offences,
including appeal to the Commissioner and judicial
review, could nevertheless be regarded as fair?
247
Otis Elevator Company (HK) Ltd v Director of
Electrical and Mechanical Services CACV184/1994
Liu, J.A., Court of Appeal:
“In this case, s.11G(1) of the Lifts and Escalators (Safety) Ordinance,
Cap. 327 (requiring the Director to first form a view that a
contractor "has been guilty" of negligence) and s.11G(2) (before
due inquiry can be made by the Disciplinary Board with the
Director or his representative sitting on it as Chairman) were in
place before the Hong Kong Bill of Rights Ordinance. It does not
seem to be disputed that the legislature may limit or exclude any
right to the common law rules of natural justice…They were
workable before our Bill of Rights. Does the statutory scheme admit
of a construction consistent with the Hong Kong Bill of Rights
Ordinance or has it in part been repealed? See s.3 Cap. 383. Section
11I of the Lifts and Escalators (Safety) Ordinance provides an
unrestricted right to a complete rehearing on appeal…The statutory
scheme here enjoys an avenue to a fresh re-hearing on appeal, and
the Disciplinary Board as constituted within it is therefore not
inconsistent with Article 10.”
246
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Prison Rule 57 provides that:
“The Superintendent or in his absence, the officer
appointed to act for him and no other, shall deal
with a report made against a prisoner.”
248
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Prison Rule 63 provides that:
“(1) The Superintendent may order a prisoner, who
commits any of the offences enumerated in rule 61, to be
punished by any one or more of the following
punishments…
(2) Any prisoner who considers himself aggrieved by any
order made by the Superintendent under this rule may,
within 48 hours after the issue of such order, notify the
Superintendent that he wishes to appeal to the
Commissioner against such order, and the Superintendent
shall forthwith notify the Commissioner accordingly and
shall stay execution of the order pending the hearing of the
appeal.
249
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Decision of the Court of Appeal:
“Challenges based on a lack of independence and impartiality may
be brought on an institutional level. If the system is structured in a
way that creates a reasonable apprehension of bias on an
institutional level, the requirement of impartiality is not met.
Considering the circumstances which are said to give rise to bias
where a Superintendent acts as adjudicating officer in
disciplinary proceedings of a prisoner of the same prison, there is
legitimate doubt if the essential objective conditions or guarantees
of judicial independence are met. As independence provides the
structural framework which secures impartiality, legitimate doubts
over the lack of independence could lead to reasonable misgivings
over impartiality, whether the adjudicating Superintendent would be
free of a predisposition to favour the interests of either side. Public
perception from an objective viewpoint would conclude there was a
real possibility that the adjudicating Superintendent might be
subconsciously biased.”
251
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Art. 10 of HKBOR provides that:
“All persons shall be equal before the courts and
tribunals. In the determination of any criminal
charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent
and impartial tribunal established by law…”
250
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Decision of the Court of Appeal:
“The common law has developed a similar doctrine in that the courts
have declined to intervene on grounds of procedural unfairness
where the impugned decision is subject to correction by a
procedure which has proper procedural safeguards. This approach
is based in large part on an assessment if, in all the circumstances of
the original hearing and subsequent appeal, the procedure as a whole
would satisfy the requirements of fairness. “Of particular importance
are (a) the gravity of the error committed at first instance, (b) the
likelihood that the prejudicial effects of the error may also have
permeated the rehearing, (c) the seriousness of the consequences for
the individual, (d) the width of the powers of the appellate body and
(e) whether the appellate decision is reached only on the basis of the
material before the original tribunal or by way of fresh hearing, or
252
rehearing de novo”.”
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Decision of the Court of Appeal:
“In assessing the sufficiency of judicial review to remedy an initial
decision-making process which has not been compliant with article
10, it is necessary to have regard to matters such as these: the subject
matter of the decision appealed against, the manner in which that
decision was arrived at, the content of the dispute, the proposed
grounds of challenge of the decision.
The European Court of Human Rights held that judicial review
could not provide the curative effect in this situation for these
reasons: (1) the decision of the review board was based on a simple
issue of fact, namely, whether there had been good cause for the
applicant’s delay in making a claim. No specialist expertise was
required to determine that issue; (2) this simple factual finding could
not be said to be merely incidental to the reaching of broader
253
judgments of policy or expediency…”
Decision of the Court of Appeal:
“(3) the review board was not merely lacking in independence from
the executive, but was directly connected with one of the parties to
the dispute. The connection of the councillors to the local authority
might infect the independence of judgment in relation to the finding
of primary fact in a manner which could not be adequately
scrutinised or rectified by judicial review; (4) although the High
Court on judicial review had power to quash the decision of the
review board if there was no evidence to support the factual finding
or where the finding was plainly untenable or where relevant factors
had not been taken into account, the High Court did not have
jurisdiction to rehear the evidence or substitute its own views as to
the applicant’s credibility; (5) hence, there had never been the
possibility that the central issue would be determined by a tribunal
254
that was independent of one of the parties to the dispute.”
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Wong Tak Wai v. Commissioner of Correctional Services
CACV 231/2009
Decision of the Court of Appeal:
“…the core issue before the Superintendent was a dispute as to
primary fact, the apparent bias of the tribunal would not be cured by
judicial review, as the lack of independence on an institutional level
might infect the independence of judgment in the finding of primary
fact in an imperceptible manner which could not be adequately
scrutinised or rectified by judicial review. The High Court on a
judicial review has no jurisdiction to reach its own conclusion on the
primary facts, as it does not have power to rehear or weigh the
evidence, or substitute its own views as to the applicant’s credibility.
I would agree that in this situation, judicial review, without more,
does not afford full jurisdiction and does not cure the breach of
article 10 or the lack of independence and impartiality at the first
stage of the process before the Superintendent. There is still the
question whether an appeal to the Commissioner would provide the
curative effect. ”
Decision of the Court of Appeal:
“Given the wide power of the Commissioner to enquire into the
merits fully and to hold a rehearing where the justice of the matter
requires, he is armed with full jurisdiction to deal with the case as the
nature of the challenged decision requires. I am inclined to think that
the safeguards for a fair adjudication are met and that the process
overall is compliant with the requirements for a fair hearing. I would
answer the second main issue in this appeal in favour of the
Commissioner. ”
255
256
Statutory provisions on procedure
Natural Justice and Statutory provisions
on procedures
257
Road Traffic Ordinance, Cap. 374
s 30 Inquiry where passenger service licence is contravened
“(1) If the Commissioner has reason to believe in respect of any
vehicle in respect of which a passenger service licence is in force
that(a) the vehicle has been or is being used otherwise than for the
purpose of the service authorized by the licence; or
(b) any condition of the licence or any provision of this Ordinance
has not been or is not being complied with,
he may appoint a public officer to hold an inquiry.
(2) An officer appointed under subsection (1) shall fix a time and
place for the inquiry and shall give 21 clear days' written notice
thereof to the licensee…
(4) At an inquiry the officer conducting the inquiry shall consider(a) any evidence received by him, whether tendered on behalf of the
licensee or otherwise, and any representations made by or on behalf
of the licensee or otherwise;
(b) representations in writing by or on behalf of the licensee.”
258
Au Kwok Hung v. Appeal Panel appointed under the
Housing Ordinance HCAL 147/1999
Must the statutory provisions be strictly
complied with?
259
•  Au was a tenant in a public housing estate. His lease was
terminated.
•  According to section 20(1) of the Housing Ordinance:
“(1) Where a lease has been terminated under section 19 ... the
tenant may appeal to the panel, appointed under section 7A(1), not
later than 15 days after the date on which(a) service of the notice of termination has been effected under
section 19A(2); or
(b) notice to quit has been given under section 19(1)(b),
as the case may be: Provided that where the chairman of the panel
is satisfied that the tenant is unable to appeal by reason of illhealth, absence or other cause thought sufficient by the chairman,
he may permit an appeal to be made on behalf of the tenant by a
person authorised under the lease to occupy the land or part of it.”
•  Au made an appeal beyond the 15 days period, almost 3 months
out of time.
•  Is this procedural requirement a mandatory requirement? 260
Au Kwok Hung v. Appeal Panel appointed under the
Housing Ordinance HCAL 147/1999
Decision of the Court of First Instance:
“…questions which have to be asked which are more likely to be of
greater assistance than the application of the mandatory/directory
test. The questions which are likely to arise are as follows.
1. Is the statutory requirement fulfilled if there has been substantial
compliance with the requirement and, if so, has there been substantial
compliance in the case in issue even though there has not been strict
compliance? (The substantial compliance question.)
2. Is the non-compliance capable of being waived, and if so, has it, or
can it and should it be waived in this particular case? (The
discretionary question.) I treat the grant of an extension of time for
compliance as a waiver.
3. If it is not capable of being waived or is not waived then what is
the consequence of the non-compliance? (The consequences
question.)”
261
Au Kwok Hung v. Appeal Panel appointed under the
Housing Ordinance HCAL 147/1999
Decision of the Court of First Instance:
“…what the laws makers should be judged to have intended should
be the consequence of non-compliance. In the present case, upon a
consideration of the wording of the Ordinance and its history of
amendments, I am satisfied that the law makers intended that if an
aggrieved tenant did not comply with the time limit he should be
barred totally from pursuing his appeal. If that were not the case, as I
have already indicated, I believe that the smooth running of the
legal machinery in Part IV of the Ordinance would be materially
impaired. That would not be in the greater public interest although it
may have an unhappy consequence for the individual tenant.
…there has not been substantial compliance with the 15 day
provision in section 20(1). But even if, factually, there had been such
compliance, I do not believe it would have fulfilled the statutory
requirement. Strict compliance is required because, as I have said, it
would otherwise undermine the ability of the Housing Authority to
fulfil its duty to move timeously to prepare vacated premises for
occupation by new tenants.”
263
Au Kwok Hung v. Appeal Panel appointed under the
Housing Ordinance HCAL 147/1999
Decision of the Court of First Instance:
“In considering the nature of the time limit requirement imposed by
section 20(1), I believe it is necessary to have regard to the purpose
of the Ordinance. That purpose is to provide for the establishment of
the Housing Authority which itself has imposed upon it a statutory
duty,…The Authority therefore has a duty to secure housing for
various classes of persons, those persons invariably being incapable
(by way of purchase or rental) of otherwise securing adequate
housing for themselves…I believe too that I am entitled to take
judicial notice of a fact notorious in Hong Kong; namely, the
existence of considerable pressure on the Authority to secure
housing for an extensive waiting list of applicants. It follows
therefore that when accommodation becomes available the Authority
has a duty to allocate it as soon as reasonably possible….In such
circumstances, if a tenant is to appeal the termination of his lease, I
believe that a strict approach by the legislature to time requirements
is readily understandable…it is clear that the legislature did not vest
the Appeal Panel with any discretion to extend the time period
allowed for an appeal.”
262
Express inclusion of natural justice
Schedule 5A, Mandatory Provident Fund
Ordinance (Cap. 485):
“2. Authority not bound by rules of evidence
At the inquiry, the Authority must comply with
the rules of natural justice, but is not bound by
the rules of, or the practice relating to, evidence
and may inform itself on any matter as it thinks
appropriate.”
264
Implied inclusion of natural justice
Express exclusion of natural justice
R v. Home Secretary, ex parte Doody [1994] 1 AC
531, at 560, Lord Mustill:
“What does fairness required in the present case?
My Lords, I think it unnecessary to refer by name or
to quote from, any of the often-cited authorities in
which the courts have explained what is essentially
an intuitive judgment. They are far too well known.
From them, I derive that…where an Act of
Parliament confers an administrative power there is
a presumption that it will be exercised in a manner
which is fair in all the circumstances.”
!
Otis Elevator Company (HK) Ltd v
Director of Electrical and Mechanical
Services 5 HKPLR 78, Liu, J.A.:
“It does not seem to be disputed that the
legislature may limit or exclude any right
to the common law rules of natural
justice…”
!
265
266
Implied exclusion of natural justice
Lau Tak-pui v. Immigration Tribunal
[1992] 1 HKLR 374, Clough, J.A.:
“In determining whether or not the court should,
in the interests of natural justice, supplement
procedure laid down in legislation for bodies
which are required to act judicially the test is
whether that statutory procedure necessarily
ought to be supplemented because it is
insufficient to achieve fairness and justice.”
!
267
Development of Procedural Fairness
268
Form of procedural protection under
natural justice
Form of procedural protection under
natural justice
•  adversarial in nature
•  may not be suitable for administrative
process
No procedural protection
269
270
Form of procedural protection under
natural justice
Duty to Act Fairly
Inappropriate procedural protection
271
272
H.K. an Infant, In re [1967] 2 Q.B. 617
H.K. an Infant, In re [1967] 2 Q.B. 617
•  A, a native of Pakistan, came and settled in United
Kingdom.
•  HK, a person alleged to be his son and 15 years of
age, arrived by air at London Airport and were
interviewed by the immigration authorities.
•  Section 2 of the Commonwealth Immigrants Act,
1962, provided that “the power to refuse admission
shall not be exercised ... in the case of any person
who satisfies an immigration officer that he is the
child under 16 years of age, of a Commonwealth
citizen who is resident in the United Kingdom.”
•  The immigration officer suspected that HK was
above 16 from the appearance of him. After further
interviews and medical examination conducted, a
decision refusing admission was made.
273
H.K. an Infant, In re [1967] 2 Q.B. 617
LORD PARKER C.J.:
“Good administration and an honest or bona fide decision
must, as it seems to me, require not merely impartiality, nor
merely bringing one's mind to bear on the problem, but
acting fairly; and to the limited extent that the circumstances
of any particular case allow, and within the legislative
framework under which the administrator is working, only
to that limited extent do the so-called rules of natural justice
apply, which in a case such as this is merely a duty to act
fairly.
…it seems to me impossible in the present case to say that
the decision…was not arrived at, as I put it, fairly. It is
impossible to believe other than that both father and son
knew full well of what they had to satisfy the authorities.
They were, as it seems to me, given ample opportunity to do
so, and the fact that the officer was not satisfied is not, as is
admitted, a matter for this court.”
275
274
What is a duty to act fairly?
•  natural justice?
•  duty to act fairly for administrative bodies
•  flexible content of the procedural requirement
after considering the nature of interest affected,
benefits to be gained and the costs to the
administration
•  new form of non-adjudicative procedural
protection?
-mediation, consultation, participation in
the rule making process etc.
•  substantive justice?
276
Procedural Fairness
Readings
•  Swati Jhaveri, Michael Ramsden, and Anne
Scully-Hill, Hong Kong Administrative Law
(Hong Kong: Lexis Nexis Butterworths, 2010),
Chapter 8;
•  Michael Rowse v.Secretary for the Civil
Serviceand Others HCAL 41/2007;
•  David Jabbari, “Critical Theory in Administrative
Law,” (1994) Oxford Journal of Legal Studies
Vol. 14, No. 2, pp. 189-215
What should be the role of the
court in enhancing procedural
fairness in administrative
decisions ?
277
Reference
•  Criag, Administrative Law ( Sweet & Maxwell, 6th edn,
2008), chapter 12 and 13
•  Wade & Forsyth, Administrative Law (Oxford
University Press, 10th edn. 2009), Chaper 12, 13, and 14
•  Loughlin, “Procedural Fairness: A Study of the Crisis in
Administrative Law Theory” (1978) Univ. Toronto L. J.
215
•  D. H. Clark, “Natural Justice: Substance and
Shadow’ [1975] Public Law 27-63
•  Neill, “The Duty to Give Reasons: the Openness of
Decision-Making” in Forsyth & Hare (eds) The Golden
Metwand and the Crooked Cord (Oxford: Claredon
Press, 1998)
•  Timothy H. Jones, “Judicial Bias and disqualification in
the Pinochet case” [1999] Public Law 391-399
279
278