z

1.2
THE JUDGE OVER YOUR SHOULDER

THE JUDGE OVER

YOUR SHOULDER
A GUIDE TO JUDICIAL REVIEW
FOR ADMINISTRATORS

FOURTH EDITION
 The Judge Over Your Shoulder
A Guide To Judicial Review For
Administrators
(4th Edition)

Editorial Board

General Editors: Christina Cheung, JP

Phyllis Wong
William Liu

Consultant Editor: Professor Christopher Forsyth

Contributing Editors: Jenny Cheung

Matthew Cheung
Walter Kwong
Aaron Lam
Kennis Lam
Ryan Lee
Carmen Siu
Adam Tang
Josephine Yip

Disclaimer: This publication presents legal principles which are derived mainly from the
current case law. The views and opinions expressed in the publication should not be
regarded as the Department of Justice’s legal advice or position. The law develops and
the understanding of it may change from time to time. No responsibility can be accepted
by the Department of Justice for any errors and omissions contained in it or for any loss
or damage however arising from the use of, or reliance on, its contents.

Copyright in this book is vested in the Government of the Hong Kong Special
Administrative Region. This book may not be reproduced in whole or in part without the
written permission of the Government of the Hong Kong Special Administrative Region.

Copyright @ 2022 Department of Justice

Foreword

FOREWORD
A number of important judgments have been pronounced
in the past three years, and that has prompted the Department of
Justice to prepare and publish the fourth edition of Judge Over
Your Shoulder. Just like the third edition, this edition is publicly
available on the Department of Justice’s website. I encourage the
legal sector and the general public to refer to it so as to understand
and to be kept abreast of the latest development in case law in the
realm of judicial review.

One of the matters addressed in this edition is the

commonly seen phenomenon of abuse of process of judicial review
applications. In this regard, it may be useful to be reminded of the
procedures by which judicial review is typically conducted and its
rationale. The relevant rule requires "the relief sought and the
grounds on which it is sought" to be stated in the Form 86 and that
an application for leave is to be heard ex parte where the applicant
has a duty of full and frank disclosure. This screening process of
an ex parte leave application has been introduced so that only
meritorious and appropriate cases will be allowed to continue to
the substantive stage whereby the administrative conduct and
decision-making process of the Administration will be subjected to
legal scrutiny by the independent court in the judicial review
proper. The Form 86 therefore is an important document by which
the applicant has to set out the grounds under a duty of full and
frank disclosure and by which an ex parte screening process is to
be conducted. The proposed respondents are not to be vexed
unless leave is given. Exceptionally, the putative respondent may
be asked to attend a leave hearing and sometimes to file an "initial
response".
Foreword

This important two-staged procedure serves to prevent an

abuse of the judicial process by filtering out, at an early stage,
unmeritorious or misconceived cases, and on the other hand, allow
proper challenges to the conduct or decision making process of the
Administration be subjected to review by an independent judiciary.

In addition, we have recently seen some important

developments in the area of public law where the constitutional
order of Hong Kong SAR is being considered. At the risk of stating
the obvious, the National People's Congress (“NPC”), being the
highest organ of state power in the People's Republic of China
(“PRC”), enacted the Basic Law in accordance with the
Constitution of the PRC, in particular Articles 31 and 62(14). The
recent cases have confirmed that decisions of the NPC and its
Standing Committee are binding on Hong Kong courts and not
amenable to judicial review. This is an important recognition of
the national constitutional order.

This year is the 25th anniversary of Hong Kong returning

to the motherland. It is therefore timely for us to publish this fourth
edition evidencing the development of judicial review under the
Hong Kong common law jurisprudence with proper recognition of
the constitutional order of Hong Kong SAR. Judicial review
provides an important safeguard to ensure that the Administration
properly exercise its powers in accordance with the law and hence
will ensure that the constitutional order and principles laid down in
the Basic Law are observed. This publication, we hope, will
provide a good source book material for studying and
understanding administrative law in the context of “one country,
two systems”. By so doing, not only will we continue to apply
common law and holistically implement “one country, two
systems” now and beyond 2047, we will also be able to maintain
Foreword

the prosperity and stability of Hong Kong through the upholding

of the rule of law.

Ms Teresa Cheng, GBM, GBS, SC, JP

Secretary for Justice
Contents

CONTENTS

1. This Guide ..................................................................................... 1

1.1 The Nature of Judicial Review........................................... 1
1.2 Statistics ............................................................................. 2
1.3 The Foundations of Judicial Review.................................. 3
1.4 Review and Appeal ............................................................ 4
1.5 Judicial Review and Good Governance ............................. 4
1.6 Role of the Court ................................................................ 5
1.7 Grounds for Judicial Review: An Overview ...................... 7
2. Is Judicial Review Available ......................................................... 9
2.1 Constitutional Limits on Judicial Review .......................... 9
2.2 Procedural Exclusivity ..................................................... 11
2.3 Timing .............................................................................. 12
2.4 Subject Matter of Challenge ............................................ 14
2.5 Alternative Remedy ......................................................... 17
2.6 Ouster Clause ................................................................... 18
2.7 Standing of Applicant ...................................................... 19
2.8 Hypothetical or Academic Question ................................ 21
2.9 Factual Disputes ............................................................... 22
2.10 Prevention of Abuse ......................................................... 24
3. Illegality ........................................................................................ 27
3.1 Statutory Interpretation .................................................... 27
3.2 Exercise of Discretion ...................................................... 29

i
Contents

3.3 Grounds of Illegality ........................................................ 29

3.4 Estoppel, Waiver, Consent and Discretion ...................... 50
4. Irrationality.................................................................................. 53
4.1 Wednesbury Unreasonableness........................................ 53
4.2 Proportionality and Fundamental Rights ......................... 55
5. Procedural Impropriety .............................................................. 56
5.1 Natural Justice .................................................................. 56
5.2 Right to a fair hearing ...................................................... 58
5.3 Rule against bias, the requirement of impartiality and
independence.................................................................... 63
5.4 Protection of legitimate expectations ............................... 70
5.5 Exclusion of natural justice .............................................. 74
5.6 Duty to give reasons......................................................... 75
6. Constitutional Challenge............................................................. 78
6.1 The Nature of Constitutional Challenge .......................... 78
6.2 The Nature of the Basic Law ........................................... 78
6.3 The Interpretation of the Basic Law ................................ 79
6.4 The Effect of Interpretation of the Basic Law by
SCNPC ............................................................................. 81
6.5 Provisions of The ICCPR as applied to Hong Kong ........ 83
6.6 The Proportionality Test applied in Constitutional
Challenges ........................................................................ 84
6.7 Margin of Discretion ........................................................ 87
7. The Process of Judicial Review .................................................. 92
7.1 Application for leave........................................................ 92

ii
Contents

7.2 Grant of Leave ................................................................. 93

7.3 Interim Relief ................................................................... 94
7.4 Filing Substantive Application......................................... 97
7.5 Respondent and the Duty of Candour .............................. 98
7.6 Substantive Hearing ....................................................... 100
7.7 Relief (other than Damages) .......................................... 102
7.8 Damages ......................................................................... 105
7.9 Costs............................................................................... 107
7.10 Appeal ............................................................................ 109
7.11 Intervention .................................................................... 111
7.12 Case Management .......................................................... 111
8. Judicial Review in Immigration Context (Immigration
Matters) ...................................................................................... 113
8.1 Overview ........................................................................ 113
8.2 Right of Abode (“ROA”) ............................................... 114
8.3 Other Fundamental Rights ............................................. 117
8.4 Non-Refoulement Claims .............................................. 122
9. Judicial Review in Land, Environmental, Planning and
Building Context ........................................................................ 125
9.1 Introduction .................................................................... 125
9.2 Judicial Review concerning Land Matters ..................... 125
9.3 Environmental Challenges ............................................. 128
9.4 Planning Cases ............................................................... 132
9.5 Building Cases ............................................................... 135
10. Other Remedies ......................................................................... 137

iii
Contents

10.1 Habeas Corpus ............................................................... 137

10.2 Private law actions for damages..................................... 138
10.3 Alternative dispute resolution ........................................ 144
10.4 The Ombudsman ............................................................ 151
10.5 The Privacy Commissioner for Personal Data ............... 152
10.6 Administrative Appeals Board and other Tribunal and
Appeals Board ................................................................ 155
10.7 Inquiries ......................................................................... 156
10.8 Remedies under the Hong Kong Bill of Rights
Ordinance ....................................................................... 158
10.9 Ex gratia compensation .................................................. 160
Annex I Judicial Review Flowcharts .......................................... 161
Annex II Questions to Ask Yourself as a Decision-maker ........... 163
Annex III Glossary ........................................................................ 173

iv
List of Abbreviations

List of Abbreviations
BL / Basic Law The Basic Law of the Hong Kong Special
Administrative Region of the People’s
Republic of China

BL 8 Article 8 of the Basic Law of the Hong

Kong Special Administrative Region of
the People’s Republic of China

CAT The Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment
or Punishment

CFA The Court of Final Appeal of the Hong

Kong Special Administrative Region of
the People’s Republic of China

CRC The Convention on the Rights of the Child

HKBOR The Hong Kong Bill of Rights as

contained in section 8 of the Hong Kong
Bill of Rights Ordinance (Cap. 383)

HKBORO The Hong Kong Bill of Rights Ordinance

(Cap. 383)

HKSAR / The Hong Kong Special Administrative

Hong Kong Region of the People’s Republic of China

ICCPR The International Covenant on Civil and

Political Rights

vii
List of Abbreviations

ICESCR The International Covenant on Economic,

Social and Cultural Rights

LegCo The Legislative Council of the Hong

Kong Special Administrative Region of
the People’s Republic of China

PRC People’s Republic of China

SCNPC The Standing Committee of the National

People’s Congress of the People’s
Republic of China

UNHCR The United Nations High Commissioner

for Refugees

viii
Chapter 1 This Guide

1. This Guide
This Guide is intended to assist Government officials
responsible for making decisions affecting the public. It highlights
the main areas where decisions are susceptible to challenge in
courts by way of the procedure known as the “application for
judicial review”. It examines in broad terms the process of judicial
review. This Guide is not intended to be a substitute for seeking
legal advice but it should assist in making lawful decisions. Apart
from judicial review, there are other remedies available for
challenging or seeking redress in relation to an administrative
decision the overview of which is in Chapter 10.

1.1 The Nature of Judicial Review

1.1.1 Judicial review is the review by a judge of the Court of
First Instance of any exercise, or any refusal to exercise, of any
public decision-making powers and the legality of legislation. Its
purpose is to determine whether that decision or piece of
legislation is lawful and valid. It is thus a means by which the
courts can supervise how Government officials or other public
officers exercise their powers or carry out their duties. It plays an
important part in the process of good administration, providing an
effective means of ensuring that any improper exercise of power
can be remedied and safeguarding individual interests against any
administrative action which is illegal, irrational or taken without
following proper procedures.

1.1.2 Although most administrative actions are based on the

exercise of powers derived from legislation, judicial review may
also cover other administrative actions that do not have a statutory
basis, for example, deciding whether to make an ex gratia
compensation or the Comprehensive Social Security Allowance.

1
Chapter 1 This Guide

1.1.3 Government officials and other public authorities (such

as the Housing Authority and the Hospital Authority) performing
public functions are the most common bodies whose decisions are
challenged by judicial review. But any person exercising public
power (including any statutory board or disciplinary panel of a
professional body) may also be subject to judicial review.

1.2 Statistics
1.2.1 Below are statistics of judicial review in recent years.
The table below shows the number of applications for leave to
apply for judicial review filed in Court 1 . There has been a
significant increase in the number of applications for leave for
judicial review in recent years, mostly relating to non-refoulement
claims which will be discussed in Chapter 8.

Application for leave

to apply for Judicial Review

Year Total no. of Applications

applications relating to non-
refoulement claims
2015 259 103
2016 228 60
2017 1 146 1 006
2018 3 014 2 851
2019 3 889 3 727
2020 2 500 2 367

1.2.2 The table below shows the outcome of the judicial review
applications which involve the Government. The relatively high

1
The statistics are based on the Judiciary’s written replies to the Legislative
Council.

2
Chapter 1 This Guide

success rate shows that the Government has been committed to the
observance of the public law principles when exercising its
decision-making power and carrying out its public functions.

Outcome of Judicial Review

in respect of cases involving Government

Year Favourable to Against

Government Government
2015 56% 44%
2016 88% 12%
2017 85% 15%
2018 93% 7%
2019 95% 5%
2020 86% 14%

1.3 The Foundations of Judicial Review

1.3.1 In most cases the foundation or justification of judicial
review is to be found in the basic proposition that a public official
must not act beyond his legal powers (“ultra vires”), i.e. a decision
is challenged on the ground that it is in excess of the authority
conferred by law, and therefore invalid.

1.3.2 The “ultra vires doctrine” covers the validity of

subsidiary or delegated legislation as well as the decisions of
administrative boards or tribunals and the decisions of
administrative bodies (such as those taken by public officers and
public authorities). A decision-maker acts beyond his powers both
when he goes beyond the powers expressly granted by the
legislation but also when he ignores the limits laid down impliedly
by the legislation. Thus even if the legislation does not expressly
say that powers must be exercised in a procedurally fair manner,

3
Chapter 1 This Guide

this is “taken as read” and a decision-maker who adopts an unfair

procedure will be found to have exceeded his powers.

1.3.3 Where there is no legislation involved (see para 1.1.2),

the justification of judicial review is found in the “common law
theory”. Judicial review is justified by the inherent power of the
courts to develop the common law. It is a judicial creation intended
to apply the substantive values of fairness and justice inherent in
the rule of law to the decisions of administrative authorities.

1.4 Review and Appeal

1.4.1 Judicial review is fundamentally different from an appeal.
When hearing an appeal, the court is concerned with the merits of
a decision. Was it a wise or an unwise decision? On judicial
review, the court is only concerned with whether the relevant act
or decision is lawful or unlawful in the public law sense. This is
because the purpose of judicial review is to guide public authorities
and ensure that they act lawfully in the performance of their public
duties and functions. See ZN v Secretary for Justice & Ors [2017]
1 HKLRD 559, HCAL 15/2015 (23.12.2016). Further, rights of
appeal are always statutory while judicial review is inherent in the
common law.

1.5 Judicial Review and Good Governance

1.5.1 With the increasing number of applications and wide
range of areas covered, it is inevitable that judicial review will
create pressure on the Administration. As acknowledged by the
Chief Justice Cheung at the Rule of Law Signature Engagement
Event 2021, legal proceedings take time, and the holding of the
government to legal accountability may inevitably reverse or
substantially delay the implementation of government decisions,

4
Chapter 1 This Guide

policies or projects, no matter how important or desirable they may

otherwise be for the public good. These challenges, however, help
develop a culture on the part of the Government and public
authorities in which they exercise their powers and formulate their
legislative proposals and policies in compliance with the law. This
is part and parcel of the Government’s role in vigilantly upholding
the rule of law and maintaining good administration.

1.5.2 Of course it is often inconvenient for the Government to

lose a judicial review (especially when established procedures
have to be changed as a result) and to have its conduct described
as unlawful by the courts. But this only underscores the
importance of public officers making decisions in accordance with
the principles set out in this Guide, so that those decisions are less
likely to be vulnerable to challenge in the courts. As mentioned by
the former Chief Justice Ma at the Ceremonial Opening of the
Legal Year 2016, “[a] decision of the court in public law litigation
will often serve as a guide to good governance, whether looking at
events in the past or perhaps more important, the future. Although
there may occasionally be inconveniences, judicial review overall
serves the public interest and facilitates the well-being of our
society.”

1.6 Role of the Court

1.6.1 The court has repeatedly emphasised that its role is solely
to determine legal issues in accordance with the law and its spirit
although judicial review proceedings may involve matters of
considerable political, economic or social consequences.

1.6.2 Generally, the court is slow to review Government

policies which are legitimately formulated. Judicial review is
concerned with the question of legality and is not intended to

5
Chapter 1 This Guide

deprive authorities of their policy-making functions or to substitute

the courts’ decisions for those of policy-making bodies.

See the speech by the former Chief Justice Ma at the

Ceremonial Opening of the Legal Year 2017.

“The society in which we all live and work is a complex

one. The complexities are reflected in the nature of the
legal disputes that go before the courts for resolution.
Some of these disputes I have referred to as high profile
and may involve important political, economic or social
consequences. This should, I reiterate, be seen in
proper light. The courts deal with these types of case in
precisely the same way as any other case: strictly in
accordance with the law and legal principle.”

See also the speech by the Chief Justice Cheung at the Rule of
Law Signature Engagement Event 2021.
“Over and over again, the courts have emphasised in
public law cases that one must recognise the different
constitutional roles played by the courts, the executive
and the legislature. It is not the function of the courts
under our constitutional setup to interfere with, still less
to rewrite, government policies and decisions, or to
disapply laws enacted by the legislature, save where
that is the necessary result of upholding the provisions
of the Basic Law or other overriding legal requirements.
It should be remembered that court decisions are based
on the relevant legal principles and the facts of
individual cases. It is the courts’ role to administer the
law and decide legal issues; it is never their function to
resolve any underlying political or social controversies.
The courtroom is not the forum for the promotion or
ventilation of political or other non-legal views.”

6
Chapter 1 This Guide

Case Example
See Chu Yee Wah v Director of Environmental Protection [2011]
3 HKC 227, HCAL 9/2010 (18.4.2011). The court held that it was
not for the court to impose a new environmental policy on air
quality as to do so would be to trespass on the balancing process
which is the exclusive domain of the Executive.

1.7 Grounds for Judicial Review: An

Overview
1.7.1 The three main grounds for judicial review are:

(a) Illegality;
(b) Irrationality; and
(c) Procedural Impropriety.

Case Example
In Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374 (HL) (22.11.1984) Lord Diplock said in words that
have become very well known:

“Judicial review has I think developed to a stage today when …

one can conveniently classify under three heads the grounds upon
which administrative action is subject to control by judicial review.
The first ground I would call ‘illegality’, the second ‘irrationality’
and the third ‘procedural impropriety’. That is not to say that
further development on a case by case basis may not in the course
of time add further grounds…”

7
Chapter 1 This Guide

By ‘illegality’ as a ground for judicial review I mean that the

decision-maker must understand correctly the law that regulates
his decision-making power and must give effect to it …

By ‘irrationality’ I mean what can by now be succinctly referred

to as ‘Wednesbury unreasonableness’ (Associated Provincial
Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
It applies to a decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have
arrived at it …

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 instruments by which its jurisdiction is conferred, even
where such failure does not involve any denial of natural justice.”
(per Lord Diplock at 410, 411) [emphasis added]

1.7.2 A more detailed analysis of the above three main grounds

for judicial review will be provided in the chapters that follow. For
some useful questions to ask yourself as a decision-maker, please
refer to Annex II.

8
Chapter 2 Is Judicial Review Available

2. Is Judicial Review Available

In considering a potential case of judicial review, the first
question is often this: is judicial review available? This chapter
provides an overview of relevant key principles in considering this
question. In addition, there are two flowcharts at Annex I which
graphically summarise the key issues. You may wish to refer to
the flowcharts after reading this Guide.

2.1 Constitutional Limits on Judicial

Review
2.1.1 Under the Constitution of the PRC, the National People’s
Congress of the PRC is the highest organ of state power. Its
permanent organ is the SCNPC. These two bodies exercise the
legislative power of the state and make decisions, which can apply
in the HKSAR. More specifically, the SCNPC is vested with
various powers under the Basic Law including the power of
returning any laws enacted by the Legislative Council which are
not in conformity with the provisions of the Basic Law regarding
affairs within the responsibility of the Central Authorities or
regarding the relationship between the Central Authorities and the
HKSAR (BL 17), the power to add to or delete from the list of laws
in Annex III of the Basic Law (BL 18), the power to grant
additional powers to the HKSAR (BL 20) and the power to
interpret the Basic Law (BL 158).

2.1.2 As stated by the Court of Final Appeal in the landmark

decision of Ng Ka Ling v Director of Immigration (No 2) (1999) 2
HKCFAR 141, FACV 16/1998 (26.2.1999), courts of the HKSAR
cannot question the authority of the National People’s Congress or
the SCNPC to do any act which is in accordance with the

9
Chapter 2 Is Judicial Review Available

provisions of the BL and the procedure therein. Thus, decisions

made by the National People’s Congress and the SCNPC including
legislative acts are not subject to judicial review on the basis of any
alleged incompatibility with the Basic Law or otherwise. This has
been reaffirmed by the Court of Final Appeal in a more recent
decision, i.e. HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33,
FACC 1/2021 (9.2.2021), and consistently applied by the lower
courts.

2.1.3 For a discussion regarding the amenability of the

interpretation of the Basic Law by the SCNPC, please refer to
Chapter 6.4.

Case Example
In HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, [2021]
HKCFA 3, FACC 1/2021 (9.2.2021), the Court of Final Appeal
accepted that, in the light of Ng Ka Ling v Director of Immigration
(No 2), the legislative acts of the National People’s Congress and
the SCNPC leading to the promulgation of the National Security
Law as a law of the HKSAR, done in accordance with the
provisions of the Basic Law and the procedure therein, are not
subject to review on the basis of any alleged incompatibility with
the Basic Law or the ICCPR as applied to Hong Kong.

In Kwok Cheuk Kin v The Chief Executive of the HKSAR [2021]

HKCFI 1085, HCAL 542/2021 (27.4.2021), the Court of First
Instance stated that the broad reasoning of the Court of Final
Appeal in HKSAR v Lai Chee Ying would indicate that it is not
open to courts of the HKSAR to review the constitutionality of a
decision made by the National People’s Congress or the SCNPC
even assuming that they do not amount to “legislative acts”.

10
Chapter 2 Is Judicial Review Available

In 沈泰鋒 v Members of the LegCo & Anor [2021] HKCFI 2259,

HCAL 474/2021 (26.8.2021), adopting the same line of reasoning,
the Court of First Instance held that it is not open for the court to
review the constitutionality of the decision made by the SCNPC
dated 11 August 2020 for the sixth-term Legislative Council to
continue to discharge its duties for not less than one year until the
seventh-term Legislative Council begins.

2.2 Procedural Exclusivity

2.2.1 An applicant for judicial review is in a different situation
from a plaintiff who starts a private civil law action. A judicial
review applicant needs first to obtain leave from the court, by
satisfying the court of the various matters set out in this chapter,
and that the grounds of the proposed judicial review are reasonably
arguable (see Chapters 7.1 and 7.2). In order to prevent public law
issues from becoming the subject of adjudication in private law
proceedings where such hurdles do not exist, there is a rule
requiring persons seeking to obtain public law remedies (see
Chapter 7.7) to proceed by way of judicial review and not
otherwise. It would as a general rule be an abuse of process for an
applicant to seek redress for a public law wrong by means of a
private civil law action for private law remedy (for example, to
take out a private civil law action and applying for a declaration
that a public authority’s decision is unlawful). The rule is enforced
by the court striking out proceedings that should have been
commenced as a judicial review. In suitable cases, the court may
order that judicial review proceedings continue as a private law
action.

11
Chapter 2 Is Judicial Review Available

Case Example
In O’Reilly v Mackman [1983] 2 AC 237 (HL) (25.11.1982), the
plaintiffs, four inmates of Hull prison, commenced proceedings by
private civil action disputing the validity of punishments awarded
by the Board of Visitors of Hull Prison on the ground that such
disciplinary awards were in breach of the prison rules and
contravened the principles of natural justice. The House of Lords
held that the proceedings should be struck out as an abuse of
process of the court; and that since the case was a matter of public
law the only available procedure was judicial review.

2.2.2 There are various exceptions to the rule. One is where

the public law issues are collateral to the main issues in a private
law claim. For example, a defendant in a private civil law action
may defend himself by raising a public law issue. Similarly,
defendants in criminal proceedings may, under some
circumstances, be entitled to raise a defence in public law, such as
a challenge against the legality of the offence-creating provision.

2.3 Timing
2.3.1 Generally, an application for leave to apply for judicial
review must be made promptly and, in any event, within 3 months
from when the grounds for judicial review first arose, unless time
is extended by the court upon good reasons given. Leave may be
refused if an application for leave is delayed or premature.

Delay
2.3.2 Delay in making the application could result in refusal of
leave or, if leave is granted, denial of the discretionary relief after
the substantive hearing even if the ground of challenge is made out.

12
Chapter 2 Is Judicial Review Available

The court stressed that it was of obvious importance and in the

interests of good public administration that all concerned should
know where they stood as soon as possible so that the earliest
opportunity for any challenge should be promptly taken. If not, the
courts have the discretion to refuse relief. See Town Planning
Board v Society for the Protection of the Harbour Ltd (2004) 7
HKCFAR 1, FACV 14/2003 (9.1.2004). For principles regarding
extension of time to commence judicial review proceedings, see
AW v Director of Immigration & Anor [2016] 2 HKC 393, CACV
63/2015 (3.11.2015).

Prematurity
2.3.3 If an application for judicial review is premature, leave
may be refused. The issue of prematurity may arise if, at the time
when the application is made, the relevant legal or factual events
to which the application relates have not yet occurred or if the
application concerns an “intermediate” or “procedural” decision
which does not give rise to any substantive consequence.
Moreover, it is generally no part of a court’s function to restrain
the legislature from making laws, as distinct from declaring such
laws unlawful after enactment. In spite of that, an application for
judicial review may, in exceptional circumstances, be entertained
even where it may otherwise be regarded as being premature.

Case Example
In Financial Secretary v Wong (2003) 6 HKCFAR 476, FACV
5/2003 (26.11.2003), Litton NPJ expressed that judicial review
was the means by which judicial control of administrative action
could be exercised, and not every decision by a decision-maker
was susceptible to review; the essential quality of a reviewable
decision was that it was a substantive determination.

13
Chapter 2 Is Judicial Review Available

In 郭卓堅 v 林鄭月娥特首連同行政會議成員 [2017] 5 HKC

579, HCAL 453, 455, 458 & 460/2017 (27.9.2017), the applicants
sought leave to apply for judicial review against the putative
respondent’s decision endorsing the implementation of a proposed
arrangement regarding Hong Kong and Mainland customs,
immigration and quarantine procedures at the West Kowloon
Station (i.e. the co-location arrangement). The court refused leave
on the basis of prematurity as (i) the decision was an “intermediate”
decision which did not give rise to any substantive determination
touching on, or affecting, the rights or interests of the applicant; (ii)
the factual and legal events relevant for determining legality had
not yet occurred; and (iii) the challenge to the constitutionality or
legality amounted to, or involved, a pre-enactment challenge of the
local legislation which might be passed by the Legislative Council.

2.4 Subject Matter of Challenge

2.4.1 The nature of the decision in question will determine the
extent to which it can be reviewed by the court. Where the
impugned decision is non-justiciable (i.e. not capable of being
adjudicated upon by a court), the court will not review the decision.
Also, the court may exercise judicial restraint and avoid
adjudicating on matters pertaining to policy solutions to complex
social problems.

Limits on judicial review by the Basic Law

2.4.2 BL 19(2) provides for the maintenance of restrictions on
Hong Kong courts’ jurisdiction imposed by the legal system and
the principles previously in force in Hong Kong. Further, under
BL 19(3), the HKSAR courts shall have no jurisdiction over acts
of state such as defence and foreign affairs. BL 63 provides that
the Department of Justice shall control criminal prosecutions free

14
Chapter 2 Is Judicial Review Available

from interference. The matters covered by such Basic Law

provisions are generally not amenable to judicial review.

Case Example
See Re Leung Lai Fun [2018] 1 HKLRD 523, CACV 183/2016
(23.1.2017). The Court of Appeal acknowledged that BL 63
includes the protection of the independence of the Department of
Justice’s control of criminal prosecutions from judicial
encroachment barring those extremely rare situations, “such as
where there is evidence proving that the Department of Justice has
acted in obedience to political instruction when making the
decision, or is acting in bad faith, such as to cause the court to find
that the prosecutorial decision is unconstitutional”.

In Tsang Kin Shing v Secretary for Justice [2019] HKCFI 2215,

HCAL 687/2019 (6.9.2019), the applicants sought to challenge the
Secretary for Justice’s decision not to prosecute the former Chief
Executive of the Hong Kong SAR and another member of the
Legislative Council for various alleged criminal offences. In
refusing leave to apply for judicial review, the court reiterated three
particular types of cases where the Secretary for Justice would be
regarded as having acted outside the constitutional limits when
making a prosecutorial decision such that such decision would be
amenable to judicial review; it was also stressed that the
prosecutorial independence of the Secretary for Justice should not
be put on the same footing as an ordinary exercise of discretion by
an administrator.

15
Chapter 2 Is Judicial Review Available

Private vs public
2.4.3 The application for judicial review is confined to
reviewing matters of a public nature as opposed to those of a purely
private character. In exercising a purely commercial function, a
public authority performs a “private” function governed by private
and not public law. If the duty imposed on a body was a public
duty and the body was exercising public law functions, that body’s
decision may be within the reach of judicial review. The courts
usually regard the function being exercised by a public body, rather
than the formal source of its power, as the touchstone for
amenability to review.

Case Example
In Wan Yung Sang v Housing Authority, unreported, HCAL
135/2009 (6.7.2011), a tenant of public housing estate challenged
by way of an application for judicial review the Housing
Authority’s decisions in serving him a notice to quit and in
confirming the same. The Court of First Instance held that the
Housing Authority was not acting purely or predominantly as a
private landlord but there were clearly sufficient public elements
in managing the public housing estates via the tenancy agreements
to render the Housing Authority’s actions subject to judicial review.

Prerogative powers
2.4.4 These comprise the wide range of non-statutory
discretionary powers exercised by the Government. Examples
include the grant of honours, the grant of mercy, the appointment
of ministers and the making of treaties. These prerogative powers
were previously said to confer discretion which no court could
question. Today, those prerogatives do not as such confer

16
Chapter 2 Is Judicial Review Available

unreviewable discretion, but many of those powers are considered

to be of a kind with which the courts will not concern themselves
(i.e. not justiciable). Depending on the subject matter, the
lawfulness of the decision making process may be subject to
judicial review, while the merits of the decision will not be
questioned.

Case Example
See Ch’ng Poh v Chief Executive of HKSAR, unreported,
HCAL 182/2002 (3.12.2003). The applicant for judicial review
was convicted of fraud related offences. Following unsuccessful
criminal appeals, the applicant petitioned to the then Chief
Executive seeking the exercise of his prerogative for mercy under
BL 48(12). On the issue of amenability to judicial review, it was
held that “while the merits of any decision made by the Chief
Executive pursuant to Article 48(12) are not subject to the review
of the courts, the lawfulness of the process by which such a
decision is made is open to review.”

2.5 Alternative Remedy

2.5.1 Judicial review is a remedy of last resort and is always in
the discretion of the court. It is a well-established general principle
that an applicant should exhaust all appeal procedures or other
alternative remedies before resorting to judicial review.

2.5.2 Where alternative remedies have not been exhausted, the

court may refuse to grant leave to apply for judicial review. In
some special or exceptional circumstances, the court may permit
judicial review even if the applicant did not exhaust all appeal
procedures or other alternative remedies. The test is whether the

17
Chapter 2 Is Judicial Review Available

interests of justice require the court to intervene in the dispute at

that particular stage.

Case Example
See Leung Chun Ying v Ho Chun Yan Albert (2013) 16
HKCFAR 735, FACV 24, 25 & 27/2012, 1/2013 (11.7.2013). Mr
Leung Chun Ying was declared the returned candidate in the
election for the Chief Executive held on 25 March 2012. The
applicant (Mr Ho Chun Yan Albert) challenged Mr Leung’s
election by way of election petition under section 32 of the Chief
Executive Election Ordinance (Cap. 569) (“CEEO”) and judicial
review. The Court of Final Appeal held that where an election was
questioned by persons eligible to lodge an election petition under
section 33 of the CEEO, such challenge must be made by way of
an election petition but not by way of judicial review.

2.6 Ouster Clause

2.6.1 There may be statutory provisions in various forms which
seem to remove the court’s jurisdiction in judicial review. Here
are some examples.

(Section 19(3) of the Housing Ordinance (Cap. 283))

“No Court shall have jurisdiction to hear any application for relief
by or on behalf of a person whose lease has been terminated under
subsection (1) in connection with such termination.” Subsection
(1) provides for certain situations in which the Housing Authority
may terminate a lease.

18
Chapter 2 Is Judicial Review Available

(Section 20 of the Protection of Wages on Insolvency

Ordinance (Cap. 380))
“No decision of the Commissioner or the Board made in exercise
of any discretion under this Part shall be challenged in any Court.”

2.6.2 Ouster clauses are construed very strictly. There is a

strong presumption against any restriction of the supervisory
powers of the court. In general, ouster clauses may only protect a
valid decision; where a decision is a nullity (and most decisions
where there has been a legal error made will be nullities), it may
not be caught by the ouster clause and the decision may be
amenable to judicial review.

Case Example
In Anisminic v Foreign Compensation Commission [1969] 2 AC
147 (HL) (17.12.1968), the appellants’ challenge to a
determination of the Foreign Compensation Commission seemed
to be prevented by the ouster clause in section 4(4) of the Foreign
Compensation Act 1950, which stated that no “determination of
the commission ... shall ... be called into question in any court of
law”. The House of Lords nevertheless granted a declaration that
the determination was ultra vires and a nullity. On the
effectiveness of the ouster clause, the House of Lords held that it
did not protect a nullity.

2.7 Standing of Applicant

2.7.1 The court shall not grant leave to apply for judicial review
if the applicant does not have a sufficient interest in the matter to
which the application relates. Someone who is not directly

19
Chapter 2 Is Judicial Review Available

affected by the decision sought to be impugned may have no

sufficient interest. Standing goes to jurisdiction and it has to be
considered in the legal and factual contexts of the whole case.
Apart from merits, the court may take into account the following
factors: the importance of vindicating the rule of law, the
importance of the issue raised, the existence and absence of any
other challengers who have a greater interest in the matter, and the
nature of the breach of duty against which relief is sought. The
over-arching question is whether, in the particular context of the
case, the preservation of the rule of law requires standing to be
given to the applicant to ventilate the issues raised in the
application in light of the interest he has, see Kwok Cheuk Kin v
President of Legislative Council [2021] 1 HKLRD 1247, [2021]
HKCA 169, CACV 320/2019 (11.2.2021). The Court of Final
Appeal has stated a similar question, viz. whether the purpose of
judicial review, and in particular the rule of law, will be best served
by allowing the applicant to proceed, see Kwok Cheuk Kin v
Director of Lands [2021] HKCFA 38, FACV 2, 3 & 4/2021
(5.11.2021).

Case Example
In Re Wong Chi Kin, unreported, CACV 80/2014 (26.9.2014),
the applicant, a former employee of the Marine Department, sought
leave to challenge various parts of the Report of the Commission
of Inquiry into the Collision of Vessels near Lamma Island on 1
October 2012 which, in his view, were erroneous and misleading.
The Court of Appeal only granted leave for the applicant to
challenge the parts of the report which concerned him personally.
As regards the other parts of the report, the Court of Appeal did not
regard the applicant as being directly affected by them and opined
that the Marine Department and the named officers were in a better
position than the applicant to challenge those findings.

20
Chapter 2 Is Judicial Review Available

In 803 Funds Ltd v Director of Buildings [2021] 2 HKLRD 1274,

[2021] HKCFI 1471, HCAL 2215/2020 (27.5.2021), the
applicant being an incorporated company limited by guarantee had
its object stated as “for the organisation and carrying out of
activities to promote law and order and civic-minded activities, on
a non-profit-making basis”. It sought to challenge the Director’s
decision not to take any enforcement action in respect of certain
unauthorised building works and/or change in use regarding the
property of a Legislative Councillor’s spouse. On standing, the
court observed that the applicant did not have any special
reputation, standing, history, knowledge or expertise regarding the
subject matter; nor did any member of the Applicant claim to have
any personal right or interest (financial, proprietary or otherwise)
over and above that of the general public or a section of the public
in the subject matter. There are prima facie other potential
challengers who have a more direct or immediate interest to see
enforcement actions being taken. The court thus held that the
applicant does not have a sufficient interest in the matter.

2.8 Hypothetical or Academic Question

2.8.1 The court shall not grant leave to apply for judicial review
if the question before the court is purely hypothetical or academic
in the sense that there are simply no events that have occurred that
form the basis for the question to be answered. However relevant
or important the question may be, the court will not give an
advisory opinion on hypothetical facts because, first, the court’s
function is to adjudicate on real disputes rather than imaginary
ones and, secondly, to decide on points of law or principle when
there are no facts before the court is undesirable for reasons such
as misapplication of the decision in different contexts. On the
other hand, sometimes the question before the court is said to be

21
Chapter 2 Is Judicial Review Available

hypothetical or academic only because the real dispute happens no

longer to be in existence at the time of the hearing; in deciding
whether to hear and determine the question in issue, the court will
closely examine the relevance or utility of any decision.

Case Example
In Chit Fai Motors Co Ltd v Commissioner for Transport [2004]
1 HKC 465, CACV 142/2003 (9.1.2004), the Court of Appeal
summarised the legal principles on determining whether the court
should entertain a question that is academic or hypothetical and, in
particular, held that the discretion to hear disputes in the area of
public law must be exercised with caution and appeals which are
academic between the parties should not be heard unless there is a
good reason in the public interest for doing so; in addition, where
the same point is likely or may well arise as between the same
parties, this is an a fortiori situation for the court to proceed to
determine the question in controversy.

2.9 Factual Disputes

2.9.1 An application for judicial review is inappropriate for
resolving substantial disputes of facts, and should not be used for
such purpose.

2.9.2 When dealing with an application for judicial review

which involves numerous factual allegations, the Court of First
Instance held in the case of The Hong Kong Journalists
Association v The Commissioner of Police & Anor [2021] 1
HKLRD 427, [2020] HKCFI 3101, HCAL 2915/2019 (21.12.2020)
that the suggestion of adopting an “assumed facts” approach
should be rejected. In some cases, the court may exercise

22
Chapter 2 Is Judicial Review Available

discretion to allow the proceedings with substantial factual

disputes to continue as if they had been begun by writ under Order
53, rule 9(5) of the Rules of the High Court (Cap. 4A).

Case Example
Sham Tsz Kit & Anor v Commissioner of Police & Anor [2021]
HKCFI 746, HCAL 2670/19 (24.3.2021) is an example of the
court considering the granting of leave to continue the judicial
review as if begun by writ. The court considered that most of the
applicants’ case depends on the proper resolution of substantial
disputes of facts, which was not possible to do on the basis of the
existing affidavit evidence that have not been tested by cross-
examination. The court did not dismiss the applicants’ case but
instead gave leave for the applicants to apply for an order that the
proceedings shall continue as if they had been begun by writ,
though the applicants did not take out such application and the
claim was dismissed at the end.

In The Hong Kong Journalists Association v The Commissioner

of Police & Anor [2021] 1 HKLRD 427, [2020] HKCFI 3101,
HCAL 2915/2019 (21.12.2020), the applicant challenged that the
Police had failed to facilitate lawful journalistic activities in the
course of public order events on and after 12.6.2019. The
challenges raised by the applicant were based on numerous
statements by journalists together with supporting evidence
alleging a series of ill-treatment against journalists. In dealing with
the issue as to whether the Police is under a legal duty to facilitate,
and not to hinder, lawful journalistic activities in the course of
public order events, the court rejected the suggestion of adopting
an “assumed facts” approach for being unworkable and
inappropriate for the reason (among others) that (i) the parties have
not agreed on any assumed facts, or any issues of laws to be
determined based on such assumed facts; and (ii) it served little or

23
Chapter 2 Is Judicial Review Available

no practical utility in granting the declarations sought as the

validity of which is dependent on the truth of the “assumed facts”.

2.10 Prevention of Abuse

2.10.1 The court can adopt various measures to stop persistent
abuse of process by litigants in judicial review proceedings. For
instance, it is within the inherent jurisdiction of the court to make
an order prohibiting a specific litigant from making further
applications to the court in existing proceedings without the leave
of a judge (known as “restricted application orders” (“RAO”)) or
from commencing, without the leave of a judge, fresh proceedings
which abuse the court’s process by seeking to re-litigate
proceedings which have already concluded (known as “restricted
proceedings orders”, “RPO”). The detailed guidance on how the
court would exercise its power to impose an RAO / RPO is set out
in Practice Direction 11.3 which can be found on the Judiciary’s
website.

2.10.2 Further, an application for an order under section 27 of

the High Court Ordinance (Cap. 4) may be made against a person
who has habitually and persistently and without any reasonable
ground instituted vexatious legal proceedings to prohibit such
person from instituting new proceedings or continuing any legal
proceedings instituted without the leave of the court.

Case Example
See Secretary for Justice v Ma Kwai Chun [2006] 1 HKLRD 539,
HCMP 1471/2005 (16.12.2005). The defendant had commenced
28 sets of High Court proceedings against various parties
(including various public figures and judicial officers), made a

24
Chapter 2 Is Judicial Review Available

large number of unnecessary interlocutory applications in the

proceedings and tended to exhaust every avenue of appeals. The
court held that before a section 27 order can be granted, the
requirement of proportionality should be satisfied: the court must
weigh whether a less draconian measure was sufficient. The court
was satisfied that an order under section 27 is a proportionate
response to her litigious behaviour, and thus made the said order.

See Secretary for Justice & Anor v Yuen Oi Yee & Ors [2006] 1
HKLRD 679, HCMP 1087/2005 (9.1.2006). The court granted
an RAO and an RPO against the defendant as she had abused the
legal process. The court also held that the terms of an RAO and
RPO must be proportionate to the extent of vexation caused by that
litigant. The tests were that: (a) the measures designed must be
rationally connected to the vexation occasioned or likely to be
occasioned by the litigious activities of the RPO litigant; and (b)
the means used to impair the right of access to court must be no
more than was necessary to accomplish the objective of curbing
the vexatious litigation of the RPO litigant.

See Director of Immigration v Etik Iswanti, [2021] HKCFI 1589,

HCMP 602/2021 (9.6.2021), and Director of Immigration v MD
Hasnain, [2021] HKCFI 1610, HCMP 603/2021 (9.6.2021). The
defendants are non-refoulement claimants. The court held that
their original and subsequent non-refoulement claims, and their
judicial review applications and appeals therefrom all relate to the
same subject matter and are manifestly groundless. The history of
their litigation constitutes an abuse of the court’s process, and
amounts to institution of vexatious legal proceedings on a habitual
and persistent basis. Thus, the making of a section 27 order is a
proportionate response. In the judgments, the court emphasised
that repeated actions evidencing a calculated attempt by a litigant
to delay an inevitable judgment or its execution, or a refusal to
accept the unfavourable final result of a litigation, or seeking to re-

25
Chapter 2 Is Judicial Review Available

open matters already determined in a previous action, may be

regarded as vexatious legal proceedings which would justify the
making of a section 27 order.

See Wahyuni v Director of Immigration [2021] HKCFI 1991,

HCAL 442/2021 (6.7.2021). The applicant’s original and
subsequent non-refoulement claims and her judicial review
applications and appeals therefrom all relate to the same subject
matter and are all unsuccessful. The court considered that her
repeated applications manifest a refusal to accept the unfavourable
outcome of the rejection of her non-refoulement claim, manifests
an attempt to relitigate her claim without viable grounds which has
been finally and conclusively determined by CFA, and constitutes
an abuse of court process. Thus the court imposed a RPO against
the applicant.

26
Chapter 3 Illegality

3. Illegality
An administrative decision may be set aside by way of
judicial review because of its illegality. The starting point is that
the decision-maker must understand correctly the law that
regulates his decision-making power and give effect to it.

3.1 Statutory Interpretation

3.1.1 Where the decision-making power is sourced from
legislation, its exercise depends on the proper construction of the
statute concerned. The modern approach to statutory interpretation
is commonly referred to as the “purposive approach”. The task is
to ascertain the intention of the legislature as expressed in the
language of the statute and adopt a purposive interpretation having
regard to the context and purpose of the statute. The ascertainment
of the intention of the legislature as expressed in the language of a
statute is an objective exercise. Section 19 of the Interpretation
and General Clauses Ordinance (Cap. 1) has been recognised by
the courts as giving statutory recognition of the purposive approach.

Interpretation and General Clauses Ordinance (Cap. 1)

19. General principles of interpretation
An Ordinance shall be deemed to be remedial and shall receive
such fair, large and liberal construction and interpretation as will
best ensure the attainment of the object of the Ordinance according
to its true intent, meaning and spirit.

3.1.2 The context of a statutory provision must be taken in its

widest sense. Among other matters, the object or purpose of a

27
Chapter 3 Illegality

statute may be ascertained from the long title to the original bill
and by reference to “legislative materials”, such as the Explanatory
Memorandum attached to the bill and the statements made by
Government officials in the course of proceedings in the legislature.
However, legislative materials are only admissible for identifying
the purpose of the statutory provision, not for construing its words.

Case Example
See T v Commissioner of Police (2014) 17 HKCFAR 593, FACV
3/2014 (10.9.2014). “The starting point in any exercise of statutory
interpretation is to look at the context and purpose of the relevant
provisions. As has been stated and reiterated in numerous recent
decisions of this Court, it is to context and purpose that one looks
first in examining the words under scrutiny. One does not begin
by looking at what might be termed ‘the natural and ordinary
meaning’, much less I would add a literal meaning, and then put
the onus on anyone seeking to advance different meaning to
establish some ground which compels acceptance of that different
meaning. It is context and purpose that will, in the vast majority
of cases, be determinative of the meaning of the words sought to
be construed, rather than attempting as a starting point to look at
words in a vacuum.” (per Ma CJ, at para 4)

3.1.3 In case of any divergence in meaning between the

Chinese and the English texts of an Ordinance, the Ordinance has
to be construed in accordance with section 10B(3) of the
Interpretation and General Clauses Ordinance (Cap. 1), i.e.
adopting the meaning which best reconciles the texts, having
regard to the object and purpose of the Ordinance.

3.1.4 More detailed discussion on the rules of statutory

interpretation can be found in “Legislation about Legislation – a

28
Chapter 3 Illegality

general overview of Hong Kong’s Interpretation and General

Clauses Ordinance (Cap. 1)” published on the website of the
Department of Justice 2.

3.2 Exercise of Discretion

3.2.1 Where the decision involves the exercise of discretionary
power, it is a fundamental principle that such discretionary power
should be exercised only by those to whom it is given and that they
should retain it unhampered by improper constraints or restrictions.
It should also be exercised reasonably, in good faith, on proper
grounds and in accordance with the principles of natural justice. In
other words, it must not be abused.

3.3 Grounds of Illegality

3.3.1 There are a number of grounds upon which a court might
hold that a decision has been made illegally. These grounds
include:

Grounds in relation to the basis of power:

(a) The empowering legislation is in contravention of the Basic

Law;

(b) The subsidiary legislation which confers power on the

decision-maker is ultra vires the primary legislation;

(c) The meaning of empowering subsidiary legislation cannot be

ascertained;

2
https://www.doj.gov.hk/en/publications/pdf/2010/ldd20101118e.pdf

29
Chapter 3 Illegality

(d) The decision-maker acts in excess of his power;

Grounds in relation to the manner in which the power is exercised:

(e) Power not exercised by the person entrusted with the power:

(i) The power conferred upon one authority is in substance

exercised by another;

(ii) There is unlawful delegation of power;

(f) Errors:

(i) There is a decisive error of law;

(ii) The decision is materially influenced by a material error

of facts;

(g) Irrelevant considerations:

(i) The decision-maker takes into account an irrelevant

consideration or fails to take into account a relevant
consideration;

(h) Failure to observe the non-fettering principle:

(i) The exercise of a discretion by the decision-maker is

fettered as the decision-maker acts under dictation or
applies the policy rigidly without regard to the merits of
the particular case;

(ii) The decision-maker misinterprets or misapplies an

established policy;

(i) Improper purposes and bad faith:

(i) The decision is motivated by an improper purpose;

30
Chapter 3 Illegality

(ii) The decision is made in bad faith; and

(iii) There is an inordinate delay for the decision-maker to

make the decision

These grounds will be discussed below.

Grounds in relation to the basis of power

Contravention of the Basic Law
3.3.2 Executive acts must not contravene the provisions of the
Basic Law, including those concerning human rights. Any
executive act which contravenes the Basic Law may be set aside in
judicial review proceedings on grounds of illegality.

3.3.3 Details of constitutional challenges to legislation and

executive acts are covered in Chapter 6 below.

Ultra vires subsidiary legislation

3.3.4 The term “subsidiary legislation” or “subordinate
legislation” is defined under section 3 of the Interpretation and
General Clauses Ordinance (Cap. 1) as “any proclamation, rule,
regulation, order, resolution, notice, rule of court, bylaw or other
instrument made under or by virtue of any Ordinance and having
legislative effect”. It is common that powers exercised by public
officers are derived from subordinate legislation.

3.3.5 It is a general principle that subsidiary legislation must be

confined within the scope of the primary legislation, i.e. the
Ordinance enacted by the Legislative Council under which the
subsidiary legislation is made. It cannot contradict or enlarge the
scope of authority conferred by the primary legislation.

31
Chapter 3 Illegality

3.3.6 The maker of a piece of subsidiary legislation acts “intra

vires” if the effect of the legislation remains within the scope of
the authority conferred by the primary legislation; and acts “ultra
vires” if he ventures beyond the limits. In order to ascertain if a
piece of subsidiary legislation is “ultra vires”, it is necessary to
construe: (1) the primary legislation which delegates the power to
make law, and (2) the provision in the subsidiary legislation which
is alleged to be beyond the power conferred.

3.3.7 Subsidiary legislation is susceptible to judicial review if

it is ultra vires. It has been held that the courts of Hong Kong
should adopt a benevolent construction of subsidiary legislation
and there is a presumption against legislation being intended to
provide what is inconvenient or unreasonable, see Singway Co Ltd
v AG [1974] HKLR 275, HCA 3826/1973 (20.6.1974).

3.3.8 Subsidiary legislation may be enacted to stipulate the

manner of exercise of the power in the primary legislation, which
is legitimate and more often than not necessary and
desirable. However, if the subsidiary legislation is inconsistent
with the primary legislation by which the enabling power is
conferred, it offends section 28(b) of the Interpretation and General
Clauses Ordinance (Cap. 1) and is ultra vires. See Cheung Yick
Hung v The Law Society of Hong Kong [2016] 5 HKLRD 466,
HCMP 1304/2016 (5.10.2016).

3.3.9 As a general rule, a power to regulate an activity under

the primary legislation does not prima facie give the maker of
subsidiary legislation the power to prohibit the activity totally.
Prohibition of an activity in part may, however, be needed for
effective regulation and approved, see Ng Enterprises Limited v
The Urban Council [1996] 2 HKLR 437 (29.7.1996).

32
Chapter 3 Illegality

Uncertainty
3.3.10 Subsidiary legislation whose meaning cannot be
ascertained with reasonable certainty is ultra vires and void.

See Wade & Forsyth, Administrative Law, 11th edn, p 741. “A

regulation or byelaw whose meaning cannot be ascertained with
reasonable certainty is ultra vires and void. Thus a local authority
byelaw which ordained that ‘no person shall wilfully annoy
passengers in the streets’ was struck down. And a byelaw
forbidding the flying of hang-gliders over a pleasure ground
without specifying the height below which the offence was
committed was also invalid.”

Acting in excess of power

3.3.11 A decision-maker must act within the power conferred by
the law. If a decision-maker does something for which no power
has been granted or in excess of the conferred power, the decision
is liable to be quashed by the court.

Case Example
In Wong Kam Kuen v The Commissioner for Television and
Entertainment Licensing [2003] 3 HKLRD 596, CACV 41/2003
(30.7.2003), the court held that it was ultra vires the powers of the
Commissioner to impose his own views of indecency and
obscenity in assessing whether a game installed by an amusement
game licensee was in breach of a licensing condition because such
matters fell within the purview of the Control of Obscene and
Indecent Articles Ordinance (Cap. 390). If the Commissioner

33
Chapter 3 Illegality

considered that a game in question was obscene, he should submit

the game to the Obscene Articles Tribunal for assessment.

3.3.12 Whether an incidental power should be inferred must be

viewed in the context of the express power conferred by the statute
to see whether the implied power is reasonably required for the
effective exercise of that express power. A power would not be
implied for reasons of convenience and desirability. Also, an act
done in the public interest does not in itself confer the necessary
jurisdiction on the decision-maker.

Case Example
In Man Hing Medical Suppliers (International) Ltd v The
Director of Health [2015] 3 HKLRD 224, HCAL 62/2014
(21.5.2015), the Director of Health ordered recall of a product that
was suspected to be unregistered proprietary Chinese medicine.
There was no express power under the Chinese Medicine
Ordinance (Cap. 549) (“CMO”) to order recall. The court found
that the ordinary meaning of the words of the power to “seize,
remove and detain” was different in nature from the meaning of
“recall”. It was held that a power to order recall was not reasonably
necessary for the effective exercise of the power to seize, remove
and detain under sections 146(2)(c) and (f) of the CMO. As a
matter of principle the court should not imply a power for reasons
of convenience and desirability.

34
Chapter 3 Illegality

Grounds in relation to the manner in which the

power is exercised
Power not exercised by the person
entrusted with the power
(i) Power in the wrong hands
3.3.13 An arrangement by which a power conferred upon one
authority is in substance exercised by another is unlawful and such
exercise of power is invalid.

Case Example
See Re Hong Kong Hunters’ Association Ltd [1980] HKLR 179,
HCMP 57/1980 (8.2.1980). The Director of Agriculture and
Fisheries was the licensing authority for the issue of game licences
under the repealed section 14 of the Wild Animals Protection
Ordinance (Cap. 170). On 4 December 1979, the Executive
Council advised and the Acting Governor ordered that game
hunting should be prohibited and that appropriate amendments
should be made to the Ordinance. Pursuant to that directive, the
Director refused those applications without any explanation before
the Ordinance was duly amended. The court held that the Director
has failed to exercise his discretion under section 14 of the
Ordinance thereby acting contrary to the provisions of the law.
The court stated that, in his capacity as licensing authority, the
Director must exercise his discretion independently and judicially
to the best of his ability in accordance with the provisions of the
Ordinance but not to have been fettered by the directive of the
Executive Council.

35
Chapter 3 Illegality

(ii) Unlawful delegation of power

3.3.14 The presumed intention of the legislature is that
discretionary power should be exercised by the authority upon
whom it is conferred, and by no one else. The principle is strictly
applied, even where it causes administrative inconvenience, except
in cases where it may reasonably be inferred that the power was
intended to be delegable.

3.3.15 Power to delegate will be construed by the courts in the

same way as other powers, and will not extend to sub-delegation
in the absence of some express or implied provision to that effect.
In the case of judicial or disciplinary functions the courts may
construe general powers of delegation restrictively.

Case Example
See Rowse v The Secretary for the Civil Service & Ors [2008] 5
HKLRD 217, HCAL 41/2007 (4.7.2008). The applicant, a senior
civil servant, was charged with misconduct in discharging his
duties relating to the sponsorship of a festival of music for Hong
Kong. Disciplinary proceedings were commenced. The various
charges against him were either substantiated or partially
substantiated. He appealed to the Chief Executive. The Chief
Executive delegated his power to hear an appeal to the Chief
Secretary for Administration who subsequently rejected the
applicant’s representations. The court held that the Chief
Executive’s delegation to the Chief Secretary was invalid, and it
followed that the Chief Secretary’s decision made pursuant to that
delegation was also invalid. The court stated, “In all the
circumstances, I am unable to find any convincing grounds for
concluding that, despite the apparent contrary intention appearing
in the Administration Order, the Order is to be read as giving an
implied power to the Chief Executive to delegate his powers and

36
Chapter 3 Illegality

functions under section 20.” (per Hartmann J (as he then was) at

paras 231 & 232)

3.3.16 In practice, a great deal of delegation is required for the

operation of the Government. This has to be authorised by statute,
either expressly or impliedly. Under section 43 of the
Interpretation and General Clauses Ordinance (Cap. 1), there is a
wide general power of delegation that will allow delegation by
specified public officers in many cases.

Case Example
In Ng Chi Keung v Secretary for Justice [2016] 2 HKLRD 1330,
HCAL 27/2013 (21.4.2016), it was held that the Secretary for
Justice (“SJ”) had the power to intervene under section 14(1) of the
Magistrates Ordinance (Cap. 227). He had the power to delegate
his duties to any legal officer under section 7 of the Legal Officers
Ordinance (Cap. 87) and section 43 of the Interpretation and
General Clauses Ordinance (Cap. 1). It was held that in the
absence of evidence to the contrary, SJ must be deemed to have
delegated the power to intervene the private prosecution to the
Director of Public Prosecutions.

3.3.17 The person who made the delegation can always exercise
the power himself or cancel or vary any delegation. See section 44
of the Interpretation and General Clauses Ordinance (Cap. 1).

3.3.18 Delegation should be distinguished from agency,

although there are similarities between the two concepts. A public
authority is at liberty to employ agents in the execution of its
powers. It may thus employ lawyers in legal proceedings or
consultants in construction projects. The important element is that

37
Chapter 3 Illegality

it should take its decisions of policy itself, and observe any

statutory requirements scrupulously.

3.3.19 An unauthorised act of an agent may generally be ratified

by the principal but the unauthorised act of the delegate, in the
absence of statutory authority, cannot be ratified by the delegator.
Public authorities are generally allowed to ratify the acts of their
agents retrospectively, both under the ordinary rules of agency and
under liberal interpretation of statutes. Occasionally the court may
invoke the rules of agency to justify a questionable delegation.

3.3.20 In the context of government departments and bureaux,

another relevant principle is the “Carltona principle”. It is derived
from the famous English Court of Appeal case (Carltona Ltd v
Commissioner of Works [1943] 2 All ER 560 (6.10.1943)), and is
the basis on which civil servants exercise their ministers’ powers.
As explained by Lord Greene MR in that case (at 563), it is widely
recognised in many jurisdictions that the “functions which are
given to ministers … are functions so multifarious that no minister
could ever personally attend to them … The duties imposed upon
ministers and the powers given to ministers are normally exercised
under the authority of the ministers by responsible officials of the
department. Public business could not be carried on if that were
not the case”.

3.3.21 This is not considered true delegation because the official

acts not as a delegate but in his minister’s name. Legally and
constitutionally the act of the official is the act of the minister,
without any need for specific authorisation in advance or
ratification afterwards. The minister is responsible for anything
that his officials have done under his authority. Even where there
are express statutory powers of delegation they are not in fact
employed as between the minister and his own officials. The case

38
Chapter 3 Illegality

would be different where the official is to be empowered to act by

way of delegation in his own name rather than the minister’s.

3.3.22 There are limits to the applicability of the Carltona

principle. It generally applies only to the departments of the
Government, and not to other statutory bodies or executive
agencies. It does not cover those situations in which the minister
is expected to exercise a power personally and not through officials,
such as hearing statutory appeals or petitions.

See Wade & Forsyth, Administrative Law, 11th edn, p 268. “On
this approach legal responsibility, not accountability to Parliament,
determines the reach of the Carltona principle; and it thus extends
beyond central government … (But) the application of the Carltona
principle to executive agencies has been persuasively criticised on
the ground that ministerial responsibility for such agencies is too
weak to justify its application.”

3.3.23 The Carltona principle is acknowledged in Hong Kong,

but its application is relatively rare because of the wide general
power of delegation already mentioned.

Case Example
See HKSAR v Lee Ming Tee & Anor (2001) 4 HKCFAR 133,
FACC 8/2000 (22.3.2001). The Financial Secretary appointed an
inspector to undertake an investigation into the affairs of the
defendant’s companies. The inspector’s work was monitored by
the Steering Group chaired by the Deputy Secretary for Monetary
Affairs (“DSMA”) on behalf of the Financial Secretary. The CFA
approved of the position that the DSMA was to be regarded as the
Financial Secretary’s representative, and stated by way of obiter

39
Chapter 3 Illegality

dicta that the Carltona principle applied to “a Secretary in the

HKSAR Government”. (per Ribeiro PJ at 153)

Errors
(i) Decisive error of law
3.3.24 Apart from the example of a decision-maker making an
error as to the meaning and scope of the relevant power-conferring
law, a decision is also liable to be quashed if the decision-maker
makes any other decisive error of law in the course of coming to
the decision.

Case Example
See PCCW-HKT Telephone Ltd & Anor v The Secretary for
Commerce and Economic Development & Anor (2017) 20
HKCFAR 592, FACV 11/2017 (27.12.2017). This is a case of
error of law on the interpretation of statutory provisions. It was
held that it was an error of law to fail to construe the relevant
provisions of the Telecommunication Ordinance (Cap. 106) and
the Trading Funds Ordinance (Cap. 430). On proper construction,
they did not permit the prescribing of a licence fee which included
an element of what in substance was a tax upon the licensee nor
permit the Office of the Telecommunications Authority to include
the projections for notional tax or dividends as surplus funds in the
budgets of its trading fund.

(ii) Material error of fact

3.3.25 Traditionally, the court’s function in judicial review
proceedings is limited to reviewing the legality of the decision-

40
Chapter 3 Illegality

making process and the courts have been reluctant to review the
factual basis of decisions.

3.3.26 However, it is now recognised that a material error of fact

may constitute a self-standing ground of review under the concept
of illegality. It is based on the principle that it is unfair to leave an
applicant with no remedy where a clear error of fact has had a
material effect upon the decision or the action taken.

Case Example
In Smart Gain Investment Ltd v Town Planning Board & Anor,
unreported, HCAL 12/2006 (6.11.2007), the Applicant applied
for judicial review against the decision of the Town Planning Board
(the “Board”) in relation to the Applicant’s objections to include
four pieces of agricultural land which it owned into a
“Conservation Area” zone under the Draft Outline Zoning Plans.
One of the reasons that the Town Planning Board dismissed the
applicant’s objections was that the sites “comprised wooded slopes
and river valley”, which the court found as plainly a mistake of fact
based on evidence from a site visit. It was held that such mistake
of fact gave rise to objective unfairness. The court allowed the
application for judicial review, and quashed the Board’s decision
and remitted the decision to the Board for reconsideration.

Irrelevant considerations
3.3.27 A decision-maker must consider all relevant factors in
making the decision and ignore irrelevant ones. Normally relevant
factors include: (i) statutory criteria and purpose; (ii) any relevant
policies; and (iii) the merits of the individual case. In the meantime,
a decision-maker must not take into account an irrelevant

41
Chapter 3 Illegality

consideration. Political factors are normally irrelevant, unless they

are written into the statute.

Case Example
In Capital Rich Development Ltd & Anor v Town Planning
Board [2007] 2 HKLRD 155 (18.1.2007), the Court of Appeal
held that the Town Planning Board (“TPB”) had taken into account
financial considerations in devising a redevelopment scheme to
regenerate an area in Sheung Wan. Such consideration was held
to be an irrelevant consideration and had a substantial or material
influence upon TPB’s decision. TPB’s decision was thus quashed.

3.3.28 In a decision involving the weighing of many complex

factors, it will always be possible to point to some factors which
should arguably have been taken into account or left out of account;
even if they should have been, the court should not intervene unless
it is convinced that this would have resulted in the decision going
the other way.

Case Example
In Kaisilk Development Ltd v Secretary for Planning,
Environment and Lands, unreported, HCAL 148/1999
(10.3.2000), one of the grounds relied on by the Applicant was the
Secretary’s failure to take into account a relevant consideration,
namely, a valuation report prepared by the surveyor instructed by
the Applicant. The court held that the report was a critique of the
method of valuation adopted by the Land Development
Corporation, which was based on historic data. Once the Secretary
was satisfied that the assessment should be based on current market
value rather than historic data, the report would not have

42
Chapter 3 Illegality

influenced him at all and thus this ground of judicial review did not
succeed.

Failure to observe the non-fettering

principle
(i) Fettering discretion
3.3.29 When the legislature confers on a particular authority the
discretion to make a decision, only that authority may exercise the
discretion (subject to proper and lawful delegation). If the
decision-maker allows his discretion to be fettered by: (a) acting
under dictation; or (b) adopting an over-rigid policy, the decision
is liable to be quashed.

3.3.30 Acting under dictation: An authority delegated with a

statutory discretion must address the matter for consideration on
its own. It cannot mechanically accept instructions from, or adopt
the view of, another authority as to the manner of exercising its
discretion in a particular case, unless that other authority has been
expressly empowered to give such direction or unless the deciding
authority or officer is a subordinate element in an administrative
hierarchy within which instructions from above may properly be
given on the question at issue. See para 3.3.13 above and Re Hong
Kong Hunters’ Association Ltd [1980] HKLR 179, HCMP
57/1980 (8.2.1980).

3.3.31 Adopting an over-rigid policy: Departmental policies and

guidelines are legitimate provided that they do not contradict the
aim of the legislation and are not followed so inflexibly that they
fetter discretion. The general rule is that anyone who has a
statutory discretion must not ‘shut his ears to an application’, see
British Oxygen Co Ltd v Board of Trade [1971] AC 610
(15.7.1970). Each case must be considered on its own merits. An

43
Chapter 3 Illegality

authority can fail to give its mind to a case, and thus fail to exercise
its discretion lawfully, by blindly following a policy laid down in
advance.

Case Example
In Wise Union Industries Ltd v Hong Kong Science and
Technology Parks Corporation [2009] 5 HKLRD 620, HCAL 12
& 13/2009 (13.10.2009), the court held that a decision-maker must
not apply his policy blindly or rigidly and the policy it adopted
must fairly admit of exceptions. Even if, on the face of it, a policy
did not preclude the decision-maker from departing from it, an
actual rigid implementation of the policy was still unacceptable.

3.3.32 However, the above rules ought not to be carried to the

extreme of prohibiting a government department from consulting
other authorities, or of preventing the Administration from
devising its policy or acting in accordance with its policy. There
is always a difference between seeking advice and then genuinely
exercising one’s own discretion and acting obediently or
automatically under someone else’s advice or directions. Similarly,
a public authority may properly take into account any relevant
government policy in its decisions, provided that it genuinely
decides each case based on its own merits.

3.3.33 Contractual fetters on Discretion: An authority’s powers

may include the making of binding contracts. Like policies,
contracts may be inconsistent with an authority’s proper exercise
of its discretion. In general, an authority may not by contract fetter
itself so as to disable itself from exercising its discretion as
required by law. Any such contract would be ultra vires, void and
unenforceable in law. The prime duty of an authority is to preserve

44
Chapter 3 Illegality

its own freedom to decide in every case as the public interest

requires at the time.

Case Example
See Fairland Overseas Development Co Ltd v Secretary for
Justice [2007] 4 HKLRD 949, HCA 2154/2005 (31.8.2007). The
Government had agreed with the plaintiff that in return for the
plaintiff withdrawing its objection to the proposed resumption of a
small part of a private road for the construction of a new road, the
Government would, upon the opening of the new road, erect traffic
signs prohibiting container vehicles from entering the private road
thus preserving the environmental amenity of the area. The court
held that such contract was unenforceable in law as being ultra
vires. “The Commissioner cannot divest himself of authority so as
to become powerless to act. This contract would in substance have
the effect of transferring the exercise of the statutory discretion
from the Commissioner to the plaintiff – a type of unlawful
subdelegation … The contract did not impair the Commissioner’s
discretion; it denied it… It was a dictation by the plaintiff and
equally became an abdication by the Commissioner. Neither is
allowed – here there was both.”

3.3.34 However, it would be wrong to conclude that a public

authority can always escape from its contractual obligations by
contending that it fetters its discretion. There will often be
situations where a public authority must be at liberty to bind itself
for the very purpose of exercising its powers effectively. Expressly
or impliedly LegCo grants contractual capacity to many public
bodies in order that they can effectively fulfil their functions.
Effectively entering into some contracts is part of many public
bodies’ statutory birthright. Since most contracts fetter freedom of
action in some way, there may be difficult questions of degree in

45
Chapter 3 Illegality

determining how far the authority may legally commit itself for the
future.

See Wade & Forsyth, Administrative Law, 11th edn, p 278. “The
important question is whether there is incompatibility between the
purposes of the statutory powers and the purposes for which the
contract is made. In cases where there is no commercial element
the court is normally ready to condemn any restriction on a public
authority’s freedom to act in the public interest. Thus a planning
authority cannot bind itself by contract either to grant or to refuse
planning permission in the future. In one case (Triggs v Staines
Urban District Council [1969] 1 Ch 10 (12.2.1968)) a local
authority designated a sports ground as a proposed public open
space, but made a formal agreement with the owner that this
designation should cease to operate if the authority had not
purchased the land by a certain time, that it would not purchase the
land either voluntarily or compulsorily during a certain period, and
that it would not make any claim for betterment. All these
undertakings were void as clearly incompatible with the
authority’s duty to preserve its powers intact.”

(ii) Misinterpretation or misapplication

of established policy
3.3.35 It is essential that a policy which has been applied by a
decision-maker is properly understood, interpreted and applied. If
the decision-maker fails properly to understand the policy, the
decision would be as defective as it would be if no regard had been
paid to the policy.

46
Chapter 3 Illegality

Case Example
In Leung Kam Yung Ivy v Commissioner for Television and
Entertainment Licensing & Anor [2001] 2 HKC 555, HCAL
1986/2000 (30.3.2001), the Applicant held a licence for operating
a mahjong parlour. The relevant policy statement indicated that a
balanced view would be taken on the degree of public reaction to
an application for licence and the general environment of the
vicinity of the proposed gaming premises. Upon the surrender of
tenancy at the existing premises, the Applicant’s licence was
suspended and her applications for relocation were rejected on the
basis that “there was no cogent need” for gaming tables in the
district. The court held that the Commissioner imported the word
“cogent” into the consideration, which set a more stringent
standard and distorted the policy. The evidence also showed the
absence of balance in the overall consideration. The
Commissioner’s decision was quashed.

3.3.36 Policy statements must be read in their proper contexts

and with common sense. They should be read in the way in which
an educated person acquainted with the factual context would do
so, giving it its plain and ordinary meaning.

Case Example
In Hong Kong Television Network Ltd v Chief Executive in
Council [2016] 2 HKLRD 1005, CACV 111/2015 (6.4.2016), the
question is whether the “gradual and orderly approach” in granting
additional free television licences adopted by the Chief Executive
in Council (“CEIC”) departed from the general policy statements
which said: “There is no pre-set ceiling on the number of licences
to be issued” was considered. It was held that policy statements

47
Chapter 3 Illegality

must be read in their proper contexts and with common sense. A

policy statement must be read as a whole, and undue emphasis on
individual expressions or passages in isolation is inappropriate. In
all cases, one must bear firmly in mind the context and background,
in order to have a full and complete understanding of the policy
concerned (at para 55). It was held that by adopting the gradual
and orderly approach, the CEIC was not departing from the general
policy statements. He was simply adopting a particular mode or
manner in which to implement the policy statements and achieve
the policy objectives concerned. There was neither a
misunderstanding of the relevant policy statements nor a departure
from them (at para 76).

3.3.37 The ground that a decision-maker failed to follow,

misinterpreted or misapplied an established policy can also be used
to support a ground of review premised on irrationality (see
Chapter 4 below for details) or failure to give effect to a procedural
or substantive legitimate expectation (see Chapter 5 below for
details).

Improper purposes and bad faith

(i) Improper purposes
3.3.38 Where a statute confers a power on a decision-maker, he
must use that power for a purpose intended by the statute (the
Padfield principle). If a power granted for one purpose is exercised
for a different purpose, that power has not been validly exercised.
Such an abuse of power may be manifested by an improper motive,
and may equally be the result of an honest misunderstanding of the
nature and extent of powers conferred upon a public authority.
Where the purpose of a power is not spelt out in the statute, the

48
Chapter 3 Illegality

court will determine what, if any, the implied restrictions on its

exercise should be.

Case Example
In The Incorporated Owners of Wah Kai Industrial Centre,
Texaco Road & Ors v Secretary for Justice [2000] 2 HKLRD 458,
HCAL 120/1999 (1.3.2000), the court laid down the tests on
whether an administrative act was done for an improper purpose
(at pp 475I to 476H), which are summarised as follows:
(i) If the actor has in truth used his power for the purpose for
which it was conferred, it is immaterial that he achieved as
well a subsidiary object;
(ii) If the actor pursues more than one purpose, the legality of the
act is determined by reference to the dominant purpose. A
purpose is not dominant if the power would still have been
exercised without regard to that purpose; and
(iii) Where an unauthorised purpose has in fact been pursued, the
question is then whether the act had been significantly or
substantially influenced by it. If the actor would have come
to the same decision having regard to only the authorised
purposes, the act can still be upheld.

(ii) Bad faith

3.3.39 A statutory power is exercised unlawfully if it is not
exercised honestly and in good faith. Cases of bad faith are rare.
In some cases this ground is applied alongside the ground of
improper purposes.

49
Chapter 3 Illegality

Inordinate delay
3.3.40 Inordinate delay in performing a legal duty such as
determining an application for a licence or an objection may
amount to an abuse and is susceptible to judicial review. See Kong
Tai Shoes Manufacturing Co Ltd v Commissioner of Inland
Revenue [2012] 4 HKLRD 780, HCAL 34/2011 (30.9.2011).

3.3.41 In the absence of a stated time limit, it would be necessary

to seek assistance from section 70 of the Interpretation and General
Clauses Ordinance (Cap. 1) which provides that: “Where no time
is prescribed or allowed within which anything shall be done, such
thing shall be done without unreasonable delay, and as often as due
occasion arises.”

3.4 Estoppel, Waiver, Consent and

Discretion
3.4.1 Estoppel as a principle of law is, in essence, that a person
who by some statement or representation of fact causes another to
act to his detriment in reliance on the truth of it is not allowed to
deny it later, even though it is wrong. In public law, the doctrine
of estoppel cannot be invoked where its application is incompatible
with the free and proper exercise of an authority’s powers or the
due performance of its duties in the public interest. Nor can
estoppel be pleaded to justify action which is ultra vires.

3.4.2 Estoppels, however, have been allowed to operate against

public authorities in minor matters of formality, where no question
of ultra vires arises.

50
Chapter 3 Illegality

Case Example
See Wells v Minister of Housing and Local Government [1967] 1
WLR 1000 (CA) (11.5.1967). In that case, the court held that it
could ignore the fact that the proper statutory application had not
been made before a planning authority’s determination, since the
authority itself had led the landowner to suppose that it was not
required. The authority was thus estopped from taking the
objection. “Now I know that a public authority cannot be estopped
from doing its public duty, but I do think it can be estopped from
relying on technicalities.” (per Lord Denning MR at 1007)

3.4.3 In a similar vein, no waiver or consent can legitimise

action of an authority which is ultra vires.

See Wade and Forsyth, Administrative Law, 11th edn, pp 198-

199. “Waiver and consent are in their effects closely akin to
estoppel, and not always clearly distinguishable from it. But no
rigid distinction need be made, since for present purposes the law
is similar. The primary rule is that no waiver of rights and no
consent or private bargain can give a public authority more power
than it legitimately possesses. Once again, the principle of ultra
vires must prevail when it comes into conflict with the ordinary
rules of law. A contrasting rule is that a public authority which has
made some order or regulation is not normally at liberty to waive
the observance of it by exercising a dispensing power. The
principle here is that law which exists for the general public benefit
may not be waived with the same freedom as the rights of a private
person. In other cases, where neither of these rules is infringed,
waiver and consent may operate in a normal way so as to modify
rights and duties.”

51
Chapter 3 Illegality

3.4.4 While the law in relation to contractual fetters on

discretion, estoppel, waiver and consent may create injustice in
certain circumstances where the person aggrieved might have
relied upon an authority’s undertaking, representation or
misleading advice, the person aggrieved is not without redress.
Where appropriate, the person may rely on the protection of
legitimate expectation (see Chapter 5) which may have taken the
place of estoppel. The private law action in negligent misstatement
and other appropriate remedies detailed in Chapter 10 may also
provide solutions. Such remedies are important points to be noted.

52
Chapter 4 Irrationality

4. Irrationality

4.1 Wednesbury Unreasonableness

4.1.1 Discretionary powers of public authorities have to be
exercised reasonably. This, however, does not mean a decision
may be struck down simply because the judge thinks that it is
unreasonable or had he been the decision-maker he would have
made a different decision.

4.1.2 In judicial review, what is meant by “reasonable” is that

the public authority’s decision must not be “Wednesbury
unreasonable” (or irrational). This term is derived from the case
of Associated Provincial Picture Houses v Wednesbury
Corporation [1948] 1 KB 223 (10.11.1947). It means the decision
is so absurd that no sensible person could have properly made it.
The test clearly requires a high degree of unreasonableness.

Case Example
See Associated Provincial Picture Houses v Wednesbury
Corporation [1948] 1 KB 223 (10.11.1947). “… if a decision …
is so unreasonable that no reasonable authority could ever have
come to it, then the courts can interfere. … but to prove a case of
that kind would require something overwhelming …” “It is true
the discretion must be exercised reasonably. … For instance, a
person entrusted with a discretion must, so to speak, direct himself
properly in law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has to
consider. … Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the powers of

53
Chapter 4 Irrationality

the authority. Warrington LJ in Short v Poole Corporation gave

the example of the red-haired teacher, dismissed because she had
red hair. This is unreasonable in one sense. In another sense it is
taking into consideration extraneous matters. It is so unreasonable
that it might almost be described as being done in bad faith; and,
in fact, all these things run into one another.” (per Lord Greene MR
at 229, 230)

The principle was later articulated in Council of Civil Service

Unions v Minister for the Civil Service [1985] AC 374
(22.11.1984) by Lord Diplock that a decision is said to be
“Wednesbury unreasonable” if it is “so outrageous in its defiance
of logic or accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have
arrived at it.” (at 410)

4.1.3 Hong Kong courts have from time to time been invited to
consider the doctrine of irrationality (especially in judicial reviews
involving decisions made by tribunals), and have provided
illustrations of where the line is to be drawn between reasonable
and unreasonable decision-making. The above principle as
articulated by Lord Diplock has been applied in, for instance, the
Court of Appeal in Chan Heung Mui & Ors v The Director of
Immigration, unreported, CACV 168/1992 (24.3.1993).

Case Example
In 803 Funds Limited v Secretary for Education [2021] 4
HKLRD 735, [2021] HKCFI 2874, HCAL 1969/2020
(28.9.2021), the Court of First Instance held that the question of
whether more harm or prejudice than benefit would result from the
disclosure of the information withheld is a matter for the Education
Bureau to consider. The court took the view that “the threshold for

54
Chapter 4 Irrationality

judicial review on the ground of Wednesbury unreasonableness is

a high one, particularly in relation to a decision based on the
weighing of conflicting public interests. There is not a simple,
right or wrong, answer to the question of whether more harm or
prejudice than benefit would result from the disclosure of the
withheld information to the Applicant. The answer to such
question is a matter of judgment and depends on a host of public
policy considerations which fall within the province of EDB. EDB
is in a much better position than the court to judge whether the
harm or prejudice that would result from the disclosure of the
withheld information would outweigh any benefit from such
disclosure.”

4.2 Proportionality and Fundamental

Rights
4.2.1 In addition to Wednesbury unreasonableness, the
principle of proportionality has emerged in the context of judicial
scrutiny of public authorities’ decisions affecting rights protected
by the Basic Law or the Hong Kong Bill of Rights Ordinance (Cap.
383). The substantive review of administrative decisions affecting
fundamental rights has developed under the influence of human
rights law. You may wish to refer to Chapter 6.6 of this Guide for
more detailed discussions.

55
Chapter 5 Procedural Impropriety

5. Procedural Impropriety

5.1 Natural Justice

5.1.1 Practically any public officer who decides anything
affecting the rights, interests or legitimate expectations of the
public will be under a “duty to act fairly” or to obey the “rules of
natural justice” (these two expressions being used
interchangeably). Broadly speaking, this means that the decision-
maker must be unbiased and that he must give an appropriate
chance to make representations to those affected before he makes
the decision.

5.1.2 The decision-maker who decides only after complying

with the duty to act fairly will be better informed of the
consequences and implications of his decision and thus tend to
make a better decision.

Case Example
See Thapa Indra Bahadur v Secretary for Security (1998-1999)
8 HKPLR 77, HCAL 18/1999 (21.10.1999), “… there is a
common law duty to act fairly, in the sense of according procedural
fairness in the making of administrative decisions which affect
rights, interest and legitimate expectations, subject only to clear
manifestation of a contrary statutory intention.” “… The reference
to ‘right or interest’ … must be understood as relating to personal
liberty, status, preservation of livelihood and reputation as well as
to proprietary rights and interest.”

56
Chapter 5 Procedural Impropriety

5.1.3 The rules of natural justice are of varying contents. They

are not written on “tablets of stone” but vary with the precise
context. The underlying concept is that what the requirements of
fairness demand when anybody, domestic, administrative or
judicial, has to make a decision which will affect the rights of
individuals depend on 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.

5.1.4 The legislature is presumed to intend that the rules of

natural justice are to be followed when it grants discretion to
officials. Thus statutes will not be interpreted so as to exclude the
rules unless the legislature intended to oust them in very clear
terms. For example, in Lau Ping v R [1970] HKLR 343, CACC
120/1970 (6.6.1970), the Court of Appeal in the context of a
detention of a vehicle pursuant to a regulation now repealed held
that, in the absence of any express provision, the abrogation of the
common law principle that no man should be deprived of his
property without first being given an opportunity of being heard
meant that such regulation was ultra vires.

5.1.5 Whether fairness is required in the performance of a

public function and what is involved in order to achieve fairness is
for the decision of the courts as a matter of law (see for example
Pearl Securities Ltd v Stock Exchange of Hong Kong Ltd [1999] 2
HKLRD 243, HCAL 39/1998 (9.2.1999)).

5.1.6 The rules of natural justice require decision-makers to

comply with procedural safeguards when making a decision which
may have adverse effect on a person. The procedural safeguards
include:

(a) Right to a fair hearing;

(b) Rule against bias; and
(c) Protection of legitimate expectation.

57
Chapter 5 Procedural Impropriety

5.2 Right to a fair hearing

5.2.1 Fairness does not require an oral hearing in all cases. The
obligation is to receive and consider representations which may be
in writing. The essential trigger for an oral hearing is whether a
dispute of fact arises that will only be able to be resolved by oral
evidence. In ST v Betty Kwan & Anor, unreported, CACV
115/2013 (26.6.2014), the Court of Appeal set out the general
principles on whether to hold an oral hearing i.e. the standards of
fairness required, the nature of the decision-making process in
question, the procedural history of the matter including whether
there has been an oral hearing before, the interest at stake and the
importance of the decision (in terms of its outcome and
consequence), the issues involved, and how the presence or
absence of an oral hearing would affect the quality of the
opportunity to make worthwhile or effective representations.

5.2.2 The heart of a fair procedure and hearing is that there

should be a reasonable opportunity for a person to know about and
respond to adverse materials received by and relied on by the
decision-maker. This generally requires disclosure of damaging or
adverse materials to which the decision-maker has access. As
explained by the Court of Appeal in ATV v Communications
Authority (No 2) [2013] 3 HKLRD 618, CACV 258/2012
(15.5.2013), the details required of the disclosure must be such so
as to enable the person to make “meaningful and focused
representations”. The extent of what fairness demands is
dependent on the context of each case. This would depend, inter
alia, on:

(a) The statute that creates the discretion;

(b) The prima facie relevance, credibility and significance of the

evidence or materials vis-à-vis the decision which is to be
made;

58
Chapter 5 Procedural Impropriety

(c) The nature of the relevant decision and its objective

significance to the affected person; and

(d) Whether there are countervailing factors against disclosure,

such as: confidentiality for the protection of the witness from
genuine fear of, say reprisal or harm, or national security.

5.2.3 If it is shown that, as a matter of fairness and natural

justice, the documents or materials ought to have been disclosed
by the decision-maker to the applicant so as to afford him an
opportunity to respond to them, the court would proceed to the next
stage to consider whether to exercise its discretion to quash the
decision. One of the factors that the court would consider is
whether there is any prejudice caused by the procedural unfairness.

5.2.4 The technical rules of evidence applicable to civil or

criminal litigation form no part of the rules of natural justice.

5.2.5 There is no general right to legal representation in

administrative proceedings, though the authority has the discretion
to permit legal representation if fairness requires it. How the
discretion to allow legal representation is to be exercised will vary
according to the circumstances of each case.

Case Example
In Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR
237, FACV 9/2008 (26.3.2009), the appellant, an ex-police officer
who was required to be compulsorily retired after convicted of a
disciplinary charge, brought a constitutional challenge against the
validity of a statutory bar to legal representation in disciplinary
proceedings. The CFA held that by excluding the possibility of the
tribunal exercising the discretion of allowing legal representation,
the appellant was deprived of a fair hearing. The relevant

59
Chapter 5 Procedural Impropriety

regulations were declared inconsistent with Article 10 of the

HKBOR which provides, inter alia, that: “In the determination
of … his rights and obligations in a suit at law, everyone shall be
entitled to a fair and public hearing …” The CFA held that whether
legal representation should be permitted would depend on whether
fairness so requires in all the circumstances. This would primarily
be for the tribunal to assess, and no court would disturb such
assessment except for plainly compelling reasons.

5.2.6 Where there is an oral hearing, the authority must allow

witnesses to be questioned and allow comments on the whole case.
Where there are factual disputes, the parties have a right to cross-
examine witnesses, but there is no such right at informal inquiries.

Case Example
In Re Ngai Kin Wah [1987] 1 HKC 236, HCMP 2911/1985
(27.3.1986), a customs officer challenged by judicial review the
punishments imposed on him by an adjudicator upon a disciplinary
hearing. During the disciplinary hearing, the adjudicator prevented
the applicant from cross-examining a key factual witness on one of
his statements. The court held that the adjudicator’s failure to
allow cross-examination deprived the applicant of an opportunity
to elicit further useful evidence material to the charge and to
undermine the credibility of the key witness. This failure
amounted to procedural impropriety which was sufficiently serious
to give rise to a substantial denial of natural justice.

5.2.7 Undue delay in disciplinary proceedings resulting in

prejudice constitutes a breach of the fairness requirements. Thus,
an unexplained lengthy delay in initiating police disciplinary
proceedings could result in the quashing of the disciplinary

60
Chapter 5 Procedural Impropriety

proceedings. But the court in Leung Chun Yin v Secretary for

Justice, unreported, HCAL 66/2004 (17.6.2005) did not agree with
the Applicant’s allegation that there was undue delay in
commencing the disciplinary proceedings against him, having
regard to the large number of staff involved and the volume of
evidence required to be examined.

5.2.8 Delegated hearing: The decision-maker need not conduct

a hearing himself and may conduct a hearing through another body
or person(s) to receive evidence and submissions from interested
parties. In some cases, when issues of credibility of witnesses or
other reasons pertaining to the proper assessment of a matter which
requires the presence of the decision-maker are not engaged,
provided that the decision-maker is fully informed of the evidence
and submissions before making a decision, there is no breach of
natural justice. For example, in Jeffs v New Zealand Dairy
Production and Marketing Board [1967] 1 AC 551 (13.10.1966),
it was accepted that it is a matter of procedure for a decision-
making body (e.g. a board) to appoint a person to hear and receive
evidence and submissions from interested parties for the purpose
of informing such decision-making body of the evidence and
submissions, and if before its reaching of a decision it is fully
informed of and considered such evidence and submissions, it
cannot have been said not to have heard the interested parties and
to have acted contrary to the principles of natural justice; but an
accurate summary of the relevant evidence and submissions would
also suffice.

Case Example
In R v The Town Planning Board & Anor [1996] 2 HKLRD 267,
HCMP 2457/1995 (8.6.1996), the applicant complained that the
Secretary to the Board had earlier prepared and presented a paper
to the Board for consideration in his absence. The court, deriving

61
Chapter 5 Procedural Impropriety

assistance from Jeffs, held that the applicant’s case had received
full and fair consideration because all those of the Board who took
part in making the decision on a later date were fully apprised of
all the representations both oral and written which the Board had
up to that time received in connection with the applicant’s
objection.

5.2.9 Ex post facto hearing: While a prior hearing may be better

than a subsequent hearing, a subsequent hearing (e.g. on appeal) is
better than no hearing at all. In some cases the courts have held
that statutory provisions for an administrative appeal or even full
judicial review on the merits are sufficient to negative the existence
of any implied duty to have a hearing before the original decision
is made. This approach may be acceptable where the original
decision does not cause significant detriment to the person affected,
or where there is also a paramount need for prompt action (e.g.
matters affecting public health), or where it is otherwise
impracticable to afford antecedent hearings.

5.2.10 A person who does not request a public hearing or to be

allowed legal representation by reason that such request would be
categorically denied cannot be considered to have waived his right
to a public hearing or legal representation.

Case Example
In Lam Chi Pan v Commissioner of Police [2010] 1 HKC 120,
CACV 193/2008 (18.12.2009), the applicant was subjected to
police disciplinary proceedings and was represented by a senior
inspector in the proceedings. He was convicted of one charge and
was dismissed from the police force. The Court of Appeal held
that the right to legal representation was one aspect of the
requirement of a fair hearing. Prior to the CFA decision in Lam

62
Chapter 5 Procedural Impropriety

Siu Po, the Court of Appeal had consistently (though wrongly) held
that the statutory bar to legal representation in police disciplinary
proceedings was constitutional. It was unreal to say that the
applicant had not been deprived of a fair hearing when he could
not be expected to ask for legal representation. Nor was it right
that since the applicant had not sought to challenge the
constitutionality of the statutory bar to legal representation by
judicial review, he could not complain that the disciplinary
proceedings were unfair. It was clear that the applicant had not
waived his right to legal representation.

5.3 Rule against bias, the requirement of

impartiality and independence
5.3.1 The rule against bias stems from the common law
principle that “justice should not only be done but should
manifestly and undoubtedly be seen to be done” and that “no man
is to be a judge in his own cause”.

5.1.2 There are three types of bias:

(a) Actual bias;

(b) Presumed bias; and
(c) Apparent bias.

5.3.3 Actual bias: This covers the situation where the decision-
maker has been influenced by partiality or prejudice in reaching
his decision or where it has been demonstrated that the decision-
maker is actually prejudiced in favour of or against a party (i.e. pre-
determination). The decision-maker is automatically disqualified
from determining the case. A decision maker forming a
provisional and tentative view at various stages of evidence as long
as it is not a concluded view is not improper because preconceived

63
Chapter 5 Procedural Impropriety

opinions do not constitute bias – it does not follow that evidence

will be disregarded. Cases involving actual bias are rare, difficult
to prove and perhaps redundant given the other grounds of bad
faith, improper motive and apparent bias.

5.3.4 Presumed bias: Bias is presumed and the decision-maker

is automatically disqualified where he has a pecuniary or personal
interest in the subject matter (e.g. close connection based on
marriage, blood or friendship). For example, a law lord’s
shareholding in the appellant company which was worth several
thousand pounds (back in the 1850s) disqualified him from hearing
the appeal.

Case Example
In R v Bow Street Magistrate, ex p Pinochet (No. 2) [2000] 1 AC
119 (15.1.1999), the House of Lords held that presumed bias would
arise where the judge is closely associated with a party to the
proceedings (one of the law lords was an unpaid director and
chairperson of Amnesty International Charity Limited, a company
under the control of Amnesty International which had been given
leave to intervene in the proceedings before the House of Lords
against a former head of state). The judge was automatically
disqualified and the matter was reheard before a differently
constituted Appeal Committee.

5.3.5 Apparent bias: This is a ground that is more often invoked

than the ground for actual bias and presumed bias. Where there is
automatic disqualification due to actual or presumed bias, a
decision-maker may nevertheless have apparent bias in reaching
his decision. The test for apparent bias, the “real possibility” test,
is “whether the fair-minded and informed observer, having
considered the facts, would conclude that there was a real

64
Chapter 5 Procedural Impropriety

possibility that the tribunal was biased” (Porter v Magill [2002] 2

AC 357, adopted in Lawal v Northern Spirit Ltd [2004] 1 All ER
187). The House of Lords made clear in Lawal that the “fair-
minded and informed observer” would adopt a “balanced approach”
and was “neither complacent nor unduly sensitive or suspicious”.
The formulation for apparent bias is adopted by the CFA in
Deacons v White and Case (2003) 6 HKCFAR 322, FAMV 22 &
23/2003 (6.8.2003); in considering whether the deputy judge who
was a friend of a partner of the plaintiff law firm was biased, it was
said, “... the view of the fair-minded and informed observer as to
whether a reasonable apprehension of bias arises may differ from
the reviewing court’s own view, and that it is through the prism of
such an observer’s perception that the court should consider
whether the case is one of apparent bias.”

Case Example
In ZN v Secretary for Justice & Ors [2016] 1 HKLRD 174,
HCAL 15/2015 (13.11.2015), the Secretary for Justice made an
application for Zervos J (as he then was) to recuse himself from
hearing the application for judicial review involving an issue of
human trafficking on the ground of apparent bias. During Zervos
J’s previous office as the Director of Public Prosecutions, he was
involved in the formulation of new initiatives to address and
combat human trafficking. In dismissing this application, Zervos
J found that the fair-minded and informed observer would not
conclude that there was a real possibility that the judge would be
biased. The fair-minded observer would view his actions and
statements in the past as being general in nature in relation to his
previous office as DPP in addressing the problem of human
trafficking. The fair-minded observer would also take into account
that the issue to be decided upon in the present judicial review
application was primarily a question of law concerning a
determination of the duties and obligations of the HKSAR

65
Chapter 5 Procedural Impropriety

government under Article 4 of the Bills of Rights and whether there

has been any failure to fulfil such duties and obligations as
determined to apply in the context of the present case.

5.3.6 A decision-maker who is biased cannot successfully

argue that he tried not to let his bias influence his decision.

Case Example
In R v Ho Chiu Hung [1996] 4 HKC 593, HCMA 359/1996
(21.6.1996), the magistrate who had convicted the defendant of a
similar offence refused the defence counsel’s application that the
case be transferred to another magistrate. The appellant lodged an
appeal against the conviction. It was held that the magistrate only
considered whether he would be personally biased, but he had
failed to consider all the circumstances including whether the
circumstances dictated that no other magistrate could hear the case
and the admission of knowledge by the appellant in his previous
plea before him might have unconsciously influenced him in his
findings against the appellant.

5.3.7 The rule against bias may be excluded by ordinance (e.g.

section 52 of the Rating Ordinance (Cap. 116)), or the doctrine of
necessity or waiver by the person affected. However, even if the
common law rule against bias is excluded, Article 10 of the
HKBOR (see para 5.3.10 below) would still need to be complied
with unless it is excluded by law and the exclusion was justified on
objective grounds related to the effective functioning of the State
or some other public necessity which justified removal of the
Article’s protection. Further, the European Court of Human Rights
has held that it is unlikely that the requirements of independence
and impartiality can be waived, in view of their importance for
confidence in the judicial system generally and that waiver “in so

66
Chapter 5 Procedural Impropriety

far as it is permissible” must be established in an unequivocal

manner (see Oberschlick v Austria (1995) 19 EHRR 389
(23.5.1991)).

Case Example
In Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLR
363, CACV 194/1995 (11.7.1996), the appellant alleged that the
decision of the Board violated his right to a fair hearing by a
competent, independent and impartial tribunal guaranteed by
HKBOR 10. This was on the ground that the vice-chairman and
some members of the Board were public officers. The Court of
Appeal held that HKBOR 10 was not engaged at all as any final
“determination” of the appellant’s rights and obligations in terms
of Article 10 was made by the Governor-in-Council (now the Chief
Executive-in-Council). It was difficult to see how the Board’s
function could properly be discharged without the presence of at
least some of the officials or their representatives; and that the law
must allow for the departmental bias which public officers were
expected and required to have. The relevant question was whether,
when the members of the Board came to make up their minds, they
genuinely addressed themselves to the question with minds which
were open to persuasion.

5.3.8 There is a distinction between pre-disposition and pre-

determination. Administrative decision-makers will naturally
approach their task with a legitimate pre-disposition to decide in
accordance with their previously articulated views or policies.
Where there is simply a pre-disposition to decide one way rather
than the other in accordance with previous policies, there is no
question of apparent bias. But the decision-maker must keep an
open mind and not allow himself to slip from pre-disposition to
pre-determination.

67
Chapter 5 Procedural Impropriety

5.3.9 It is also self-evident that a ministerial or departmental

policy cannot be regarded as disqualifying bias. An
administrator’s decision cannot be impugned on the ground that he
has advocated a particular scheme or that he is known to support it
as a matter of policy. The whole object of putting the power into
his hands is that he may exercise it according to government policy.

Case Example
In PCCW-HKT Telephone Ltd v Telecommunications Authority
[2008] 2 HKLRD 282, CACV 60/2007 (18.9.2007), the applicant
contended that the Telecommunications Authority was acting
under a real likelihood of apparent pre-determination in a
consultation exercise on a proposed policy change. It was held that
no case was made out of apparent bias on the materials on which
the applicant relied. The Court of Appeal endorsed the
submissions of the Telecommunications Authority that the
Authority as regulator should candidly articulate his thinking and
provisional views; it was not only unobjectionable, it was good
administrative practice. If the Authority held strong views
regarding a proposal, the forcefulness of his views might well serve
to elicit responses from person holding different views who might
otherwise not be included to contribute to the debate.

5.3.10 It is fundamental in our law that a public tribunal which

has the power to discipline an individual, and to make findings
which will strip him of his livelihood, must be seen to be impartial.
Article 10 of the HKBOR provides, inter alia, that “in the
determination of 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…” An
arrangement which satisfies the requirements of the common law
will almost certainly conform with the fairness requirement of

68
Chapter 5 Procedural Impropriety

Article 10 of the HKBOR (Lam Siu Po v Commissioner of Police

(2009) 12 HKCFAR 237, FACV 9/2008 (26.3.2010), at para 137).

5.3.11 The courts have not insisted that the initial or primary
administrative decision-maker, whether an individual or a tribunal,
should comply with every aspect of Article 10. What the courts do
insist upon is that the applicant aggrieved by the decision of the
initial or primary decision-maker should be able to bring the
dispute subsequently before a court of “full jurisdiction”. By this,
it means full jurisdiction to deal with the case as the nature of the
decision requires. Availability of appeal or judicial review would
generally be sufficient for the purpose of complying with Article
10 and curing the defect at first instance.

Case Example
In Wong Tak Wai v Commissioner of Correctional Services,
unreported, HCAL 64/2008 (31.8.2009), the Court of First
Instance found that the hearing of prison disciplinary proceedings
with punishment by a Superintendent charged with the
administration of the penal institution and/or supervision of the
reporting officer in question lacked the independence or
impartiality for a fair hearing under HKBOR 10. The Court of
Appeal subsequently allowed the Commissioner’s appeal ([2010]
4 HKLRD 409, CACV 231/2009 (21.7.2010)) and held that given
the wide power of the Commissioner (in determining an appeal by
a prisoner against the decision of the Superintendent) to enquire
into the merits fully and to hold a rehearing where the justice of the
matters required, he was armed with full jurisdiction to deal with
the case as the challenged decision required. The court held that
the safeguards for a fair adjudication were met and that there was
compliance with the requirements for a fair hearing through the
appeal to the Commissioner.

69
Chapter 5 Procedural Impropriety

5.4 Protection of legitimate expectations

5.4.1 The legitimate expectation doctrine holds that where a
decision-maker leads a person affected by a decision legitimately
to expect either that a particular procedure will be followed in
reaching a decision or that a particular (and generally favourable)
decision will be made (and such a decision would be within his
powers), then, save where there is an overriding public interest,
that legitimate expectation must be protected. The expectations
may be based on some statement or undertaking by, or on behalf
of, the public authority which has the duty of making the decision,
if the authority has, through its officers, acted in a way that would
make it unfair or inconsistent with good administration for him to
be denied such an inquiry (see AG v Ng Yuen Shiu [1983] 2 AC
629, PCA 16/1982 (21.2.1983)).

5.4.2 There are two essential requirements for legitimate

expectation:

(a) The expectation must be induced by the decision-maker either

expressly (e.g. a promise or undertaking) or impliedly (e.g.
past practice); and

(b) The representation must be clear, unambiguous and devoid of

relevant qualification.

Case Example
In Lam Yuet Mei v Permanent Secretary for Education and
Manpower of the Education and Manpower Bureau [2004] 3
HKLRD 524, HCAL 36/2004 (9.8.2004), it was held that there
was no factual basis for any expectation to arise on the applicant's
part. The court stated that an expectation would not be regarded
as reasonable or legitimate if the applicant could have foreseen that

70
Chapter 5 Procedural Impropriety

the subject matter of the representation was likely to alter, or that

it would not have been respected by the relevant agency, or that the
applicant knew that the representor did not intend his statement to
create an expectation. Detrimental reliance usually had to be
established for a claim based on legitimate expectation to succeed.

5.4.3 Expectations are generally divided into two groups, i.e.

procedural expectations and substantive expectations.

5.4.4 Procedural expectations: These are expectations that a

particular procedure will be followed and they are protected simply
by requiring that the promised procedure be followed. In very
exceptional cases, a procedural legitimate expectation may arise
even if there is no prior promise or existing policy. A duty to
consult or give the person affected an opportunity to make
representations before effecting the change in policy will arise
where there was established a policy distinctly and substantially
affecting a specific person or group who in the circumstances “was
in reason entitled to rely on its continuance” and did so (see for
example U Storage Group Limited v Director of Fire Services &
Anor, unreported, HCAL 490/2019 (28.8.2020)).

Case Example
In AG v Ng Yuen Shiu [1983] 2 AC 629 (21.2.1983), the
Government announced that certain illegal immigrants who were
liable to deportation would be interviewed individually and treated
on their merits in each case. The Privy Council held that where a
public authority has promised to follow certain procedure, it is in
the interest of good administration that it should act fairly and
should implement its promise, so long as implementation does not
interfere with its statutory duty. The removal order was quashed

71
Chapter 5 Procedural Impropriety

as the appellant had only been allowed to answer questions without

being given an opportunity to state his own case.

5.4.5 Substantive legitimate expectation: this refers to a

reasonable expectation of a favourable decision on the basis of a
representation (or promise) or an established practice. Generally,
substantive expectations are procedurally protected: the decision-
maker will have to give the person affected an opportunity to make
representations before the expectation is denied. But exceptionally,
where the courts consider that the procedural protection may not
be adequate to remedy the unfairness occasioned by the decision-
maker’s breach of promise or established practice, it may give
substantive protection to legitimate expectation in an appropriate
case.

Case Example
In Ng Siu Tung & Ors v Director of Immigration (2002) 5
HKCFAR 1, FACV 1/2001 (10.1.2002), specific representations
by way of pro forma replies were made to a group of applicants for
legal aid that it was not necessary for them to join in the existing
legal proceedings or to commence fresh proceedings as the
Government would act in accordance with the court decisions of
the two test cases. The CFA held that they had legitimate
expectation to the same treatment as the parties to those two test
cases.

5.4.6 Overriding public interest: Once a legitimate expectation

has been established, the Administration may have good reasons to
resile from its clear representation or promise previously made (e.g.
policy changes). The onus is on the Administration to give good
reasons why it has failed to give effect to the legitimate expectation

72
Chapter 5 Procedural Impropriety

in any particular case. Overriding public interest would be

accepted by the court as a good reason provided that the
Administration can establish it. The court may demand cogent
evidence in support and has taken the view that “the government
or the relevant government agency must remain free to change its
policy … But the adoption of a new policy does not relieve a
decision-maker from his duty to take account of a legitimate
expectation.” (see Ng Siu Tung & Ors v Director of Immigration
(2002) 5 HKCFAR 1, FACV 1/2001 (10.1.2002)).

Case Example
In Re Thomas Lai [2014] 6 HKC 1, HCAL 150/2013 (28.2.2014),
the court held that even where an applicant has a legitimate
expectation, an application for judicial review may still fail if a
decision was, with regard to all circumstances, justifiable.
Therefore, even if the villager had a legitimate expectation that his
village would remain an enclave outside of country park
boundaries, ensuring his right to build a small house under the
Small House Policy, the decision to incorporate his village’s
enclave into the country park was justifiable and not an abuse of
power.

5.4.7 Revocation of legitimate expectation: A legitimate

expectation can be cancelled in the following ways:

(a) Express representation (the statement issued must be clear

and unambiguous and a fair hearing may have to be provided
in certain circumstances);

(b) Implied representation (through an event or series of events);

and

73
Chapter 5 Procedural Impropriety

(c) Legislation (clear statutory provisions override any

expectation however founded).

5.5 Exclusion of natural justice

5.5.1 The rules of natural justice may be excluded in the
following situations:

(a) National security;

(b) Emergencies (most situations are covered by statutes); and

(c) Pure master and servant relationship.

Case Example
In Chu Woan Chyi & Ors v Director of Immigration [2007] 3
HKC 168, HCAL 32/2003 (23.3.2007), four members of Falun
Gong were refused entry to Hong Kong because it was believed
that they presented a security risk, but the basis for such belief was
not disclosed. The court held amongst other things that the issue
of multiple entry permits to the four applicants did not vest them
(being aliens) with any sort of legitimate expectation that they
would be admitted into Hong Kong. The Director of Immigration
was not obliged to give reasons or to allow representations, and
was entitled to make such enquiries as he saw fit and was not under
an obligation to provide a hearing in coming to such an
administrative decision. (The subsequent appeal was dismissed.)

74
Chapter 5 Procedural Impropriety

5.6 Duty to give reasons

5.6.1 There is no general common law rule which requires
reasons to be given by an administrative tribunal or even a court of
law for its decision. But it will generally be prudent for a decision-
maker to give careful thought to whether reasons should be given.

5.6.2 Whether it is desirable or necessary to give reasons

depends on the circumstances of the case. For instance, the court
may infer that a decision is arbitrary and unreasonable if reasons
are not given. In certain circumstances, reasons for an
administration decision may be required where the decision
appears aberrant, or where the decision engages an interest such as
personal liberty that is so highly regarded by the law that fairness
requires that reasons be given as of right (see Lister Assets Ltd &
Ors v The Chief Executive in Council, unreported, CACV
172/2012 (25.4.2013)).

Case Example
In Oriental Daily Publisher Ltd v Commissioner for Television
and Entertainment Licensing Authority (1997-1998) 1
HKCFAR 279, FACC 1/1998 (25.11.1998), the Court of Final
Appeal observed that the duty to give reason may arise as a matter
of statutory construction or under common law having regard to
the following aspects: the character of the tribunal, the kind of
decision it has to make and the statutory framework in which it
operates, the requirements of fairness demand that the tribunal
should give reasons, there be no contrary intention in the statute.
The CFA agreed with the CA’s ruling that whilst there was no
express provision in the Control of Obscene and Indecent Articles
Ordinance (Cap. 390) requiring the Obscene Articles Tribunal to
give reasons for its decisions, it was not only desirable but
necessary to know the reasons for a particular decision under

75
Chapter 5 Procedural Impropriety

appeal. Accordingly, it was only right to imply a duty on the

Tribunal to give reasons when it made a decision for an interim
classification under section 15 and a determination under section
29 of the Ordinance.

5.6.3 How detailed the reasons should be would depend upon

the circumstances of the particular case. The reasons given should
show that the substantial issues were addressed and why the
decision was reached, but there may not be the need to address
every single issue (see for example Law Wan Tung v The Director
of Legal Aid [2021] HKCFI 2238, HCAL 180/2021 (4.8.2021)).
An outlined reason showing to what issues the decision-maker had
directed his mind and the evidence upon which he had based his
conclusion might be sufficient. The mere fact that the decision-
maker copied the reasons/decisions supplied by other party would
not be by itself objectionable as long as it could be seen that the
decision-maker had independently considered the matter.

Case Example
In Dr Ip Kay Lo v Medical Council of Hong Kong [2003] 3
HKLRD 851, CACV 295/2002 (28.7.2003), the court held that
detailed decision was required where a medical doctor was found
guilty of a serious professional misconduct of making fraudulent
representation to another doctor given the complexity of the case
and the serious consequences to his professional reputation and
livelihood.

5.6.4 The court may, in appropriate and exceptional cases,

admit ex post facto reasons but generally adopts a cautious
approach. The relevant considerations are: (a) whether the new
reasons are consistent with the original reasons; (b) whether it is

76
Chapter 5 Procedural Impropriety

clear that the new reasons are indeed the original reasons; (c)
whether there is a real risk that the later reasons have been
composed subsequently in order to support the decision, or are a
retrospective justification of the decision; (d) the delay before the
later reasons were put forward; and (e) the circumstances in which
the later reasons were put forward (reasons put forward after the
commencement of proceedings must be treated especially
carefully; reasons put forward during correspondence in which the
parties are seeking to elucidate the decision should be approached
more tolerantly), see R (Nash) v Chelsea College of Art and Design
[2001] EWHC Admin 538 (11.7.2001).

5.6.5 Some Ordinances contain express provisions providing

for the duty to give reasons on the part of the decision maker.
Examples are section 25 of the Administrative Appeals Board
Ordinance (Cap. 442), section 15 of the Municipal Services
Appeals Board Ordinance (Cap. 220), sections 3(7C) and 8(E) of
the Buildings Ordinance (Cap. 123), section 5A(5) of the Societies
Ordinance (Cap. 151) and section 22(7) of the Electronic
Transactions Ordinance (Cap. 553)).

77
Chapter 6 Constitutional Challenge

6. Constitutional Challenge

6.1 The Nature of Constitutional Challenge

6.1.1 A constitutional challenge is a challenge on the
constitutionality of any executive act (e.g. a government policy or
an administrative decision) in that such executive act is
inconsistent with any constitutional instrument.

6.1.2 The applicants in judicial review applications may rely on

the provisions of the Basic Law including those concerning human
rights, to challenge an executive act.

6.2 The Nature of the Basic Law

6.2.1 The Basic Law is the constitutional document of the
HKSAR. Given its constitutional status, any executive act
inconsistent with any provision of the Basic Law shall be declared
invalid.

6.2.2 The courts of Hong Kong have power to declare acts of

the Government as contravening the Basic Law, if they are found
to be inconsistent with the Basic Law.

Case Example
In Fok Chun Wa & Anor v The Hospital Authority & Anor (2012)
15 HKCFAR 409, FACV 10/2011 (2.4.2012), the applicants were
married women from Mainland who sought to challenge three
administrative decisions which had the combined effect that the
fees for obstetric services in public hospitals for non-Hong Kong

78
Chapter 6 Constitutional Challenge

residents would be substantially higher than those for Hong Kong

residents regardless of the husband's residence status. At para 66,
the CFA affirmed the power to review the constitutionality of a
policy, “... it would not usually be within the province of the courts
to adjudicate on the merits or demerits of government socio-
economic policies. That said, where appropriate ... the court will
intervene, this being a part of its responsibility to ensure that any
measure or policy is lawful and constitutional. This has been the
consistent position of the courts.”

6.3 The Interpretation of the Basic Law

6.3.1 Being an entrenched constitutional document, the Basic
Law states general principles and expresses purposes without
descending to particularities and details. Therefore, its provisions
must be interpreted with a purposive approach, namely the gaps
and ambiguities must be resolved to give effect to the principles
and purposes ascertained from the language, the context and
relevant extrinsic materials. The court also gives due regard to the
historical context of the Basic Law, but is not unduly constricted
by it; the Basic Law is always treated as a living norm, rooted in
the past but intended to be responsive to contemporaneous needs
and circumstances, and is given an interpretation that truly reflects
firmly held modern views in the current social and legal landscape,
see cases below.

6.3.2 It is a developed principle that the fundamental rights and

freedoms guaranteed in the Basic Law must be interpreted
generously. Moreover, restrictions to those rights and freedoms
must be narrowly interpreted.

79
Chapter 6 Constitutional Challenge

Case Example
The Applicant in Director of Immigration v Chong Fung Yuen
[2001] 4 HKCFAR 211, FACV 26/2000 (20.7.2001) the case
concerns with the question of right of abode in Hong Kong under
BL 24(2)(1). The CFA decided that a purposive approach must
be adopted for the interpretation of the Basic Law provisions, and
a literal, technical, narrow or rigid approach must be avoided. To
assist in interpretation, the court should consider other provisions
and the Preamble of the Basic Law as internal aids, and also
extrinsic materials before the enactment of the Basic Law such as
the Joint Declaration. The Court of Final Appeal also confirmed
the principle established in Ng Ka Ling that a generous
interpretation should be given to the constitutional guarantees of
freedoms in the Basic Law. Having considered BL 24(2)(1) in its
context and purpose, the Court of Final Appeal held that its clear
meaning was that Chinese citizens born in Hong Kong before or
after 1.7.1997 had the right of abode in Hong Kong irrespective of
their parents’ immigration status in Hong Kong at the time of birth.

In Kwok Cheuk Kin v Secretary for Justice [2021] 3 HKLRD 140,

[2021] HKCA 871, CACV8, 10, 87 & 88/2019 (11.6.2021), the
Court of Appeal addressed the question whether the co-location
arrangement as embodied in the Guangzhou-Shenzhen-Hong
Kong Express Rail Link (Co-location) Ordinance (Cap. 632) was
prohibited or excluded by the Basic Law. On the need to treat the
Basic Law as a living instrument for dealing with changing needs
and circumstances, the court observed, “[t]he Basic Law is
accordingly drafted with an eye to the future. Its function is to
provide a continuing constitutional framework for the Hong Kong
system as prescribed to operate as long as Hong Kong remains a
Special Administrative Region. Maintaining the Hong Kong
system under the ‘one country, two systems’ principle, however,

80
Chapter 6 Constitutional Challenge

does not mean stagnation. On the contrary, the Hong Kong system
is expected to and indeed should continue to develop within the
confines of the Basic Law to suit the contemporaneous needs and
circumstances of our society, some of which may even be beyond
the drafters’ contemplation. Keeping in line with these objectives,
the Basic Law adopts a language in ample and general terms to
express statements of policies, principles and values without
condescending to particularity or definition of terms. This enables
the Basic Law to grow and develop at the same time as our society
progresses so as to meet current social and political realities,
including those which are not envisaged by its drafters. These
considerations require the court to approach the Basic Law as a
living instrument so that it will not be deprived of its vitality and
adaptability to serve succeeding generations in the HKSAR.” The
court however remarked that it does not enable the courts to give
free rein to whatever they consider should have been the views of
the drafters; the fundamental principles and values in the Basic
Law remain contained and expressed in its language.

6.4 The Effect of Interpretation of the Basic

Law by SCNPC
6.4.1 Under the constitutional framework of the Hong Kong
Special Administrative Region, the Basic Law is a national law of
the PRC, having been enacted by the National People’s Congress
pursuant to Article 31 of the Constitution of the PRC.

6.4.2 The Hong Kong courts’ jurisdiction to interpret the Basic

Law under BL 158(2) and to declare executive acts
unconstitutional by their inconsistency with the Basic Law
provision in issue, is subject to:

81
Chapter 6 Constitutional Challenge

(a) the free-standing power of interpretation of the Basic Law

vested in the SCNPC under BL 158(1); and

(b) the SCNPC’s power of interpretation of the Basic Law by

reference from the Hong Kong courts under BL 158(3). Such
reference under BL 158(3) shall only be made by the Hong
Kong courts before making a final and unappealable
judgment, and if such a judgment will be affected by the
interpretation of a Basic Law provision which concerns either
(i) affairs which are the responsibility of the Central People’s
Government, or (ii) the relationship between the Central
Authorities and the Hong Kong Special Administrative
Region.

6.4.3 The power of the SCNPC to interpret the Basic Law is

derived from Article 67(4) of the Constitution of the PRC and is
provided for expressly in the Basic Law in BL 158(1) and is in
general and unqualified terms. An interpretation of the Basic Law
issued by the SCNPC is binding on the courts of the Hong Kong
Special Administrative Region. It declares what the law is and has
always been since the coming into effect of the Basic Law on 1
July 1997. The Hong Kong courts shall follow the SCNPC’s
interpretation, but the SCNPC’s interpretation will not affect
judgments previously rendered.

Case Example
In Lau Kong Yung & Ors v Director of Immigration (1999) 2
HKCFAR 300, FACV 10/1999 (3.12.1999), the CFA recognised
that the SCNPC’s power to interpret the Basic Law under BL
158(1), as a national law of the PRC, was general and unrestricted.
The Hong Kong courts’ power to interpret the Basic Law under BL
158(2) actually stems from such general power of interpretation of
the SCNPC under BL 158(1). Further, the Hong Kong courts’

82
Chapter 6 Constitutional Challenge

power to interpret the Basic Law in adjudicating cases is also

subject to the SCNPC’s power of interpretation under both BL
158(1) and (3).

6.5 Provisions of the ICCPR as applied to

Hong Kong
6.5.1 In accordance with BL 39(2), restrictions of the rights and
freedoms enjoyed by Hong Kong residents must be prescribed by
law and shall not contravene the provisions of BL 39(1), which
provides that the provisions of the ICCPR “as applied to Hong
Kong” shall remain in force and shall be implemented through the
laws of the HKSAR.

Case Example
In Chee Fei Ming & Anor v Director of Food and Environmental
Hygiene & Ors [2019] HKLRD 373, [2019] HKCA 1425, CACV
489 & 490/2018 (16.12.2019), it was the Applicant’s challenge
that section 104A of the Public Health and Municipal Services
Ordinance (Cap. 132) which controls the display of bills or posters
on Government land does not satisfy the “prescribed by law”
requirement. The Court of Appeal repeated that the law must be
adequately accessible and with sufficient precision. Notably, it
was held that the statutory scheme which confers a discretion on
the Director does not by itself infringe the “prescribed by law”
requirement provided that the law indicates with sufficient clarity
the scope of any such discretion, the manner of its exercise and
provides adequate and effective safeguards against abuse; when
examining the law, the court should also adopt a holistic approach
and have regards not only to the statutory provision in question but
also the common law and published policy and guidelines.

83
Chapter 6 Constitutional Challenge

6.5.2 The provisions of the ICCPR “as applied to Hong Kong”

have been incorporated into the law of Hong Kong by the
HKBORO, and the Bill of Rights in Part II is subject to the
exceptions in Part III of the HKBORO:

(i) Section 11 of the HKBORO provides for an exception,

namely that the HKBORO does not affect any immigration
legislation governing entry into, stay in and departure from Hong
Kong, or the application of such legislation, as regards persons not
having the right to enter and remain in Hong Kong (see Ubamaka
v Secretary for Security (2012) 15 HKCFAR 743, FACV 15/2011
(21.12.2012)).

(ii) Another exception can be found in section 9 of the

HKBORO, namely “members of and persons serving with the
armed forces of the government responsible for the foreign affairs
of Hong Kong and persons lawfully detained in penal
establishments of whatever character are subject to such
restrictions as may from time to time be authorised by law for the
preservation of service and custodial discipline”.

6.6 The Proportionality Test applied in

Constitutional Challenges
6.6.1 When a constitutional challenge involves a restriction of
constitutionally guaranteed rights or freedoms, the court first has
to identify whether the right or freedom in issue is absolute in
nature such that no restrictions on the right are permissible.
Absolute rights or freedoms, such as the right not to be subjected
to torture or cruel, inhuman or degrading treatment or punishment
under HKBOR 3, cannot be restricted under any circumstances.

6.6.2 Where other rights or freedoms are concerned, they are

not absolute and may be subject to lawful restrictions. The court

84
Chapter 6 Constitutional Challenge

adopts the proportionality test as an analytical tool to examine

whether the restrictions of such rights are proportionate to the
legitimate aim(s) sought to be achieved thereby. Most of the rights
and freedoms are protected under Chapter III of the Basic Law 3
and the HKBOR.

6.6.3 Hong Kong courts adopt a four-step analysis when

applying the proportionality test, which is typically formulated as
follows:

(a) The restriction must pursue a legitimate aim;

(b) The restriction must be rationally connected to that legitimate

aim;

(c) The restriction or limitation must, depending on the rights

engaged, (i) be no more than is necessary to accomplish that
legitimate aim; or (ii) not be manifestly without reasonable
foundation (see para 6.7 below); and

(d) A reasonable balance has to be struck between the societal

benefits of the encroachment and the inroads made into the
constitutionally guaranteed rights of the individual, asking in
particular whether pursuit of the societal interest resulted in
an unacceptably harsh burden on the individual.

6.6.4 Below are a few examples of how the proportionality test

has been applied by the Hong Kong courts in constitutional

3
Examples of constitutionally guaranteed rights and freedoms outside Chapter
III are BL 6: Right of private ownership of property; BL 87: Rights previously
enjoyed by parties to legal proceedings; BL 105: Right to compensation for
deprivation of property; BL 136: Freedom to run educational undertakings; BL
137: Academic freedom; and BL 141: Freedom of religious belief.

85
Chapter 6 Constitutional Challenge

challenges involving constitutionally guaranteed rights and

freedoms:

Case Example
In Hysan Development Co Ltd & Ors v Town Planning Board
[2016] 19 HKCFAR 372, FACV 21 & 22/2015 (26.9.2016), the
Appellants challenged a series of planning restrictions by the Town
Planning Board, such as building height restrictions and non-
building areas. The CFA decided that the restrictions engaged
Articles 6 and 105 of the Basic Law, which expressly required the
HKSAR to protect private property rights. Having considered a
substantial body of overseas and local jurisprudence, the CFA
explicitly added a fourth step to the proportionality analysis, which
involved asking whether there was a reasonable balance struck
between societal interest and the encroachment on constitutional
rights of an individual (see para 6.6.3 above).

In Kong Yunming v Director of Social Welfare (2013) 16

HKCFAR 956, FACV 2/2013 (17.12.2013), the Appellant
challenged that the seven-year residence requirement under the
Comprehensive Social Security Assistance Scheme was
inconsistent with “the right to social welfare in accordance with
law” guaranteed by BL 36 and BL 145. Applying the
proportionality test, the CFA found that the seven-year residence
requirement conflicted with the Government’s one-way permit
family reunion policy and population policy aimed at rejuvenating
the ageing population. Furthermore, as the introduction of the
requirement achieved only an insignificant level of savings, it was
not rationally connected to the declared aim.

In Kwok Wing Hang & 23 Ors v Chief Executive in Council &

Anor (2020) 23 HKCFAR 518, [2020] HKCFA 42, FACV 6-
9/2020 (21.12.2020), the applicants sought to challenge whether

86
Chapter 6 Constitutional Challenge

the restrictions imposed by sections 3(1)(b)-(d) of the Prohibition

on Face Covering Regulation (Cap. 241K) prohibiting face
covering at unauthorised assemblies as well as lawful public
meetings and processions were proportionate. While
acknowledging that such restrictions would affect the enjoyment
of the freedom of assembly, procession and demonstration under
BL 27 and HKBOR 17, the freedom of speech and expression
under BL 27 and HKBOR 16 and the right of privacy under
HKBOR 14, the Court of Final Appeal stated that none of these
rights was absolute but might be subject to lawful restrictions. The
court was satisfied that there were legitimate aims pursued and a
rational connection between such restrictions and their legitimate
aims, and reminded that the cardinal importance of the freedom of
speech and peaceful assembly hinged on their peaceful exercise.
Also adopting the “no more than reasonably necessary” standard
for the third step, the CFA held that the use of facial coverings did
not lie at the heart of the right of peaceful assembly, and upheld
the proportionality of sections 3(1)(b)-(d).

6.7 Margin of Discretion

6.7.1 Typically, the courts apply a standard of reasonable
necessity (i.e. no more than necessary for achieving the legitimate
aim) when considering whether the measure which restricts
fundamental rights satisfies the proportionality test; this involves a
stricter judicial scrutiny of executive decisions than that applies
under the Wednesbury doctrine. In other cases involving
interferences with rights, the courts recognise that a wider margin
of discretion should be accorded to the legislature or executive
where difficult choices have to be made between the rights of the
individual and the needs of society. The degree and extent of the
margin of discretion that the court would accord to the relevant

87
Chapter 6 Constitutional Challenge

authority is a spectrum and would depend on, for example, the

subject matter under scrutiny. The scope of the margin of
discretion in different contexts has been closely examined by the
court in recent years.

Case Example
In Hysan Development Co Ltd & Ors v Town Planning Board
(2016) 19 HKCFAR 372, FACV 21 & 22/2015 (26.9.2016),
certain planning restrictions laid down by the Town Planning
Board were challenged on the basis that they were in violation of
the protection of private property rights conferred by the Basic
Law. It was held by the CFA that the scope of the margin of
discretion may vary having regard to a number of factors, including:
“(i) the significance of and degree of interference with the right in
question; and (ii) the identity of the decision-maker as well as the
nature and features of the encroaching measure relevant to setting
the margin of discretion.”

Ribeiro PJ further held that: “… a decision-maker’s views resulting

in the promulgation of the impugned measure may be given much
weight and thus afforded a wide margin of discretion reflected by
use of a ‘manifest’ standard where the decision-maker is likely to
be better placed than the court to assess what is needed in the public
interest. The court may for instance, be satisfied that he had special
access to information; special expertise in its assessment; or an
overview enabling him to assess competing and possibly prior
claims for scarce resources. The court might also refrain from
intervening because the measure reflects a predictive or
judgmental decision which it was the institutional role of the
decision-maker to take and as to which no single ‘right answer’
exists.”

88
Chapter 6 Constitutional Challenge

6.7.2 In dealing with matters involving socio-economic policy,

the court will be less inclined to interfere and more ready to accord
a wider margin of discretion to the authority concerned.

6.7.3 The Court of Final Appeal has considered the concept of

margin of discretion in the context of the Government’s socio-
economic policies in a number of cases. The authorities show that
where the impugned measures or decisions involve the
implementation of the Government’s socio-economic policies and
limited public funds, the court will not usually put itself in the place
of the executive or legislature to decide what is the best option
unless the measures or decisions are “manifestly without
reasonable justification.”

Case Example
In Fok Chun Wa v Hospital Authority [2012] 15 HKCFAR 409,
FACV 10/2011 (2.4.2012), the main complaint was that the second
Applicant (and other women who were similarly from the
Mainland and had substantial connections with Hong Kong) had
been unlawfully discriminated against in that the level of fees
payable by them for obstetric services in public hospitals in Hong
Kong were substantially higher than those payable by Hong Kong
resident women. The Chief Justice commented that “(t)hese
Decisions were made as part of the Government’s socio-economic
responsibilities and represent the implementation of policies in
these areas. For my part, it is no part of the court’s role to second-
guess the wisdom of these policies and measures in the
circumstances I have described above. Nor is it … the court’s role
in such matters of socio-economic policy to examine whether
better alternative solutions could have been devised. It is sufficient
to say in the present case that the line drawn by the respondents at
residence status is entirely within the spectrum of

89
Chapter 6 Constitutional Challenge

reasonableness. In my view, all three aspects of the justification

test are satisfied.”

In Kong Yunming v Director of Social Welfare (2013) 16

HKCFAR 956, FACV 2/2013 (17.12.2013), the Applicant
challenged the Government’s policy requiring all recipients of
Comprehensive Social Security Assistance to have been a Hong
Kong resident for at least seven years. The CFA said, “As this
Court has recognised, some rights are non-derogable and absolute,
in which case, no infringement is permitted and no question of
proportionality arises (Ubamaka Edward Wilson v Secretary for
Security (2012) 15 HKCFAR 743, FACV 15/2011 (21.12.2012)),
involving, for example, the prohibition of torture and of cruel,
inhuman or degrading treatment or punishment). But in other cases,
it is well-established that the law may validly create restrictions on
constitutionally protected rights provided that each such restriction
can be justified on a proportionality analysis.”

“Where the disputed measure involves implementation of the

Government’s socio-economic policy choices regarding the
allocation of limited public funds without impinging upon
fundamental rights or involving possible discrimination on
inherently suspect grounds, the court has held that it has a duty to
intervene only where the impugned measure is ‘manifestly without
reasonable justification’.”

6.7.4 The degree of margin of discretion has also been

considered in the context of election matters. The courts have
recognised that in areas which involve political and policy
considerations (such as election matters), the court in applying the
proportionality test in the scrutiny of legislative restriction should
accord a due margin of discretion to the legislature and the
Government. In other words, the court should only interfere if it

90
Chapter 6 Constitutional Challenge

finds that, upon scrutiny, the restriction is “manifestly without

justifiable foundation”.

Case Example
Leung Chun Ying v Ho Chun Yan Albert & Anor (2013) 16
HKCFAR 735, FACV 24, 25 & 27/2012 (11.7.2013) were
appeals to the CFA concerning elections for the Chief Executive
under the Chief Executive Election Ordinance (Cap. 569) (“the
CEEO”). The challenges included the constitutionality of the
absolute seven day time limit for lodging election petitions
contained in section 34(1) of the CEEO which was said to
contravene the right of access to the courts under BL 35. The Chief
Justice considered the margin of appreciation which could be
accorded by the court to the legislature and said “[i]n Fok Chun
Wa v Hospital Authority, this Court emphasised the point that the
concept of margin of appreciation reflected the different
constitutional roles of the judiciary on the one hand, and the
executive and legislature on the other. In the context of election
law, this difference in roles must be borne in mind… Elections,
however, also involve political and policy considerations and it is
in these areas where the legislature is involved. The determination
that seven days is the appropriate limit for the lodging of election
petitions is one that does involve considerations other than legal
ones… the right of access to the courts is not an unlimited one,
particularly in the present context.”

91
Chapter 7 The Process of Judicial Review

7. The Process of Judicial Review 4

7.1 Application for leave

7.1.1 An application for judicial review can only be taken out
with the leave of a judge of the High Court (namely, the Court of
First Instance or, on appeal, the Court of Appeal). Subject to any
statute which limits the time for bringing a leave application in any
special circumstances 5 , or unless time is extended by the court
upon good reasons being shown, an application for leave must be
made promptly and, in any event, within 3 months from when the
grounds of the application first arose.

7.1.2 An application for leave (in Form 86) is made on an ex

parte basis (without the proposed respondent being served with the
application) and will be placed before the judge nominated by the
Chief Justice to be in charge of the Constitutional and
Administrative Law List or such other judge as may be assigned
for determination.

7.1.3 The court imposes a heavy burden on an applicant to

make full and frank disclosure of all material facts to the court
where an ex parte application for leave is made to the court. Failure
to comply with the duty may lead to refusal of leave for that reason
alone.

4
Cf. Annex I – Flow Chart on Procedure for Judicial Review.
5
Cf. Section 39(1) of the Chief Executive Election Ordinance (Cap. 569), which
provides for a 30-day time limit.

92
Chapter 7 The Process of Judicial Review

Case Example
See Kan Hung Cheung v The Director of Immigration,
unreported, HCAL 74/2007 (13.2.2008), the court held that the
right test for the duty to make full and frank disclosure in all ex
parte applications was that the court must be fully informed of all
facts that were relevant to the weighing question which the court
had to make in deciding whether or not to make the order.
Material facts included not only facts known to the applicant but
also any additional facts which should be known if proper
enquiries were made. An applicant had a duty to inform the court
as soon as he became aware that the court had been mis-informed
or given incomplete information at the time of the ex parte
application. There was also a duty to disclose any material change
of circumstances while the proceedings remained on an ex parte
basis.

7.2 Grant of Leave

7.2.1 The court shall not grant leave to apply for judicial review
if the applicant does not have a sufficient interest in the matter to
which the application relates (see Chapter 2.6).

7.2.2 Sufficient interest aside, an applicant must show that he

has a “reasonably arguable” case which has a realistic prospect of
success in respect of the relief sought in the application. The test
is the same whether the issue is one of law or fact. See Peter Po
Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676,
FACV 10/2007 (30.11.2007).

7.2.3 The court may refuse to grant leave if there is delay in

making the application (para 7.1.1 above). The court may also

93
Chapter 7 The Process of Judicial Review

refuse leave if the applicant has not exhausted all appeal

procedures or alternative remedies before resorting to judicial
review (Chapter 2.3).

7.2.4 As provided under Order 53, rule 3(2), all applications for
leave for judicial review must be made ex parte, i.e. without
involving any proposed respondent or proposed interested party.
This is an important screening process by the court such that only
meritorious and appropriate cases would be allowed to continue.
Exceptionally, the court may also direct an oral hearing to hear
from the applicant only or, if appropriate, the proposed respondent
as well on the court’s own motion or upon the applicant’s or the
proposed respondent’s request before deciding whether to grant or
refuse leave. The court is not obliged to direct an oral hearing
notwithstanding the applicant’s request under Order 53, rule 3(3),
in particular in a case where the leave application is clearly
unmeritorious or misconceived. See Re Bermudez Edna
Labadchan [2021] HKCA 1046, CACV 351/2020 (22.7.2021).

7.2.5 If leave is granted to the applicant by way of an order

made ex parte, a person aggrieved (whether a respondent or
interested party) may apply to set aside the order. The usual
grounds for setting aside leave are material non-disclosure, abuse
of process, delay, or lack of reasonable arguability, as the case may
be.

7.3 Interim Relief

7.3.1 An applicant may find it necessary to seek an order for
interim relief pending decision on leave to apply for judicial review,
or if leave is granted for such interim relief until substantive
determination in order to preserve the status quo. Such interim
relief often takes the form of an order of stay (i.e. interim

94
Chapter 7 The Process of Judicial Review

injunction) of prospective execution or continued execution of the

decision or act being impugned.

7.3.2 The court is slow to grant such interim relief before leave
to judicial review is granted and before the court has heard both
parties. The court may grant interim relief before leave is granted
in cases of extreme urgency or where there would be irreversible
harm otherwise.

7.3.3 The test on whether to grant an interim injunction is

where the balance of convenience lies i.e. the inconvenience
caused to the applicant if the injunction is not granted and the
inconvenience caused to the respondent if the injunction is granted,
and see which is greater. The courts have set out in the judgments
the relevant legal principles in judicial review cases:-

(i) Where an interim injunction is sought to restrain a

government from enforcing what is prima facie the law of the
land, the applicant will normally need to establish a “strong
prima facie case” that the law is invalid.

(ii) The court must take into account the public interest in the
balancing exercise when considering the balance of
convenience. The degree of importance attached to public
interest would depend on the nature of decision under
challenge.

(iii) Whether there are financial consequences and if so, whether

compensation by damages is an alternative remedy. Although
financial consequences are not to be ignored, they should not
be regarded as the sole measure in assessing the balance of
convenience.

95
Chapter 7 The Process of Judicial Review

(iv) Ultimately, the court should take whichever course appears to

carry the lower risk of injustice if it should turn out to have
been “wrong”.

(v) Save in exceptional circumstances, interim relief may only be

granted if leave to apply for judicial review has been obtained.

(vi) Even where leave to apply for judicial review has been
obtained, the existence of an early hearing date for the
substantive application for judicial review is a good reason for
the court to refuse to grant interim relief.

See for instance 梁頌恆 v 立法會主席; 郭卓堅 v 香港特首林鄭

月娥 [2018] 5 HKC 138, [2018] HKCFI 1869, HCAL 1160 &
1165/2018 (14.8.2018), Society for Protection of the Harbour Ltd
v Chief Executive in Council & Ors [2003] 3 HKLRD 960, HCAL
102/2003 (6.10.2003), and Kwok Wing Hang & Ors v Chief
Executive in Council & Ors [2019] 5 HKLRD 173, [2019] HKCFI
2476, HCAL 2945/2019 (8.10.2019).

7.3.4 In addition or alternative to granting an interim injunction,

the court may order an expedited substantive hearing with
directions for abridgement of time for completing procedural steps.
In which case, the parties (more often the respondent) will have
less time to prepare for the evidence and the legal submissions to
be lodged. See also Kwok Wing Hang & Ors v Chief Executive in
Council & Ors [2019] 5 HKLRD 173, [2019] HKCFI 2476, HCAL
2945/2019 (8.10.2019) where the entire judicial review
applications and appeals were resolved by the Court of Final
Appeal within slightly over one year following its commencement.

96
Chapter 7 The Process of Judicial Review

7.4 Filing Substantive Application

7.4.1 Within 14 days after the grant of leave (notified by a
CALL-1 Form), the applicant has to issue the formal application
for judicial review (in Form 86A).

7.4.2 The applicant shall serve the Form 86A together with
copy of the application for leave for judicial review (i.e. Form 86)
and the supporting affidavit or affirmation (i.e. evidence) on all
persons directly affected including the respondent.

7.4.3 The proper respondent to an application for judicial

review, when the court’s supervisory jurisdiction over criminal
proceedings in an inferior court is invoked, is the other party to the
proceedings in the inferior court, and not the inferior court itself. 6
These judicial review applications usually challenge the decisions
made by the Judge in the course of a criminal proceeding e.g.
decision to discharge himself from continuing to hear the criminal
trial or decision not to recuse himself from hearing the case. See
Nattrass v AG [1996] 1 HKC 480, HCMP 2337/1995 (19.12.1995).

7.4.4 In some judicial review applications, there will be an

interested party in addition to the respondent. An interested party
is one who may be affected by the outcome of judicial review. If
an interested party decides to take part in the judicial review, the
court may, as appropriate, give such directions on the service of
papers, filing of evidence and the future conduct of the proceedings
in addition to or in variation of what the rules of court provide. See
Cathay Pacific Airways Flight Attendants Union v Director-
General of Civil Aviation, unreported, HCAL 19/2005 (6.12.2005)
where Cathay Pacific Airways Ltd was permitted to join as an
interested party.

6
Practice Direction SL3 (para 4).

97
Chapter 7 The Process of Judicial Review

7.5 Respondent and the Duty of Candour

7.5.1 Judicial review proceedings are predominantly conducted
on the basis of affidavit or affirmation evidence which the parties
choose to adduce before the court.

7.5.2 Any respondent who intends to use any affidavit or

affirmation at the substantive hearing is required to file it in the
Registry as soon as practicable and in any event, unless the court
otherwise directs, within 56 days after service on him by the
applicant of the Form 86A together with other relevant papers. An
extension of time will only be granted by the court in exceptional
circumstances. 7

7.5.3 A respondent has to discharge fully his duty of candour

to the court and the applicant in the proceedings once leave to apply
for judicial review has been granted.

7.5.4 Thus, in the respondent affidavit or affirmation evidence,

the respondent is required to make a full and frank disclosure of all
relevant facts and documents which may relate to the actual
reasons for the decision being impugned or to any other aspects
which are relevant in the judicial review proceeding.

7.5.5 The duty of candour is an aspect of good governance and

proper administration, in particular in judicial review applications
most of which involve public interest. See Chu Woan-Chyi & Ors
v Director of Immigration & Anor [2009] 6 HKC 77, CACV
119/2007 (4.9.2009). In any given situation, whether the duty of
candour is discharged would depend on the facts, the issues before
the court, and the basis of the challenge mounted. Put in another
way, the question is whether the disclosure sought is “necessary
for disposing fairly” of the issues before the court, or to “enable

7
Practice Direction SL3 (para 14).

98
Chapter 7 The Process of Judicial Review

the court to deal justly” with the challenge mounted in the judicial
review. Yet the applicant is not allowed to engage in fishing
expeditions in the hope of unearthing material to enable a
challenge to be mounted. See Hong Kong Telecommunications
(HKT) Limited v Secretary for Commerce and Economic
Development & Anor [2019] HKCA 44, CACV 532/2018 &
CAMP 155/2018 (9.1.2019) per Kwan JA (as she then was) (paras
46-57).

7.5.6 In judicial review proceedings, the focus is usually on the

legality of the decision that is impugned; factual issues requiring
the court’s consideration in any given case are often limited. The
respondent is also well expected by the court to discharge fully the
duty of candour. Mainly for these reasons, the court rules do not
provide for automatic discovery of documents in judicial review as
in a writ action. The necessity to call witnesses and deponents of
affidavits or affirmations to have them examined or
cross-examined is also much more limited and rarely will the court
entertain such interlocutory applications. However, where the
critical issue requires the court to be provided with adequate
material or there are issues of fact to be resolved, the court will be
inclined to make the necessary orders.

7.5.7 In performing any duty or engaging in any decision-

making process, the respondent should act on the assumption that
relevant communications, minutes of meetings and other records
will generally be disclosed when the underlying act or decision is
impugned in judicial review proceedings.

7.5.8 Immunity from disclosure may be claimed on grounds

including legal professional privilege (subject to waiver or
statutory abrogation) or public interest immunity (see 7.5.9 below)
or any other valid grounds.

99
Chapter 7 The Process of Judicial Review

7.5.9 It is the usual practice for the Chief Secretary for

Administration to sign a supporting certificate setting out the basis
for the claim for public interest immunity. The balancing exercise
is between the public interest of withholding disclosure (i.e.
disclosure would be injurious to public interest) against that
pertaining to full disclosure for the proper administration of justice
in legal proceedings. If the former outweighs the latter, the court
will order that disclosure need not be made. See Conway v Rimmer
[1968] 1 All ER 874 (HL) (28.2.1968).

7.6 Substantive Hearing

7.6.1 The date for hearing the substantive application is fixed
according to the state of the court’s diary with discretion of the
court to accommodate the availability of the parties’ appearing
counsel if requested by the parties and to the extent possible in the
light of the degree of urgency of the application.

7.6.2 At the substantive hearing, the applicant for judicial

review can only rely on the grounds and seek the relief set out in
the Form 86 for which the court has granted leave unless any
subsequent amendment is allowed by the court. See Lau Kong
Yung & Ors v The Director of Immigration (1999) 2 HKCFAR 300,
FACV 10 & 11/1999 (3.12.1999).

7.6.3 Notwithstanding leave to apply for judicial review having

been granted, it is incumbent on the applicant as well as his counsel
and solicitors to review the merits of the application once the
respondent’s evidence is received and to consider whether to
proceed with the substantive hearing in the light of the evidence. 8

8
Practice Direction SL3 (para 17).

100
Chapter 7 The Process of Judicial Review

7.6.4 If the parties are agreed on the terms to dispose of the

judicial review without the need of a substantive hearing but
require an order of the court to put those terms into effect, they
should file a draft consent order, together with a short statement
signed by the parties’ solicitors, setting out the matters relied upon
as justifying the making of the order, and citing the relevant
authorities and statutory provisions. The court, if satisfied that
such an order can be made, will list the judicial review for hearing
and announce the order in open court to which attendance of the
parties or their legal representatives is excused. Otherwise, the
proceedings will be listed for hearing in the normal way. 9

7.6.5 The applicant, respondent and an interested person or

intervener (if any) who is allowed or directed by the court to take
part in the judicial review are formal parties to the proceedings and
enjoy all the rights of a litigant including the right of appeal if
aggrieved by any order of the court.

7.6.6 Whether an inferior court, appeal board or tribunal

exercising judicial or quasi-judicial functions and properly named
as a respondent in the judicial review as regards its decision should
take any active role and be legally represented in the proceedings
depends on the relevant statutory regime and factual circumstances,
including the grounds on which the decision concerned is
impugned. The practice is that they would take a neutral role and
provide the court with relevant information so that a just result
follow. See Dato Tan Leong Min & Anor v The Insider Dealing
Tribunal [1999] 2 HKC 83, CACV 162/1998 (27.1.1999).

7.6.7 Where the judicial review concerns an issue or legal

principle of importance and either or both of the applicant and the
respondent will not be legally represented at the substantive

9
Practice Direction SL3 (para 23(1)).

101
Chapter 7 The Process of Judicial Review

hearing, or the judicial review concerns a novel and important legal

principle, the court may appoint an amicus curiae (a friend of the
court) to present disinterested legal arguments in a fair and
impartial manner to assist the court.

7.6.8 Apart from the formal parties to the proceedings and the
amicus (if any), the court has the discretion to grant leave to any
other proper person to file evidence or make representation, either
orally or in writing, at the substantive hearing which may be in
opposition to or in support of the application, as the case may be.

7.6.9 Unless otherwise directed by the court, the parties must

follow the practice direction in filing skeleton arguments with the
court before the commencement of the hearing (7 clear days for
those in support and 3 clear days for those in opposition). 10

7.7 Relief (other than Damages)

7.7.1 If an applicant succeeds in his application for judicial
review, the court has the discretionary power to grant a form of
final relief appropriate to the circumstances including an order of
mandamus (to perform a duty), prohibition (to prevent an act) or
certiorari (to bring up and quash a decision), an injunction, a
declaration (as to legal rights) or an award of damages, as the case
may be.

7.7.2 The court may withhold the grant to the successful

applicant of the relief sought if there was undue delay on the part
of the applicant in making the application for judicial review
and/or the court considers that granting the relief would be likely
to cause substantial hardship to, or substantially prejudice the
rights of, any person or would be detrimental to good

10
Practice Direction SL3 (para 21).

102
Chapter 7 The Process of Judicial Review

administration. In other words, the granting of relief remains a

matter of the court’s discretion. In Kwok Cheuk Kin v President of
Legislative Council [2021] HKCFA 38, FACV 2, 3 & 4/2021
(5.11.2021), the court stressed that as applications for judicial
review vary greatly in their nature and their potential consequences,
the rule on delay is not absolute. Hardship or prejudice to
individuals and disruption of good administration are more likely
in cases where the relief would operate retrospectively to undo
transactions on whose validity people will have relied. Where the
object of the proceedings is to obtain the decision of the court on
some general issue of legal or constitutional principle, these
consequences are less likely and the public importance of having
the issue resolved is greater. Delay is therefore likely to be a less
significant factor.

7.7.3 Absent any issue of delay, the court is slow to deny relief
for mere administrative inconvenience or a fear of a flood of
similar cases in future – the “floodgates” argument.

Case Example
See Re Lee Ka Ming (a minor) [1991] 1 HKLR 307, HCMP 1812
& 1828/1990 (24.8.1990), the court, in allowing the judicial review
applications and granting relief to the applicant boy, rejected the
Director of Immigration’s arguments that a decision in favour of
the boy would have the effect of opening “the floodgates”. While
this judgment was reversed on appeal by the Court of Appeal,
unreported, CACV 162 & 163/1990 (22.3.1991), the “floodgates”
argument did not arise during the appeal.

7.7.4 If the ground of procedural unfairness is established, the

court will consider as a relevant factor whether there is any

103
Chapter 7 The Process of Judicial Review

prejudice to the applicant arising from the breach when deciding

whether to exercise its discretion to quash the decision of the
decision-making body below or grant some other appropriate relief,
if any.

Case Example
See Leung Fuk Wah Oil v Commissioner of Police [2002] 3
HKLRD 653, CACV 2744/2001 (28.3.2002), the Court of Appeal
held that as judicial review is a discretionary remedy, the failure to
observe the principle of fairness should not be a ground for
quashing the decision when the applicant did not, as a matter of
substance, suffer any prejudice; and thus held that the discretion
was exercised against the granting of any relief.

7.7.5 If a decision is quashed on grounds of unlawfulness (due

to unfairness or other procedural impropriety or otherwise) and is
capable of being reconsidered by the decision-making body below,
the court will generally make an order remitting the matter to that
body for reconsideration in accordance with the law as pronounced
in the judgment with any specific direction, if appropriate. See
Building Authority v Appeal Tribunal (Buildings) & Anor [2014] 1
HKLRD 716, CACV 277/2012 (3.1.2014).

7.7.6 The court may make a declaration or grant an injunction

if it would be just and convenient having regard to the nature of the
matters, the nature of the persons and bodies against whom relief
may be granted, and all the circumstances of the case concerned.

7.7.7 A declaration serves to pronounce authoritatively the

meaning of any constitutional or statutory provision, the legality of
any policy or non-statutory arrangement, the lawfulness of the
exercise of any administrative or legislative power, or the legal

104
Chapter 7 The Process of Judicial Review

rights of parties to the judicial review, as the case may be, in the
public law context. The court may make such declarations as a
form of relief if warranted. See Securities and Futures
Commission v Tiger Asia Management LLC & Ors (2013) 16
HKCFAR 324, FACV 10-13/2012 (10.5.2013).

7.7.8 When the court grants a declaration of unconstitutionality

to the effect of striking down a practice, the court in Vallejos
Evangeline Banao v Commissioner of Registration & Anor [2011]
6 HKC 469, HCAL 124/2010 (28.10.2011) sets out the following
guidance:-

(i) The court recognises that the primary responsibility for

administration falls on the Government.

(ii) In case the Government decides to appeal, it has to decide

what policy to adopt in the interim pending outcome of the
appeal.

(iii) If the Government decides to put on hold the implementation

of the declaration pending appeal, provided that (1) the
Government makes such decision in good faith, and (2) a
party who is adversely affected retains the right to challenge
such decisions by way of judicial review, the rule of law has
not been compromised.

7.8 Damages
7.8.1 On an application for judicial review, the court may
award damages to the applicant if such a claim is included in the
application and the court is satisfied that, the claim could form a
concomitant or distinct cause of action in private law such as tort
or a right to compensation under statute. This reflects the current
law which does not recognise a general right to claim damages for

105
Chapter 7 The Process of Judicial Review

losses caused by an unconstitutional or unlawful administrative

action. See A & Ors v Director of Immigration [2008] 4 HKLRD
752, CACV 314-317/2007 (18.7.2008).

7.8.2 Where leave to apply for judicial review on public law

grounds was refused to an applicant and he did not pursue an
appeal or the appeal was dismissed, a subsequent private law action
by the applicant seeking to argue the same grounds in substance
albeit for different relief may amount to an abuse of the court
process and be liable to be struck out.

Case Example
See 何建民 v 香港警務處處長, Leung Fuk Wah Oil & Ors v
Secretary for Justice for and on behalf of the Commissioner of
Police [2014] 3 HKLRD 478, CACV 175, 200, 228 & 229/2012
(26.5.2014). The plaintiffs, being former police officers, sued the
Commissioner of Police for damages for wrongful termination of
their services following disciplinary proceedings held against them
in which they were allegedly wrongfully prohibited legal
representation. Their earlier judicial review applications based on
same allegations were dismissed. The Court of Appeal held that it
was an abuse of process to advance those claims in the civil actions
relying on the same constitutional challenge, which should have
been advanced in the judicial review proceedings.

7.8.3 A brief overview of the other possible causes of action in

tort for damages or statutory rights to compensation arising from
administrative or judicial acts are covered in Chapter 10 on “Other
Remedies”.

106
Chapter 7 The Process of Judicial Review

7.9 Costs
7.9.1 The general rule that costs will be awarded in favour of
the successful party (“costs following the event”) in civil litigation
applies equally to judicial review proceedings.

7.9.2 Public Interest Litigation: the court may depart from

making the usual order of costs following the event by taking into
consideration the public interest character of the judicial review as
one of the factors relevant to the exercise of discretion as to costs.
The overriding consideration is whether the applicant or the
general public should bear the consequence in the failed public law
challenge. The key considerations include:

(i) whether the applicant has properly brought proceedings to

seek guidance from the court on a point of general public
importance so that the litigation is for the benefit of the
community as a whole to warrant the costs of the litigation be
borne by the public purse as costs incidental to good public
administration;

(ii) whether the judicial decision has contributed to the proper

understanding of the law in question;

(iii) whether the applicant has any private gain in the outcome; and

(iv) whether the applicant’s case has had any real prospect of
success.

See Chu Hoi Dick & Anor v Secretary for Home Affairs (No 2)
[2007] 4 HKC 428, HCAL 87/2007 (6.9.2007), Kwok Wing Hang
& 23 Ors v Chief Executive in Council & Anor [2021] HKCFA 11,
FACV 6-9/2020 (22.3.2021), and Kwok Cheuk Kin & Anor v
Director of Lands & Ors [2021] 3 HKLRD 411, [2021] HKCA 915,
CACV 234, 317 & 319/2019 (25.6.2021).

107
Chapter 7 The Process of Judicial Review

7.9.3 Costs in leave application for judicial review: since an

application for leave to apply for judicial review is meant to be ex
parte, the general proposition is that an applicant for judicial
review who is refused leave would not be ordered to pay costs of a
putative respondent or putative interested party save in special or
unusual circumstances. The discretion to make such an award of
costs should be sparingly exercised only for good reasons, which
include the reason leading the opposing party to attend the hearing;
whether that party’s attendance has been of material benefit to the
court; and the underlying lack of merits of the application, always
bearing in mind the context that the court has refused to grant leave.
See Leung Kwok Hung v President of the Legislative Council
(2014) 17 HKCFAR 841, FACV 1/2014 (5.12.2014).

Case Example
In Cho Man Yee v Chief Executive of the HKSAR [2021] HKCFI
1365, HCAL 2405/2020 (20.5.2021), notwithstanding the general
proposition that an applicant for judicial review who is refused
leave would not be ordered to pay costs, the Applicant was ordered
to pay the HKSAR Government’s costs for the reasons that (i) the
application was obviously ill-conceived, (ii) the Putative
Respondent had filed an initial response as directed which had
provided material and helpful assistance, and (iii) the application
was an abuse of process.

7.9.4 Protective Costs Order (“PCO”): in exceptional cases,

the court may also make a PCO, that is, an order to the effect that
for the party who is granted a PCO, if that party is unsuccessful in
the judicial review, there will be no requirement for that
unsuccessful party to pay costs to the successful party. Generally,
a PCO may be made at any stage of the proceedings, on such

108
Chapter 7 The Process of Judicial Review

conditions as the court thinks fit, provided that the court is satisfied
that: (i) the issues raised are of general public importance; (ii) the
public interest requires that those issues should be resolved; (iii)
the applicant has no private interest in the outcome of the case; (iv)
having regard to the financial resources of the applicant and the
respondent(s) and to the amount of costs that are likely to be
involved, it is fair and just to make the order; and (v) if the order is
not made the applicant will probably discontinue the proceedings
and will be acting reasonably in so doing. If those acting for the
applicant are doing so pro bono, this will be likely to enhance the
merits of the application for a PCO. It is for the court, in its
discretion, to decide whether it is fair and just to make the order in
the light of the considerations set out above (Designing Hong Kong
Ltd v The Town Planning Board and Secretary for Justice [2018]
HKCFA 16, FACV 4/2018 (15.5.2018) applying R (Corner House
Research) v Secretary of State for Trade and Industry [2005] 1
WLR 2600).

7.9.5 As for the quantum of costs, the court has power to order
that the quantum of costs of the receiving party be assessed on a
more generous basis (i.e. “on an indemnity basis”) where the
paying party has conducted the proceedings in an oppressive or
otherwise unreasonable manner which does not meet with the
court’s approval.

7.10 Appeal
7.10.1 Where leave is refused to the applicant or is granted on
terms at first instance, the applicant may appeal against the order
to the Court of Appeal within 14 days after such order.

7.10.2 Where leave to apply for judicial review was brought out
of time and the extension of time was refused by the Court of First

109
Chapter 7 The Process of Judicial Review

Instance, such refusal decision is part and parcel of a refusal to

grant leave to apply for judicial review, thus the applicant may
appeal against the refusal to grant extension of time within 14 days
after such decision, in the same way as set out in 7.10.1 above. See
AH v Director of Immigration [2020] 4 HKC 454, [2020] HKCFA
22, FACV 2/2020 (14.7.2020).

7.10.3 Where leave is granted and the judicial review is

substantively determined, the losing party may appeal against the
order to the Court of Appeal within 28 days from the date of the
judgment, order or decision concerned.

7.10.4 A respondent who, having been served with a notice of

appeal, desires to contend that (i) the decision of the court below
should be varied, either in any event or in the event of the appeal
being allowed in whole or in part, or (ii) the decision of the court
below should be affirmed on grounds other than those relied upon
by that court, or (iii) by way of cross-appeal, the decision of the
court below was wrong in whole or in part, must issue and serve a
Respondent’s Notice.

7.10.5 In exceptional cases, civil appeals may go directly from

the Court of First Instance to the Court of Final Appeal (generally
known as “leap-frog appeals”). A leap-frog appeal may be
appropriate where the Court of First Instance and all the parties
involved agree that a point of law of great general or public
importance is involved, the case relates wholly or mainly to the
construction of statute or the Basic Law, and the judge is bound by
a decision of the Court of Appeal or the Court of Final Appeal in
previous proceedings (Town Planning Board v Society for the
Protection of the Harbour Ltd (2004) 7 HKCFAR 1, FACV
14/2003 (9.1.2004)).

110
Chapter 7 The Process of Judicial Review

7.10.6 A leap-frog appeal mechanism is also applicable to

judicial review proceedings under the Chief Executive Election
Ordinance (Cap. 569), subject to leave being granted by the Appeal
Committee of the Court of Final Appeal (Re Ho Chun Yan, Albert
(2012) 15 HKCFAR 686, FAMV 21-22, 24-26, 32-34/2012
(13.11.2012)).

7.11 Intervention
7.11.1 An application for leave to intervene in judicial review
proceedings may be made to the court at any stage. Leave to
intervene may be granted to a party who is “a proper person to be
heard”, considering the following primary questions: (1) whether
the appeal involves primarily a question of general public
importance; (2) whether the proposed intervener’s fund of
knowledge or particular point of view enables him to provide the
court with a more rounded picture than the court would otherwise
obtain; (3) conversely, whether the proposed intervener will
merely repeat points that an existing party will be making; (4)
overall, whether the intervention is likely to be helpful and appears
justified; and (5) whether the intervention will cause any prejudice
to the existing parties or the court. See QT v Director of
Immigration & Ors, unreported, CACV 117/2016 (8.6.2017) and
W v Registrar of Marriages [2010] 6 HKC 359, HCAL 120/2009
(5.10.2010)

7.12 Case Management

7.12.1 The conduct of judicial review proceedings is generally
prescribed in Practice Direction SL3 which has been in effect since
2009. In May 2021, Practice Direction 26.1 on the Constitutional
and Administrative Law List was introduced which provides
(among other things) that the court may exercise tighter and closer

111
Chapter 7 The Process of Judicial Review

case management control of leave and substantive applications by

making appropriate case management directions which may
override the timetable as set out in Practice Direction SL3. In
particular, it is provided that the court will at the conclusion of the
hearing indicate the likely date on which the judgment will be
handed down, and shall notify the parties of the new date if a
postponement is required.

112
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

8. Judicial Review in Immigration

Context (Immigration Matters)
8.1 Overview
8.1.1 In light of the unique circumstances of the HKSAR, the
Immigration Department has to adopt stringent immigration
control, and wide discretion has been given to the Director of
Immigration (“the Director”) on immigration matters, the exercise
of which would not be lightly interfered with by the court. In this
regard, BL 154(2) provides that the HKSAR may apply
immigration control on entry into, stay in and departure from the
HKSAR by persons from foreign states and regions. On the
domestic level, the Director through the Immigration Ordinance
(Cap. 115) implements and imposes such immigration control.

8.1.2 In exercising his immigration control power and wide

discretion, the Director needs to observe the protection of
fundamental rights under the BL, HKBORO and common law.
Relevantly, BL 24 provides that residents of the HKSAR shall
include permanent residents (“PRs”) and non-permanent residents
(“non-PRs”). BL 41 refers to persons in the HKSAR other than
Hong Kong residents (“non-residents”), for instance, illegal
immigrants and visitors. In gist, there are three different categories
of persons who have different rights viz., PRs, non-PRs, and non-
residents.

8.1.3 The court retains a supervisory jurisdiction in accordance

with well-established public law principles by way of judicial
review, which ensures that the Director’s exercise of power does
not contravene the legal rights of the persons protected by the BL,
HKBOR and common law: See BI & BH v Director of Immigration
[2016] HKLRD 520, CACV 9, 103 & 134/2015 (8.3.2016). In

113
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

particular, the court may be prepared to adopt an anxious scrutiny

approach in examining the Director’s decisions on foreigners, and
their public law rights, especially where issues of fundamental
rights are involved in the context of immigration matters: See C &
Ors v Director of Immigration (2013) 16 HKCFAR 280, FACV
18/2011 (25.3.2013).

8.2 Right of Abode (“ROA”)

8.2.1 The Immigration Ordinance first came into force on
1.4.1972. There was then no reference to “ROA” and “PR” in the
statute. On 19.12.1984, the Chinese Government and the British
Government signed the Sino-British Joint Declaration, Section
XIV of Annex I to which elaborated the basic policies of the PRC
concerning the categories of persons who shall have ROA in Hong
Kong. The Immigration Ordinance then underwent major
amendments in 1987, to provide statutory underpinning for the
concepts of “ROA” and “PR”. The BL was promulgated on
4.4.1990. The definition of “PR” in BL 24 mirrored Section XIV
of Annex I to the Sino-British Joint Declaration and is reflected in
Schedule 1 to the current Immigration Ordinance: See Vallejos
Evangeline Banao v Commissioner of Registration [2011] 6 HKC
469, HCAL 124/2010 (30.9.2011).

8.2.2 A PR enjoys ROA in Hong Kong which, as defined in

section 2A of the Immigration Ordinance, includes the right to land
in Hong Kong, not to have imposed upon him any condition of stay
and not to be deported or removed. A PR is entitled to obtain a
Hong Kong permanent identity card which states his ROA.

8.2.3 A non-PR is qualified to obtain a Hong Kong identity

card but has no ROA. He/she is not qualified to obtain a Hong
Kong permanent identity card. Further, some fundamental rights
are only enjoyed by PRs, such as the right to vote and the right to

114
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

stand for election under BL 26 and the right to participate in public

life under HKBOR 21. That said, other fundamental rights
guaranteed by Chapter III of the BL and HKBORO are enjoyed by
all Hong Kong residents (whether permanent or non-permanent).
By virtue of BL 41, non-residents shall, in accordance with law,
enjoy the fundamental rights and freedom of Hong Kong residents
prescribed in Chapter III of the BL: See Kong Yunming v The
Director of Social Welfare (2013) 16 HKCFAR 985, FACV
2/2013 (17.12.2013), para 163.

8.2.4 Since the resumption of sovereignty on 1.7.1997, the

ROA issue has given rise to a number of significant lawsuits. The
earlier ROA disputes began with claims by children born in the
Mainland China for ROA in Hong Kong under the BL.

See Ng Ka Ling & Ors v Director of Immigration (1999) 2

HKCFAR 4, FACV 14/1998 (29.1.1999), and Chan Kam Nga v
Director of Immigration (1999) 2 HKCFAR 82, FACV 3/1998
(29.1.1999). The law is now well-settled:

An Interpretation was made by the NPCSC on BL 22(4) and BL

24(2)(3) on 26.6.1999. The Interpretation came into effect on
1.7.1997:

(a) under BL 22(4), persons from other parts of Mainland

China including those persons within BL 24(2)(3), who wished to
enter Hong Kong for whatever reason, had to apply to the relevant
authorities for approval in accordance with the relevant national
laws and administrative regulations and had to hold valid
documents issued by the relevant authorities before they could
enter Hong Kong; see Ng Siu Tung & Ors v Director of
Immigration (2002) 5 HKCFAR 1, FACV 1, 2 & 3/2001
(10.1.2002); and

115
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

(b) to qualify as a PR under BL 24(2)(3), it was necessary

that both parents or either parent of the person concerned had to be
a PR within BL 24(2)(1) or BL 24(2)(2) at the time of birth of the
person concerned: See Lau Kong Yung & Ors v Director of
Immigration (1999) 2 HKCFAR 300, FACV 10 & 11/1999
(3.12.1999).

8.2.5 For non-PRs and non-residents of foreign nationality who

wish to claim ROA in Hong Kong under BL 24(2)(4), they are
required to satisfy the following requirements:

(a) Having entered Hong Kong with a valid travel document;

(b) Having ordinarily resided in Hong Kong for a continuous

period of not less than seven years; and

(c) Having taken Hong Kong as their place of permanent residence.

8.2.6 Of the persons claiming ROA, some were foreign

domestic helpers (“FDHs”) who entered Hong Kong by way of
their employment visas and their minor children who were born in
Hong Kong. Pursuant to section 2(4)(a)(vi) of the Immigration
Ordinance which provides that a person shall not be treated as
ordinarily resident in Hong Kong while employed as a FDH, FDHs
are not able to claim ROA as they would not be able to meet the
ordinary residence requirement under BL 24(2)(4).

Case Example
In Vallejos and Domingo v Commissioner of Registration & Anor
(2013) 16 HKCFAR 45, FACV 19 & 20/2012 (25.3.2013), the
applicants who were FDHs from the Philippines and had worked

116
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

in Hong Kong for more than 20 years contended that section

2(4)(a)(vi) of the Immigration Ordinance was inconsistent with BL
24(2)(4) and invalid. The CFA held that section 2(4)(a)(vi) was
consistent with BL 24(2)(4) and in view of the restrictive nature of
FDHs’ stay for employment, their stay in Hong Kong did not
qualify as ordinary residence for the purpose of claiming ROA.

8.2.7 In considering a minor’s claim for ROA, the question of

ordinary residence and place of permanent residence under BL
24(2(4) is highly fact-sensitive and depends on the parent’s or
guardian’s position.

Case Example
In Gutierrez Joseph James, a minor v Commissioner of
Registration & Anor (2014) 17 HKCFAR 518, FACV 2/2014
(18.9.2014), the appellant had lived continuously in Hong Kong
since birth for around 10 years with numerous visitor visa
extensions and certain periods of absence while his mother was
working as a FDH for various employers. It was held that the
permanence requirement under BL 24(2)(4) required a child
applicant for ROA to meet the criterion of having taken Hong
Kong as his place of permanent residence, taking into account his
individual circumstances, including any action taken or
arrangements made by himself or by a parent or legal guardian on
his behalf or for his benefit.

8.3 Other Fundamental Rights

8.3.1 As mentioned in para 8.2.3 above, non-PRs and non-
residents enjoy all fundamental rights (save for a few) as enjoyed

117
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

by PRs. The Director’s immigration control powers include

powers to impose condition of stay and policy requirements for
entry into Hong Kong and powers to remove or deport immigrants,
which may touch upon fundamental rights and are subject to
judicial review.

Visa Policies
8.3.2 For non-residents seeking to enter and stay in Hong Kong,
usual attacks are against the Director’s decisions made under
different entry visa policies, such as the employment policy and
the dependant policy.

8.3.3 Non-residents may not be able to challenge an

immigration policy relying on rights under HKBORO if such rights
are subject to the immigration reservation provided in section 11
of the HKBORO. They may also not be able to rely on rights under
an international treaty if it has not been incorporated into domestic
law and if the relevant part of the treaty is subject to reservation.

Case Example
In Lubiano Nancy Almorin v Director of Immigration [2020] 5
HKLRD 107, [2020] HKCA 782, CACV 112/2018 (21.9.2020),
a FDH challenged the immigration and labour policy that the
Director would only grant an employment visa to a FDH who
undertook to abide by the requirement that she must reside at her
employer’s residence, relying on the right to adequate rest and
limitation on working hours under ICESCR 7 and the argument
that the requirement heightened the risk of violation of
fundamental human rights of foreign domestic helpers in respect
of ICESCR 7. The Court of Appeal held that a FDH was precluded
from relying on the said right under ICESCR 7, which is a cognate
right to the right against forced labour under BOR 4(3), and it fell

118
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

within the scope of the reservation of the Director’s right to impose

restrictions on the taking of employment in Hong Kong under
ICESCR 6.

8.3.4 The Director is under no duty and hence not bound to take
humanitarian considerations into account when applying
immigration policies: See Lau Kong Yung & Ors v Director of
Immigration (1999) 2 HKCFAR 300, FACV 10 & 11/1999
(3.12.1999) at 332G-H. In cases where the Director did give
regard to humanitarian considerations, the court could intervene if
there were unfairness in the process: See BI & BH v Director of
Immigration [2016] HKLRD 520, CACV 9, 103 & 134/2015
(8.3.2016), paras 70-105.

8.3.5 There were cases where the Director refused to grant a

dependant visa even when the spousal relationship between an
applicant (foreigner) and a sponsor (PR or non-PR) was considered
to be genuine.

Case Example
In H & AH v Director of Immigration (2020) 23 HKCFAR 437,
[2020] HKCFA 34, FAMV 415/2019 & 3/2020 (12.11.2020), the
applicants in the two cases were both non-refoulement claimants.
The applicant in H had a record of suspected offence whereas the
applicant in AH had a conviction record. Their applications to
remain as a dependant of their respective PR wives were refused
by the Director. The CFA upheld that the dependant policy is not
a family reunion policy and its requirement that there is no record
to the detriment of the applicant is an eligibility criterion to be met
for a dependant visa to be granted, which is not limited to
conviction record of serious offences. See also BI & BH, ibid.

119
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

Family Rights
8.3.6 On increasingly more occasions, foreigners have asserted
a right to enter and stay in Hong Kong on the basis of the rights of
their family members. It is now settled that a foreign national
cannot rely on such rights.

Case Example
In Comilang & Ors v Director of Immigration (2019) 22
HKCFAR 59, [2019] HKCFA 10, FACV 9 & 10/2018 (4.4.2019),
two FDHs who have no ROA and no right to enter and remain in
Hong Kong applied for permission to remain in Hong Kong to take
care of their minor children who were PRs. Their applications
were refused by the Director as they did not fall within any
immigration policies and there were no exceptional circumstances
for him to exercise his discretion to allow the applications. Upon
their challenge against the Director’s decisions by way of judicial
review, the CFA held that the Director was not duty-bound to take
into account the purported family rights under the relevant BL and
HKBOR provisions (e.g. BL 24 and BOR 14). The CFA further
held that when the Director was exercising his discretion to refuse
the appellants’ permission to stay, by section 11 of the HKBORO
which was given constitutional force by BL 39, the appellants’
reliance upon the relevant international treaty and convention (e.g.
ICCPR 17 and ICCPR 23) were not engaged.

Right to Work
8.3.7 Under the Immigration Ordinance, the Director is given
the power to grant permission to work in Hong Kong to non-
residents including successful non-refoulement claimants.

120
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

Case Example
In GA v Director of Immigration (2014) 17 HKCFAR 60, FACV
7, 8, 9 & 10/2013 (18.2.2014), the Director refused to give
permission to some mandated refugees and screened-in torture
claimants to work in Hong Kong and they claimed that they had a
constitutional right to work under BOR 14, ICESCR 6 and BL 33.
The CFA, in dismissing their appeal, held that a discretion vested
in the Director to determine whether or not persons in their position
should be permitted to work came within the rubric of immigration
control and is subject to the immigration reservation under section
11 of the HKBORO. The appellant could not rely on any right
under ICESCR 6 as it is not domestic law and is subject to the UK
reservation which applies to Hong Kong. Further, BL 33 does not
refer to the right to work in general and only deals with the freedom
of choice of occupation which is much narrower.

Removal/Deportation
8.3.8 In considering the removal or deportation of foreign
nationals who do not have any right to land or remain in Hong
Kong, the Director will take into account the fundamental rights
raised by them.

Case Example
In Sukhmander Singh v Permanent Secretary for Security,
unreported, CACV 370/2005 (20.7.2006), the applicant who was
a non-permanent resident claimed that his life would be at risk if
he was deported to India as he would, through lack of means, be
compelled to live in the same village as his assailants. The CA
held that any real risk to life, if demonstrated, is a factor that the

121
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

decision-maker cannot ignore and that the Permanent Secretary for

Security failed to address the key question on the level of risk to
the applicant if returned and the matter was remitted for fresh
decision.

8.4 Non-Refoulement Claims

8.4.1 A non-refoulement claim (“NRC”) is a claim for non-
refoulement protection in Hong Kong against expulsion, return or
surrender of a claimant to another country.

8.4.2 The genesis and the present position on the mechanism in

processing NRCs is summarised as follows. Following the CFA
judgment in Secretary for Security v Sakthevel Prabakar (2004) 7
HKCFAR 187, FACV 16/2003 (8.6.2004), which required high
standards of fairness to be applied when assessing torture claims,
the Immigration Department introduced an administrative
mechanism for the assessment of torture claims. The mechanism
was further enhanced in December 2009 after the Court of First
Instance’s judgment in FB & Ors v Director of Immigration [2009]
2 HKLRD 346, HCAL 51, 105-7 & 125-6/2007 (5.12.2008), which
held that free legal representation should be provided to a non-
refoulement claimant in presenting his case to the Director
(“Enhanced Administrative Mechanism”). The Enhanced
Administrative Mechanism was subsequently underpinned in a
statutory framework under Part VIIC of the Immigration
Ordinance (introduced by the Immigration Amendment Ordinance
2012) that came into effect on 3.12.2012.

8.4.3 In addition, in the light of the CFA’s rulings in Ubamaka

Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743,
FACV 15/2011 (21.12.2012) and C & Ors v Director of
Immigration (2013) 16 HKCFAR 280, FACV 18-20/2011
(25.3.2013) in December 2012 and March 2013 respectively, the

122
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

Unified Screening Mechanism (“USM”) was introduced to screen

NRCs on all applicable grounds, including risk of torture under the
Immigration Ordinance; personal and substantial risk of absolute
and non-derogable rights under the HKBOR being violated in
another country; and risk of persecution in one go. Procedures of
the USM follow those of the statutory torture claim screening
mechanism to ensure that high standards of fairness are met in the
screening of NRCs.

8.4.4 The screening of NRCs had been subjected to a number

of judicial review challenges. The court has upheld, amongst
others, the following legal principles:

(a) While a non-refoulement claimant is entitled to free legal

representation in presenting his case to the Director, there is
no authority that the claimant must have an absolute right to
free legal representation at all stages of the proceedings: See
FB & Ors v Director of Immigration [2009] 2 HKLRD 346,
HCAL 51, 105-7 & 125-6/2007 (5.12.2008) and Re
Zunariyah [2018] HKCA 14, CACV 195/2017 (11.1.2018).

(b) The nature of the appeal/petition of a NRC involves a

rehearing of the claim. The Torture Claims Appeal
Board/Non-refoulement Claims Petition Office will consider
the claim afresh, can take fresh oral evidence, and can make
findings of facts with or without regard of the findings of the
Director: See AM v Director of Immigration & William Lam,
Adjudicator [2014] 1 HKC 416, HCAL 102/2012
(20.11.2013).

(c) There is no absolute right to an oral hearing even in the

context of NRCs. The ultimate question of whether to hold
an oral hearing is one of fairness. The crux is to afford an
opportunity to make worthwhile or effective representations

123
Chapter 8 Judicial Review in Immigration Context (Immigration Matters)

in appropriate circumstances: See ST v Betty Kwan & Ors

[2014] 4 HKLRD 277, CACV 115/2013 (26.6.2014).

124
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

9. Judicial Review in Land,

Environmental, Planning and
Building Context
9.1 Introduction
9.1.1 In recent years, there has been a surge of judicial review
cases in Hong Kong concerning land, environmental, planning and
building matters. These cases feature a wide array of issues such
as standing, justiciability and the different grounds for judicial
review considered in the earlier chapters of this Guide.

9.2 Judicial Review concerning Land

Matters
9.2.1 Under Article 7 of the Basic Law, the Government of the
Hong Kong Special Administrative Region is responsible for the
management, use and development of land and for granting leases
to individuals, legal persons or organisations for the use or
development of land. In practice, this power is delegated by the
Chief Executive to the Secretary for Development, and then to the
officers of the Lands Department, which is the Government’s
executive arm for land administration. Land-related judicial
review usually arises out of the administrative decisions taken by
the Director of Lands (“DL”) during the process of land disposal
and acquisition, and also in the context of enforcement of lease
conditions.

125
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

9.2.2 One of the most central issues in land-related judicial

review is whether the decision is susceptible to judicial review.

Case Example
Hang Wah Chong Investment Co Ltd v Attorney General [1981]
1 WLR 1141 (23.3.1981) was a landmark case which ruled on the
justiciability of decisions taken by the DL. In this case, the
applicant (a lessee of Government land) intended to erect buildings
that were subject to the approval of the then Director of Public
Works (“DPW”). The DPW granted approval conditional upon the
payment of a premium, which was challenged by the applicant
through judicial review proceedings. The Privy Council held that
in demanding the premium, the DWP was merely acting as the
Government’s land agent and hence, the decision should be dealt
with within the framework of private law, not public law. This led
to the establishment of the broad principle that decisions made in
relation to Government leases (i.e. where the official acts merely
as the Government’s land agent, taking care of the interests of the
Government as a landlord) are not normally susceptible to judicial
review. 11

9.2.3 Judicial review cases in recent years suggest that certain

decisions of the DL may be regarded by the courts as “public” in
nature (i.e. affecting public law rights), despite the DL’s role as the
Government’s land agent and the long-standing principle that
decisions made by the DL in such a capacity should generally be
dealt with within the framework of private law. The true question
is whether the making of the decision amounted to the performance
of a function within the public domain: see Hong Kong and China

11
See Chapter 2.3.2 for limits on judicial review generally.

126
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

Gas Co Ltd v Director of Lands [1997] HKLRD 1291, HCAL

50/1997 (21.11.1997), adopted in Kam Lan Koon & Ors v
Secretary for Justice [1999] 3 HKC 591; CACV 197/1998
(29.7.1999).

Case Example
In Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD
169, CACV 170/2012 (24.5.2013), the DL, amongst others,
cancelled Government Land Licences held by the applicant in
respect of land in the Sai Kung area pursuant to the power under
section 5 of the Land (Miscellaneous Provisions) Ordinance (Cap.
28). The Court of Appeal considered both the authorities in which
the DL’s decisions were held to be judicially reviewable (including
Wong Wai Hing Christopher v Director of Lands [2011] 1 HKLRD
C2; HCAL 95, 97 & 98/2010 (24.9.2010)), and those in which they
were held not. The court ultimately held that the mere presence of
some public element in the decision by reason of the statutory
power was not sufficient to transform it into a public law decision,
and one should examine the statutory regime to see whether the
regime instilled a sufficient public character into the decision to
render it judicially reviewable. The court accepted that the DL was
exercising the right as a licensor and was performing a private
function in making the decision in question, which was thus a
commercial decision and not amenable to judicial review.

9.2.4 In summary, the position now is that the courts will

determine whether or not decisions of the DL are justiciable on a
case-by-case basis. Even decisions concerned with the same
policy may not carry the same degree of public character. For
example, in Koon Ping Leung v Director of Lands [2012] 2 HKC
329; HCAL 14/2011 (26.1.2012), the DL’s refusal to grant land for

127
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

building houses under the Small House Policy (“the Policy”) was
held to be judicially reviewable. But in Hung Hing v Director of
Lands [2015] 5 HKLRD 516; CACV 118/2015 (17.9.2015), the
Court of Appeal held that not each and every matter concerned
with the Policy was judicially reviewable, and the DL’s refusal to
grant land for constructing vehicular access to houses built under
the Policy was not. Therefore, in each case, the crucial question
remains whether the role played or function performed by the
Government official in making the decision in question is
sufficiently public to render the decision amenable to judicial
review.

9.3 Environmental Challenges

9.3.1 In the face of growing public concern about the state of
the environment and the impact of environmental degradation on
public health in Hong Kong, concerned citizens and interest groups
have made applications for judicial review.

9.3.2 In the early-mid 2000s, the most significant

environmental judicial review cases concerned the reclamation of
the Victoria Harbour. The most notable challenges were brought
by the Society for the Protection of the Harbour (“the Society”), a
public interest organisation aiming at preventing excessive and/or
unlawful reclamation of the Victoria Harbour.

Case Example
In Society for the Protection of the Harbour v Town Planning
Board (2004) 7 HKCFAR 1, FACV 14/2003 (9.1.2004), the
Society challenged the decisions of the Town Planning Board (“the
Board”) in respect of amendments to the Wanchai North Outline
Zoning Plan which would permit a reclamation project along the

128
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

Wanchai waterfront. The Society’s main ground was that the

Board erred in law in that it had misinterpreted section 3 of the
Protection of the Harbour Ordinance (Cap. 531), under which the
harbour was recognised as a special public asset and natural
heritage of Hong Kong people and specified a “presumption
against reclamation” in the harbour. The courts (at both the Court
of First Instance and the Court of Final Appeal levels) accepted the
Society’s principal argument that section 3 required the Board to
adopt the test of “overriding public need” i.e. there must be cogent
and convincing materials before the Board that the overriding
public need for reclamation rebutted the presumption against
reclamation. Since the Board failed to adopt such a test, its
decision was quashed for error of law and was remitted for
reconsideration.

9.3.3 More recently, environmental challenges by way of

judicial review mostly concerned decisions made under the
Environmental Impact Assessment Ordinance (Cap. 499) (“the
EIAO”). The EIAO is intended to provide for the protection of the
environment and has introduced an environmental impact
assessment (“the EIA”) process for “designated projects” (i.e.
projects which are likely to have a significant adverse impact on
the environment unless properly studied and controlled). Under
the EIA process, proponents of projects must prepare an EIA report
which meets the requirements of the “Study Brief” (“the SB”)
(which is specific to the project) issued by the Director of
Environmental Protection (“the DEP”) and the “Technical
Memorandum” (“the TM”) (which sets out the more general
principles, procedures, guidelines and criteria applicable to all
projects) issued by the Secretary for the Environment. The judicial
review cases mostly feature disputes over the interpretation of the
requirements under the SB and the TM.

129
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

Case Example
In Shiu Wing Steel Ltd v Director of Protection and Airport
Authority (No. 2) (2006) 9 HKCFAR 478, FACV 28/2005
(17.7.2006), the applicant (a steel mill operator) challenged the
DEP’s decision to approve an EIA report prepared by the Airport
Authority in respect of its proposed storage of aviation fuel by
constructing a permanent air fuel farm next to the applicant’s site.
At issue was whether the EIA report failed to contain a
Quantitative Risk Assessment (“QRA”) embracing the scenario of
a catastrophic failure of a fuel storage tank with an instantaneous
or almost instantaneous loss of 100% of the tank’s contents. The
Court of Final Appeal (overruling the Court of First Instance and
Court of Appeal’s decisions) held that the meaning of the TM and
the SB was a question of law for the court, and, adopting a
purposive interpretation, that “consideration of the potential
environmental impacts of a project cannot be complete if the
methodology adopted for their prediction omits the consequences
of possible scenarios which may cause fatalities unless the causes
of the scenarios are expected or anticipated” (at para 64). It was
thus held that the absence of QRA in the EIA report meant that
there was an omission or deficiency that may affect the results and
conclusions of the report. The DEP therefore had no power to
approve the EIA report and his decision was quashed.

In Chu Yee Wah v Director of Environmental Protection [2011]

5 HKLRD 469, CACV 84/2011 (27.9.2011), the applicant
challenged that the DEP had no power to approve an EIA report
relating to designated projects of the Hong Kong-Zhuhai-Macao
Bridge, due to lack of compliance with the requirements of the TM
and the SB. Specifically, the key issue in debate was whether the
impact of the projects on air quality was properly assessed in the
EIA report. The Court of Appeal (in allowing the DEP’s appeal)

130
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

held that on the true construction of the TM and the SB, a “stand-
alone” analysis was not required. Instead, it was deemed proper
for the DEP to issue the environmental permit based on existing air
quality objectives, which represented an acceptable environmental
standard for measuring whether a designated project produced an
environmental impact which was prejudicial to health. Notably,
Tang VP (as he then was) observed that while it was a matter of
construction for the court to decide what was required by the TM
or the SB, “what information may be required by the DEP to make
an informed decision may be and often is (also) a question of
professional judgment” (at para 96).

9.3.4 Apart from taking up the role as the approving authority,

the DEP, in certain circumstances, also acts as a proponent under
the EIAO. Recently, the multiple roles of the DEP have been put
into question.

Case Example
In Leung Hon Wai v Director of Environmental Protection (2015)
18 HKCFAR 568, FACV 2/2015 (18.12.2015), the Infrastructure
Planning Group (“the IPG”) of the Environmental Protection
Department (“the EPD”), as the proponent of a project to construct
and operate a municipal waste incinerator on an artificial island
near Shek Kwu Chau, made applications to the Environmental
Assessment Division (“the EAD”) of the EPD in the name of the
DEP under the EIAO, resulting in the DEP’s decisions to approve
the EIA report and permit. The issue was whether the DEP, who
headed the EPD, could be the named applicant while being the
approving authority. The Court of Final Appeal held, upon the true
construction of the EIAO, that the EPD (as headed by the DEP)
could be an applicant seeking the DEP’s approval, unless in

131
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

playing such a role, an inevitable conflict of interest must arise or

did in fact arise. As the functions of the EAD and the IPG were
clearly separated, and it was clearly envisaged by the legislature
that the DEP, as waste disposal authority and proponent of waste
disposal facilities, might apply for an environmental permit under
the EIAO, there was no basis to exclude the EPD and the DEP as
the project proponent in this case, and thus the appeal was
dismissed in the DEP’s favour.

9.4 Planning Cases

9.4.1 The Town Planning Ordinance (Cap. 131) (“the TPO”)
provides for the establishment of the Town Planning Board (“the
Board”) whose functions are prescribed by section 3, which, inter
alia, requires the Board to “undertake the systematic preparation of
draft plans for the lay-out of areas of Hong Kong as well as the
types of building suitable for erection therein.” The TPO also
prescribes a public consultation procedure, whereby the Board
must consider representations and comments on the draft plans
from the public before submitting them to the Chief Executive in
Council for approval. The plan-making process and the public
consultation procedure affect people’s rights and have been the
subject of many judicial review applications. Many of the planning
judicial review challenges have been brought out of a concern for
negative impacts of the planning restrictions that might be imposed
under the Draft Outline Zoning Plans (“DOZPs”) on the
permissible development intensity on the land.

9.4.2 One of the key challenges in judicial review concerns the

scope of power of the Board.

132
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

Case Example
In Turbo Top Ltd v Town Planning Board, unreported, HCAL
52/2011 (21.11.2011), the Board proposed amendments to the
DOZP for the area where “Cheung Kong Centre” is situated, by
rezoning the site as a “Commercial (1)” site and stipulating in the
notes to the DOZP that the site should have a minimum of 800
public car parking spaces. The applicant contended that the
decisions of the Board in respect of the amendments were ultra
vires because they constituted impermissible “micro-managing” of
the uses of a specific building rather than an area. At the Court of
First Instance, Reyes J held that the decisions fell squarely within
the functions of the Board as defined in the long title and sections
3 & 4 of the TPO. For the “convenience and general welfare” of
the community, the Board designated the site as a Commercial (1)
site and imposed a minimum number of car parking spaces.

9.4.3 There are many examples of judicial review challenges

founded upon other grounds, including a material error of fact, e.g.
Smart Gain Investment Ltd v Town Planning Board & Anor,
unreported, HCAL 12/2007 (6.11.2007) (also in para 3.3.25 above).

9.4.4 There are also challenges alleging violations of

constitutionally guaranteed rights in planning decisions. The most
common rights being involved are the rights contained under
Articles 6 and 105 of the Basic Law, which provide, respectively,
that “The Hong Kong Special Administrative Region shall protect
the right of private ownership of property in accordance with law”,
and that “The Hong Kong Special Administrative Region shall, in
accordance with law, protect the right of individuals and legal
persons to the acquisition, use, disposal and inheritance of property
and their right to compensation for lawful deprivation of their

133
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

property…”, see Hysan Development Co Ltd & Ors v Town

Planning Board (2016) 19 HKCFAR 372, FACV 21 & 22/2015
(26.9.2016).

9.4.5 A draft or approved plan may provide for the grant of

permission for certain purposes. In such circumstances, the Board
is empowered to grant or refuse to grant such permission upon an
application under section 16 of the TPO, and such a decision is
subject to a review by the Board under section 17. Recently, the
exact scope of the Board’s power to review under section 17 was
challenged.

Case Example
In Town Planning Board v Town Planning Appeal Board (2017)
20 HKCFAR 196, FACV 8/2016 (16.2.2017), a permission under
section 16 of the TPO, upon appeal, was granted by the Town
Planning Appeal Board subject to certain conditions. However,
during the course of implementation, the Board refused to grant
approval for one of the conditions, and refused to review the
refusal pursuant to section 17 of the TPO on the grounds that it had
no power to do so. The majority (in the ratio of 4:1) of the Court
of Final Appeal held, upon the true construction of section 17, that
the review under section 17 was a narrow one, and it covered only
a decision to refuse to grant permission or that to grant permission
with conditions under section 16 of the TPO, but not every decision
made in relation to section 16 regardless of its nature.

134
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

9.5 Building Cases

9.5.1 Apart from the general planning restrictions imposed by
the Town Planning Board on the lay-out of areas and types of
building in Hong Kong, a person seeking to erect a building or
carry out building works is also subject to the Buildings Ordinance
(Cap. 123) (“the BO”) concerning a specific development. The
Building Authority (“the BA”) may, on the grounds stipulated
under the BO, refuse to give approval of a plan of building works.
In recent years, the proper interpretation of the statutory grounds
of refusal under section 16 of the BO has been reviewed.

Case Example
In Building Authority v Appeal Tribunal (Buildings) (2015) 18
HKCFAR 317, FACV 7/2014 (13.3.2015), the applicant
submitted building plans for 39-storey buildings in replacement of
5-storey buildings, which were rejected by the BA on the grounds
of, amongst others, section 16(1)(g) of the BO as the proposed
buildings differed in height from buildings in the immediate
neighbourhood, which would lead to increased density and in turn
pose danger and / or inconvenience to traffic. The issue before the
Court of Final Appeal was whether in the application of section
16(1)(g), consideration could be given to health, safety and other
town planning aspects. The court, upon a purposive construction
of section 16(1)(g), held that matters of health, safety and town
planning would be relevant considerations provided that they were
directly attributable (or in other words, causally related) to the
difference identified under section 16(1)(g). As the role of the BA
was different from that of the Town Planning Board, “height,
design, type and intended use” of any proposed building set out
under section 16(1)(g), while being town planning considerations,
should be considered by the BA as they were specific to the

135
Chapter 9 Judicial Review in Land, Environmental, Planning and
Building Context

proposed development, but not “general” town planning

considerations. It was thus correct for the BA to consider the
increased density and adverse traffic impact as a result of the
difference in height.

In Real Estate Developers Association of Hong Kong v Building

Authority (2016) 19 HKCFAR 243, FACV 19/2015 (19.5.2016),
the BA’s policy requiring particulars and proof of ownership or
realistic prospects of ownership of the “site” in question be
submitted with a general building plan of a proposed new building
(“the Policy”) was challenged. The Court of Final Appeal held that
section 16 of the BO should be construed in the context of other
provisions of the BO and the Building (Planning) Regulations (Cap.
123F) (“the BPR”). It was held that the concept of the “site” under
the BPR could only include land that the applicant owned or had a
realistic prospect of controlling, and on a purposive construction in
the broader context of the BO, for land to qualify as a site, it must
be land on which it was bona fide intended that the approved
building would be built. Thus, the BA could require the provision
of particulars of ownership or realistic prospects of control under
section 16(1)(i) of the BO, and other provisions of section 16
would be engaged as well: “under (1)(a), the plans could be
refused approval because that did not relate to such a site; under
(1)(c) because the application did not contain the particulars of
ownership or realistic prospect of control required and under (1)(d)
because only building works in relation to which plans had been
properly approved could be built” (at para 67).

9.5.2 The above cases highlight the importance for public

officers to properly understand the interpretation and scope of any
powers conferred on them by way of statutes before making
decisions pursuant to such statutory powers.

136
Chapter 10 Other Remedies

10. Other Remedies

Apart from judicial review, there are other channels
available for challenging an administrative decision or
compensating a person’s loss arising from maladministration. The
main types are:

(a) Habeas Corpus;

(b) Private law actions for damages;
(c) Alternative Dispute Resolution;
(d) The Ombudsman;
(e) The Privacy Commissioner for Personal Data;
(f) Administrative Appeals Board and other tribunals and
appeal boards
(g) Inquiries;
(h) Remedies under the HKBOR; and
(i) Ex gratia compensation.

10.1 Habeas Corpus

10.1.1 The writ of habeas corpus is a long-standing common law
remedy which is to provide an effective means of securing
immediate release from unlawful or unjustifiable detention and of
overcoming evasion and abuse of orders meant to bring prisoners
to the court. See, for example, Harjang Singh v Secretary for
Security & Anor [2021] HKCFI 705, HCAL 224/2021 (19.3.2021)
and Syed Agha Raza Shah v The Director of Health [2021] HKCFI
770, HCMP 468/2020 (13.5.2020).

137
Chapter 10 Other Remedies

10.2 Private law actions for damages

10.2.1 There are five main types of civil actions one may
commence against the Administration for recovering losses,
namely:

(a) Negligence;
(b) Breach of statutory duty;
(c) Misfeasance in public office;
(d) False imprisonment; and
(e) Malicious prosecution.

Negligence
10.2.2 Government and other public authorities have no general
immunity from claims in negligence. For a claimant to succeed in
an action in negligence against a public authority, he must establish
all the elements of the tort that would have to be established if a
private body or person was being sued. The elements are, in
essence, that the claimant should have suffered damage as a result
of the defendant breaching a duty of care owed to the claimant.
The liability is based on well-established principles of the tort of
negligence laid down in Donoghue v Stevenson [1932] AC 562
(HL) (26.5.1932).

10.2.3. Damage suffered: In general the damage suffered is

limited to personal injury or physical damage to property that was
both reasonably foreseeable and proximately caused by careless
acts or omissions. The common law develops incrementally from
analogous precedents. There have been many attempts to extend
the tort of negligence to cases where the only form of damage
suffered was economic loss without physical damage or personal
injury. In general there is no such liability. See, for example,
Murphy v Brentwood District Council [1991] 1 AC 398 (HL)

138
Chapter 10 Other Remedies

(26.7.1990) and Yuen Kun Yeu v AG of Hong Kong [1988] AC 175

(PC) (10.6.1987).

10.2.4 On the other hand, through incremental development of

the law, there can be liability for economic loss caused by reliance
upon negligent misstatements, but only where the maker has
assumed or undertaken a responsibility towards the other who has
relied on the statement. A duty of care may arise in such
circumstances. See, for example, Hedley Byrne & Co Ltd v Heller
& Partners Ltd [1964] AC 465 (HL) (28.5.1963).

10.2.5 Duty of care: Whether there was a duty of care is

determined by whether the harm was reasonably foreseeable,
whether the relationship between the parties was sufficiently
“proximate” and whether the imposition of a duty of care was in
the circumstances “fair, just and reasonable”.

10.2.6 Issues of public policy may arise when a claimant alleges

that a public authority has been negligent in the performance of its
public functions or the exercise of its discretionary administrative
powers.

See Wade & Forsyth, Administrative Law, 11th edn, p 656.

“Although important questions remain to be answered, there is a
clear tendency, in England at least, against applying the ordinary
law of negligence to discretionary administrative decisions. The
decisions of licensing authorities, for example, may be held ultra
vires and quashed if proper attention is not given to the case. But
there is no indication that actions for damages will lie for any
resulting loss, merely because negligence can be shown. The
Court of Appeal (Strable v Dartford BC [1984] JPL 329 (CA)
(1.1.1984)) has held that there is no liability in tort for the negligent
handling of a planning application, even though this is plainly in
the ‘operational’ class.

139
Chapter 10 Other Remedies

10.2.7 The court would thus be slow in applying the ordinary

law of negligence to the performance of a public law function or
the exercise of an administrative discretion. New duties of care are
developed incrementally and by analogy with established
categories of liability rather than by the application of abstract
principle.

See Wade & Forsyth, Administrative Law, 11th edn, pp 649-650.

“It was not decided (in Murphy v Brentwood District Council
[1991] 1 AC 398 (HL) (26.7.1990)), however, whether negligence
in administering building regulations or byelaws might entail
liability in case of personal injury or impaired health or physical
damage to some different property … It indicates also the House
of Lords’ preference for developing the categories of negligence
‘incrementally by analogy with established categories’ rather than
by ‘massive extension of a prima facie duty of care’, and their
recognition of the merits of a pragmatic policy in an area where
general principles are elusive and indefinable”.

10.2.8 The court may, however, in the light of the circumstances

of a particular case, decide to effect an incremental extension of
the law once it is satisfied that it would be “fair, just and reasonable”
to impose a duty of care.

Case Example
See Pernett v Collins [1999] PNLR 77 (CA) (22.5.1998). A
passenger was injured when the plane crashed. The passenger
alleged that the crash was caused by defects that the statutory
inspector had carelessly failed to spot when inspecting the aircraft
prior to issuing its certificate of airworthiness. The Court of
Appeal held on a preliminary point of law that there was sufficient

140
Chapter 10 Other Remedies

proximity between the passenger and the statutory inspector to

justify on a “fair just or reasonable” basis imposing a duty of care
for personal injury. Liability for economic loss was distinguished
from liability for personal injury.

Breach of Statutory Duty

10.2.9 In general, a breach of statutory duty on the part of a
public authority does not, by itself, give rise to any private law
cause of action. However, it may give rise to a private law cause
of action if, upon construction of the statute, it can be shown that
the statutory duty was imposed for the protection of a limited class
of the public and that the legislature intended to confer on that
limited class a private right of action for breach of the duty.

10.2.10 It may not always be easy to ascertain whether there was

such legislative intention. Factors to consider include the purpose
of the statute, whether the loss is economic loss, whether there are
other sanctions under the statute, and whether there are detailed
provisions for the existence of detailed provisions for enforcement
of the relevant duty. See, for example, Digicel (St Lucia) Ltd (a
company registered under the laws of St Lucia) & Ors v Cable &
Wireless plc & Ors [2010] EWHC 774 (Ch) (15.4.2010) and Dah
Sing Insurance Services Ltd v Gill Gurbux Singh [2014] 1 HKLRD
691, CACV 255/2012 (23.12.2013).

10.2.11 Schemes of social welfare serving the general public

interest are unlikely to create private rights of action for breach of
statutory duty, particularly where discretion has to be exercised.
See, for example, So Yuk Kam v Liu, Chan & Lam (A Firm) & Anor,
unreported, DCCJ 1599/2012 (11.3.2014).

141
Chapter 10 Other Remedies

Misfeasance in Public Office

10.2.12 Misfeasance in public office: Public authorities or
officers may be liable in damages for malicious, deliberate or
injurious wrongdoing. There is thus a tort described as
“misfeasance in public office”.

10.2.13 The law relating to the tort of misfeasance in public office

has now been settled in the House of Lords’ decision in the Three
Rivers case (2003). The fundamental requirement is abuse of
power, bad faith or improper purpose. It could not be committed
negligently or inadvertently and the tort is one of misfeasance, not
nonfeasance.

Case Example
In Three Rivers District Council v the Governors and Company
of the Bank of England (No. 3) [2003] 2 AC 1 (22.3.2001), Lord
Steyn described the two varieties of the tort of misfeasance in
public office:
- the case of targeted malice by a public officer, i.e. conduct
specifically intended to injure a person;
- where a public officer acts knowing that he has no power to do
the act complained of and the act will probably injure the
plaintiff.
Both types involve bad faith on the part of the public officer.

In Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324,

CACV 13/2000 (30.5.2000), the Court of Appeal, having
considered the House of Lords’ decision in the Three Rivers (the
first hearing in 2000), held that a mental element of subjective
knowledge on the part of the public officer that his actions would
probably injure the plaintiff was required. There were three
variants of subjective knowledge, namely where the officer:

142
Chapter 10 Other Remedies

- specifically intended to injure the plaintiff; or

- knew that in the ordinary course, injury to the plaintiff would
follow, even though that was not his purpose; or
- was recklessly indifferent as to whether or not his actions
would cause the injury.

False Imprisonment
10.2.14 An action of false imprisonment lies at the suit of a person
unlawfully arrested, detained or detained for a longer period than
is justifiable or otherwise imprisoned. It is a tort of strict liability.
A police officer acting in obedience to a warrant is not liable to be
sued for false imprisonment. Various statutory provisions may
also authorise a police officer or other law enforcement agents to
make an arrest with or without a warrant. Further Article 5 of the
HKBOR guarantees a person’s right to liberty and security of
person.

Malicious Prosecution
10.2.15 In general there is no duty of care in negligence in relation
to the initiation or conduct of prosecutions. 12 The tort of malicious
prosecution provides a civil remedy for baseless and malicious
prosecution. The burden which has to be undertaken by the
plaintiff in a case of malicious prosecution is a heavy one.

Case Example
See Oh Jae-Hoon Eugene v Richdale [2005] 2 HKLRD 285,
CACV 105 & 162/2003 (21.10.2004). “There are 4 ingredients in
the tort of malicious prosecution. These are identified in [pp 823-

12
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335
(CA) (16.11.1994)

143
Chapter 10 Other Remedies

824] para 16-06 of Clerk & Lindsell on Torts (18th edn [2000]) in
a passage that was said by the House of Lords, correctly to state
the law: see Martin v Watson [1996] 1 AC 74 at p 80: ‘In action of
malicious prosecution the plaintiff must show first that he was
prosecuted by the defendant, that is to say, that the law was set in
motion against him on a criminal charge; secondly, that the
prosecution was determined in his favour; thirdly, that it was
without reasonable and probable cause; fourthly, that it was
malicious. The onus of proving every one of these is on the
plaintiff.’ This passage has also been referred to as representing the
law in the decision of the House of Lords in Gregory v Portsmouth
City Council [2000] 1 AC 419 (HL).” (per Ma CJHC (as he then
was) at para 12)

10.2.16 The majority of actions for malicious prosecution are

brought against the police, but a private person who sets the law in
motion may also incur liability 13 . In the UK, malicious
prosecution of civil proceedings is recognised as a viable tort at
common law 14 and there may be an implicit acceptance that it is
also a viable tort in Hong Kong (see Chua Grace Gonzales v
Sobrevilla Rhennie Boy Fernandez, unreported, DCCJ 3750/2015
(24.8.2017), per Tsui DJ at para 96).

10.3 Alternative dispute resolution

10.3.1 Alternative Dispute Resolution (“ADR”) refers to
processes for settling disputes by methods other than litigation.
The various types of ADR include negotiation, conciliation,
mediation, collaborative practice and arbitration. In general, the

13
Martin v Watson [1996] 1 AC 74 (HL) at 89
14
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd
[2013] UKPC 17, [2014] AC 366, and Willers v Joyce [2016] UKSC 43.

144
Chapter 10 Other Remedies

use of ADR promotes the early resolution of disputes. It provides

a more flexible and less adversarial means to resolve disputes as
compared with litigation. Parties are in better control of the
outcome and may incur less cost in the process. In Hong Kong,
mediation and arbitration are the more commonly used ADR
processes.

10.3.2 Mediation: Mediation is a structured process in which one

or more impartial individuals, without adjudicating a dispute or
any aspect of it, assist the parties in identifying the issues in dispute,
exploring options, communicating with one another and reaching
an agreement regarding the resolution of the dispute. Parties enter
into the mediation on a voluntary basis. The more common mode
of mediation used in Hong Kong is facilitative mediation, but
evaluative mediation is gaining interest amongst mediation
practitioners and users.

10.3.3 As part of the Civil Justice Reform, the Judiciary issued

Practice Direction 31 on Mediation, which first came into effect on
1 January 2010, to encourage parties to use mediation for early
settlement. Practice Direction 31 applies to all civil proceedings
in the Court of First Instance and the District Court which have
been begun by writ (except certain proceedings).

10.3.4 The Mediation Ordinance (Cap. 620) came into effect on

1 January 2013. The Mediation Ordinance aimed at providing a
legal framework for the conduct of mediation without hampering
the flexibility of the mediation process, and addressing some of the
issues on which the then existing law was uncertain, such as
confidentiality and the admissibility of mediation communications
in evidence.

10.3.5 Can mediation be used in the area of public law or judicial

review? It has been contended that mediation and judicial review

145
Chapter 10 Other Remedies

can and should co-exist 15. There has not been any case in Hong
Kong where courts expressly encourage parties to use or consider
using mediation to resolve judicial review challenges. Whereas
overseas experience (e.g. in the United Kingdom, Australia and
Canada) shows measures, by way of statutes, practice directions
and/or pre-action protocols, are adopted to encourage the use of
mediation to avoid judicial review cases where appropriate.

Case Example
See R (on the application of Cowl) v Plymouth City Council
[2002] 1 WLR 803 (14.12.2001), a Court of Appeal case
concerning the judicial review of the local authority’s decision to
close a residential care home. Lord Woolf CJ, giving the judgment
of the Court, challenged in forceful terms the prevailing view that
public law disputes were not suitable for resolution through ADR.

“The importance of this appeal is that it illustrates that, even in

disputes between public authorities and the members of the public
for whom they are responsible, insufficient attention is paid to the
paramount importance of avoiding litigation whenever this is
possible. Particularly in the case of these disputes both sides must
by now be acutely conscious of the contribution alternative dispute
resolution can make to resolving disputes in a manner which both
meets the needs of the parties and the public and saves time,
expense and stress … The courts should then make appropriate use
of their ample powers under the Civil Procedure Rules to ensure
that the parties try to resolve the dispute with the minimum
involvement of the courts” (at paras 1 and 2)

15
Varda Bondy and Margaret Doyle, Mediation in Judicial Review: A practical
handbook for lawyers, Public Law Project, Nuffield Foundation (2011), p.5.

146
Chapter 10 Other Remedies

“The courts should not permit, except for good reason, proceedings
for judicial review to proceed if a significant part of the issues
between the parties could be resolved outside the litigation
process.” (at para 14)

See Edmunds v Legal Services Agency for Northern Ireland

[2019] NIQB 50 (15.5.2019). The claimant seeks judicial review
against the Legal Services Agency’s decision to deny her legal aid
for mediation. The High Court of Justice in Northern Ireland stated
that it will “in appropriate cases make such directions as it
considers will facilitate the effective deployment of ADR” (at para
31). The court concluded that intra-litigation mediation is part and
parcel of the proceedings and such mediation is covered by legal
aid.

See the Australian case of Gardiner & Ors v Attorney-General

(No 4) [2021] VSC 290 (21.5.2021). The plaintiffs sought judicial
review of the decision of the Attorney-General for the State of
Victoria to enter into the Taungurung Recognition and Settlement
Agreement. The plaintiffs were senior citizens and suffered from
serious health issues and the proceedings had continued for more
than 2 years. Having considered the age and circumstances of the
plaintiffs and the evidence showing the harm it caused to the
plaintiffs by delay in bringing the proceeding to finality, the
Supreme Court of Victoria held that it would be unjust to further
delay the resolution of this proceeding and referred the proceeding
for judicial mediation.

10.3.6 Despite the above, the following categories of cases may

present problems or appear unsuitable for mediation:

(a) cases requiring declarations of the court;

(b) cases on alleged ultra vires issues;

147
Chapter 10 Other Remedies

(c) cases where points of law need to be decided;

(d) cases raising issues of public interest;
(e) cases where vindication of rights are at issue; and
(f) cases concerning the requirement of proper and lawful
decision making by public bodies 16.

10.3.7 Arbitration: Arbitration is a consensual process where

parties agree to submit their disputes to be resolved by an impartial
arbitral tribunal appointed by the parties. Arbitrations are
commonly used to resolve constructions and commercial disputes.
Parties in arbitration retain a high degree of autonomy in deciding
how their disputes will be resolved, including the choice of
arbitrators and arbitration procedures. Arbitration is also private
and confidential. Subject to certain limited exceptions,
information concerning both the arbitral proceedings and awards
generally would not be divulged to a third party. Arbitral awards
are final and binding; they may be set aside only on limited
grounds.

10.3.8 The Arbitration Ordinance (Cap. 609) (“AO”) provides

for the procedural framework of arbitration seated in Hong Kong.
It has come into operation since 2011 superseding the Arbitration
Ordinance (Cap. 341) and is based on the United Nations
Commission on International Trade Law UNCITRAL Model Law
on International Commercial Arbitration. Arbitral awards made in
Hong Kong can be enforced in over 160 Contracting States to the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York Convention), the Mainland China and
Macao.

16
Michael Supperstone QC, Daniel Stilitz and Clive Scheldon, ‘ADR and public
law’ [2006] Public Law, Summer: 299. See also Sophie Boyron, ‘The Rise of
Mediation in Administrative Law Disputes: Experiences from England, France
and Germany’ [2006] Public Law, Summer: 320.

148
Chapter 10 Other Remedies

10.3.9 In Hong Kong, there are no case authorities or specific

legislative provisions which provide a principled basis on which
arbitration can be used to resolve public law disputes as an
alternative to judicial review. However, arbitration is prescribed
under certain legislation as the statutory mechanism to resolve or
determine disputes with the government on the amount of
compensation to be awarded. Examples are section 12 of the
Prevention and Control of Disease Ordinance (Cap. 599) and
section 5 of the Public Bus Services Ordinance (Cap. 230).

10.3.10 Generally speaking, cases which may be unsuitable for

arbitration include:

(a) public law disputes pursuing remedies of (i) an order for

mandamus, prohibition or certiorari or (ii) injunction under
section 21J of the High Court Ordinance (Cap. 4) which
restrains a person from acting in any office in which he is not
entitled to act 17;
(b) disputes engaging civil rights or obligations 18;
(c) disputes involving criminal charges 19; and
(d) disputes raising issues of public interests or public policy20.

Case Example
In Fulham Football Club (1987) Ltd v Richards & Anor [2012]
Ch 333 (21.7.2011), the English Court of Appeal discussed the

17
Order 53 Rule 1 of the Rules of the High Court (Cap. 4A) provides for the
procedural exclusivity principle that public law disputes pursuing certain
remedies must be resolved by way of judicial review (see more in Chapter 2.1
of this book).
18
De Smith’s Judicial Review (Sweet & Maxwell 2018), at para 16-024.
19
Ibid.
20
Fulham Football Club (1987) Ltd v Richards & Anor [2012] Ch 333
(21.7.2011), at para 40.

149
Chapter 10 Other Remedies

notion of non-arbitrability and held (at para 40) that “it is necessary
to consider, in relation to the matters in dispute in each case,
whether they engage third party rights or represent an attempt to
delegate to arbitrators a matter of public interest which could not
be determined within the limitations of a private contractual
process.”

10.3.11 Arbitral awards in cases involving public law disputes are

unlikely to be susceptible to judicial review where the arbitration
is or can be characterised as consensual and the source of power of
the public body is contractual. In contrast, for arbitration in which
a particular body is endowed by statute with jurisdiction to
arbitrate certain types of disputes, it is arguable that the jurisdiction
of the statutory tribunal or arbitrators is compulsory and parties
may apply to the court to review the decision of the body.

Case Example
In Re Chan Yu Nam & Anor [2006] 1 HKC 392, HCAL 77/2005
(24.8.2005), the applicants sought to challenge the arbitral awards
made pursuant to the Eastern Harbour Crossing Ordinance
(“EHCO”) (now repealed) which permitted toll rise of the Eastern
Harbour Tunnel. It was held that the grant of franchise is one of
those commercial contracts the Government routinely enters into
with private corporations. The arbitration in relation to the tolls
charged under the franchise agreement pursuant to the EHCO is in
distinction to a particular body endowed by statute with
jurisdiction (possibly exclusive) to arbitrate certain types of
dispute (for example, wage disputes) between particular parties.
The application for leave for judicial review was dismissed.

In Pacific Century Insurance Company Limited v The Insurance

Claims Complaints Bureau [1999] 3 HKLRD 720, HCAL

150
Chapter 10 Other Remedies

8/1999 (17.11.1999), the applicant was dissatisfied with the

decision of the Complaints Board of the Insurance Claims
Complains Bureau (“Bureau”) on the compensation amount
payable to the injured and instituted judicial review proceedings
seeking an order of certiorari to quash such decision and an order
of mandamus remitting the matter to the Bureau for
reconsideration. It was held that the decision of the Bureau is
amenable to judicial review. By its incorporation into a regulatory
scheme underpinned by the Insurance Companies Ordinance, the
Bureau had at all material times carried out a public function of
conciliation and arbitration.

10.4 The Ombudsman

10.4.1 Since 2001 the Ombudsman (formerly the Commissioner
for Administrative Complaints) has, under the Ombudsman
Ordinance (Cap. 397) become a corporation sole and is given
statutory backing for a complete “de-link” from the Administration,
with the necessary powers for independent functioning.

10.4.2 The Ombudsman may investigate any action taken by or

on behalf of an organisation (essentially government departments
and statutory bodies such as the Hospital Authority and the
Securities and Futures Commission) appearing in Part I of
Schedule 1 in the exercise of its administrative functions in
consequence of maladministration (section 7(1)). “Action” is
defined to include “omission, recommendation or decision”
(section 2(1)). “Maladministration” is widely defined as
“inefficient, bad or improper administration”. Unreasonable
conduct, abuse of power, delay, discourtesy and lack of
consideration are included (section 2(1)).

151
Chapter 10 Other Remedies

10.4.3 The Ombudsman may also investigate any action taken

by an organisation appearing in Part II of Schedule 1 (e.g. Police,
ICAC) in the exercise of its administrative functions in relation to
the Code on Access to Information in consequence of
maladministration (section 7(1)).

10.4.4 The Ombudsman may decide to deal with a complaint by

mediation if the subject matter involves minor maladministration
(section 11B).

10.4.5 If the complaint relates to any action in respect of which

the complainant has judicial or tribunal remedies (other than
judicial review), the Ombudsman must not undertake or continue
an investigation unless he is satisfied that it would not be
reasonable to expect the complainant to resort to such remedies
(section 10(1)(e)).

10.4.6 The Ombudsman must not undertake or continue any

investigation relating to any matter specified in Schedule 2 which
includes the conduct of any legal proceedings, any action taken in
respect of appointments, discipline or other personnel matters, and
any action taken by the police or the ICAC in relation to the
investigation of any crime.

10.5 The Privacy Commissioner for Personal

Data
10.5.1 Like the Ombudsman, the Privacy Commissioner for
Personal Data (“PCPD”) is a corporation sole and given statutory
backing to enforce the provisions in the Personal Data (Privacy)
Ordinance (Cap. 486) (“PD(P)O”). The PCPD’s functions include
the monitoring and supervising compliance with those provisions
and investigating suspected breaches of the requirements under the

152
Chapter 10 Other Remedies

PD(P)O. He may approve and issue codes of practice providing

practical guidance for compliance with the statutory provisions.

10.5.2 The PD(P)O, enacted on 3 August 1995, is intended to

protect the privacy of individual in relation to personal data. It was
substantially amended in 2012 to tighten regulation of corporate
data users on the use of customers’ personal data in direct
marketing, to strengthen the PCPD’s enforcement powers, to
enable the PCPD to provide legal assistance to an aggrieved
individual seeking compensation for damages suffered and to
provide for new exemptions from the Data Protection Principles
(“DPPs”) or other requirements. Amendments were also made in
2021 to, among other matters, criminalise doxxing acts,
empowering the PCPD to carry out criminal investigations and
institute prosecutions, to demand the cessation of disclosure of
doxxing messages and to apply for injunctions, etc.

10.5.3 The Ordinance covers the following main parts:

(a) 6 DPPs;
(b) Access to and Correction of Personal Data;
(c) Matching Procedures and Transfers of Personal Data;
(d) Use or Provision of Personal Data in Direct Marketing;
(e) Inspections, complaints and Investigations;
(f) Exemptions;
(g) Functions and Powers of the Privacy Commissioner;
(h) Offences and Compensation;
(i) Matters relating to offences for disclosing personal data
without consent – Investigations and enforcement powers.

A summary of the 6 DPPs (Schedule I of PD(P)O)

DPP1: personal data shall be collected for a purpose directly
related to a function and activity of the data user; lawful and fair

153
Chapter 10 Other Remedies

collection of adequate data; data subjects shall be informed of the

purpose for which the data is collected and to be used.

DPP2: all practicable steps shall be taken to ensure the accuracy

of personal data; data shall be deleted upon fulfillment of the
purpose for which the data is or is to be used.

DPP3: unless the data subject has given prior consent, personal
data shall be used for the purpose for which the data was originally
collected or a directly related purpose.

DPP4: all practicable steps shall be taken to ensure that personal

data are protected against unauthorised or accidental access,
processing or erasure.

DPP5: formulates and provides policies and practices in relation

to personal data.

DPP6: individuals have rights of access to and correction of their

personal data. Data users should comply with data access or data
correction request within the time limit, unless reasons for
rejection prescribed in the Ordinance are applicable.

10.5.4 Offences: Contravention of a DPP does not by itself

constitute an offence. However, contravention of certain
provisions under the PD(P)O is an offence (for example,
contravention of an enforcement notice or the direct marketing
provisions, failure to erase personal data that is no longer required
for the purpose for which it is used, offences relating to doxxing,
and contravention of a cessation notice, etc.) (Parts 9 and 9A).

10.5.5 Compensation: An individual who suffers damage

(including injury to feelings) by reason of a contravention of a

154
Chapter 10 Other Remedies

requirement under the PD(P)O by a data user relating to personal

data of that individual is entitled to compensation. The PD(P)O
provides for due diligence defence (section 66).

10.5.6 Exemptions: The PD(P)O provides for various

exemptions from specified DPPs or other provisions. The
exemptions include performance of judicial functions (section
51A), domestic purposes (section 52), employment–staff planning
(section 53), relevant process (section 55), personal references
(section 56), security (section 57), crime or malpractice (section
58), health (section 59), care and guardianship of minors (section
59A), legal professional privilege (section 60), self-incrimination
(section 60A), legal proceedings (section 60B), news (section 61),
statistics and research (section 62), human embryos (section 63A),
due diligence exercise (section 63B), emergency situations
(section 63C) and transfer of records to Government Records
Service (section 63D).

10.6 Administrative Appeals Board and

other Tribunal and Appeals Board
10.6.1 The Administrative Appeals Board (“AAB”) is an
independent statutory body established in July 1994 under the
AAB Ordinance (Cap. 442) (“AABO”). The AAB will hear and
determine appeals against certain administrative decisions which
fall under its jurisdiction and as stipulated in the Schedule of the
AABO, for example, certain decisions by the Privacy
Commissioner for Personal Data and the Commissioner of
Customs and Excise under the Duties Commodities Ordinance
(Cap. 109).

10.6.2 Most AAB hearings are open to the public save for
special circumstances when applications can be made by either
party with justifications for anonymity or private hearing which is

155
Chapter 10 Other Remedies

subject to approval by the presiding chairman. The Board has the

power to confirm, revoke or vary the decisions appealed from. It
has informal procedures and rules of evidence do not apply. The
Board will give reasons in writing for their decisions which will be
served on the parties to the appeal (section 25 of AABO).

10.6.3 Appeals from decisions of the AAB go to the Court of

Appeal and sometimes judicial review may be available.

10.6.4 There are also other tribunals that are established for
specific purposes. For example, the Immigration Tribunal;
Municipal Services Appeals Board; and various disciplinary
tribunals and appeal boards for professionals, such as the Solicitors
Disciplinary Tribunal and Electricity Ordinance Disciplinary
Tribunal Panel. These tribunals and appeal boards are independent
statutory bodies established to hear specific appeals as stipulated
in the relevant ordinances.

10.7 Inquiries
10.7.1 Statutory or non-statutory inquiries may be conducted in
relation to any particular matter or incident.

10.7.2 The Administration may appoint a non-statutory,

administrative committee or inquiry to look into any particular
matter or incident. Such committee or inquiry does not have power
to summon witnesses or order the production of documents. Nor
does it enjoy any immunity or protection against legal liabilities.

Previous non-statutory inquiries include:

 The Penny Stock Inquiry (July 2002)
 The SARS Inquiry (October 2003)
 The Harbour Fest Inquiry (May 2004)

156
Chapter 10 Other Remedies

 The Sai Wan Ho Development Inquiry (November 2005)

10.7.3 For statutory inquiries, the Chief Executive-in-Council

may under the Commissions of Inquiry Ordinance (Cap. 86)
appoint one or more Commissioners to inquire into the conduct of
any public body, the conduct of any officer or into any matter
which is in his opinion of public importance. The Commission
enjoys statutory powers of investigation, including the power to
summon any person to attend, to give evidence or to produce any
document. Every inquiry held by a Commission shall be deemed
to be a judicial proceeding. There are statutory provisions to
protect the Commissioner and witnesses from suit or other
proceedings for acts done or evidence given in the course of
inquiries.

Statutory inquiries include:

 The Garley Building Fire Inquiry (December 1996)
 The New Airport Opening Inquiry (July 1998)
 The Allegations relating to the Hong Kong Institute of
Education Inquiry (February 2007)
 The Collision of Vessels near Lamma Island Inquiry (October
2012)
 Excess Lead Found in Drink Water Inquiry (August 2015)
 Diaphragm Wall and Platform Slab Construction Works at the
Hung-Hom Station Extension under the Shatin to Central
Link Project of the MTRC Inquiry (July 2018)

10.7.4 The LegCo may, in exercise of its powers under the

Legislative Council (Powers and Privileges) Ordinance (Cap. 382),
conduct an inquiry into any particular matter or incident. Normally,
a committee or sub-committee would be set up and authorised by

157
Chapter 10 Other Remedies

resolution of the LegCo to conduct the inquiry. The committee or

sub-committee may, in exercise of the powers under the Ordinance,
order any person to attend before it and to give evidence or to
produce any document relevant to the subject matter of the inquiry.
Every person lawfully ordered to attend to give evidence or to
produce any document is entitled to the same right or privilege as
before a court of law (e.g. legal professional privilege and public
interest immunity).

LegCo inquiries include:

 Inquiry into the building problems of Public Housing Units
(January 2003)
 Inquiry into the handling of SARS outbreak by the
Government and the Hospital Authority (July 2004)
 Inquiry into matters relating to the post-service work of Mr
Leung Chin-man (December 2010)
 Inquiry into the issues arising from Lehman Brothers-related
minibonds and structured financial products (Jun 2012)
 Study Mr Leung Chun-ying’s involvement as a member of the
jury in the West Kowloon Reclamation Concept Plan
Competition and related issues (June 2012)
 Inquiry into matters about the Agreement between Mr Leung
Chun-ying and the Australian Firm UGL Limited (set up in
November 2016)

10.8 Remedies under the Hong Kong Bill of

Rights Ordinance

Hong Kong Bill of Rights Ordinance (Cap. 383)

6. Remedies for contravention of Bill of Rights

158
Chapter 10 Other Remedies

(1) A court or tribunal –

(a) in proceedings within its jurisdiction in an action for
breach of this Ordinance; and
(b) in other proceedings within its jurisdiction in which a
violation or threatened violation of the Bill of Rights is relevant,
may grant such remedy or relief, or make such order, in respect of
such a breach, violation or threatened violation as it has power to
grant or make in those proceedings and as it considers appropriate
and just in the circumstances.

8. Hong Kong Bill of Rights

Article 5: Liberty and security of person
(5) Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.

Article 11: Rights of persons charged with or convicted of

criminal offence

(5) When a person has by a final decision been convicted of

a criminal offence and when subsequently his conviction has been
reversed or he has been pardoned on the ground that a new or
newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as
a result of such conviction shall be compensated according to law,
unless it is proved that the non-disclosure of the unknown fact in
time is wholly or partly attributable to him.

10.8.1 The United Nations Human Rights Committee in its

General Comment No. 32, observed that the guarantee under
Article 14(6) of the ICCPR (implemented by Article 11(5) of the
HKBOR) does not apply if it is proved that the non-disclosure of
such a material fact in good time is wholly or partly attributable to
the accused. Furthermore, no compensation is due if the

159
Chapter 10 Other Remedies

conviction is set aside upon appeal, i.e. before the judgment

becomes final, or by a pardon that is humanitarian or discretionary
in nature or motivated by considerations of equity, not implying
that there has been a miscarriage of justice.

10.9 Ex gratia compensation

10.9.1 Ex gratia compensation is sometimes paid to persons who
are the victims of miscarriage of justice to compensate them for
resulting losses, e.g. loss of liberty, loss of earnings, etc.
Compensation may also be payable where a person has suffered
loss in connection with the administration of justice if the loss was
caused by a serious default or misconduct of the police or other
public authority. Ex gratia compensation may be refused if there
is serious doubt as to the claimant’s conduct.

160
Annex I – Judicial Review Flowcharts

The Stages of Judicial Review

Grounds for application first arose

Court may seek short

Promptly and in any event within 3 months response from putative
respondent / interested
party and/or direct an
Applicant applies for leave on an ex parte basis oral hearing

Leave granted
Leave refused (after hearing or on papers only)

Applicant may appeal to the Court Respondent / interested party may

of Appeal within 14 days apply to set aside leave

Dismissed Allowed and Dismissed Allowed

leave granted

Within 14 days

Applicant
Applicant to
to issue
issue formal
formal application
application by
by Originating
Originating Summons,
Summons,
and
and serve
serve the
the same
same on Respondent
onWithin 14 days// interested
Respondent interested party
party with
with
supporting
ti affidavit
ffid it and the order
d th d granting ti lleave

Respondent to file affidavit in reply Applicant

may seek an
order for
Parties to fix date for substantive hearing interim relief

7 clear working days 3 clear working days

before hearing before hearing

Applicant and interested party Respondent and interested

supporting the application to file hearing party opposing application to
bundles and skeleton arguments file skeleton arguments

Substantive hearing: JR dismissed or allowed

Within 28 days

Appeal

161
Annex I – Judicial Review Flowcharts

Is judicial review available?

(decision, act or omission)
Are there exceptional
Was there a decision, act or No No
circumstances for grant of
omission alleged to be unlawful?
declaratory relief?

Yes
Yes
No
Was it made by a public body?

Yes

Did the decision, act or omission No

affect public law rights?

Yes

Does the applicant have locus standi No

to apply for judicial review?

Yes
Are there public law grounds for
review?
(a) Illegality; No
(b) Irrationality;
(c) Procedural impropriety.

Yes
Yes
Has judicial review been excluded?

No

Has the applicant exhausted No Are there exceptional No

alternative remedies? circumstances?

Yes Yes

Application can be made Application inappropriate

162
Annex II – Questions to Ask Yourself as a Decision-maker

17 Questions to Ask Yourself as a Decision-

Maker

FIRST STEP – PREPARE:

Thinking through the bases for the use of power and decision

1. Have you got the power to act as intended? Are you

acting within the power granted by the law?

 You (whether under delegated authority or otherwise) must

have the relevant power to act, or otherwise your actions
will be ultra vires (i.e. beyond your legal powers) and
unlawful.

 Your source of power, unless derived from the common law

(which is rare in judicial review cases), will usually be
found in (a) primary legislation (an Ordinance), or (b)
subsidiary legislation (for example: rules, regulations,
orders, etc. made under an Ordinance).

2. Are you merely adopting a particular statutory

interpretation which happens to suit what you want to
do?

 If the administrative power is sourced from legislation, you

may expect the court, if called upon to scrutinise its
meaning, to apply formal “rules of statutory construction”
to determine what the true statutory intent is.

163
Annex II – Questions to Ask Yourself as a Decision-maker

 Usually words in a statute are given their plain meaning,

you therefore will need to look at the words used to work
out what can or cannot be done; you will also need to
consider the general purpose of the legislation with
reference, when appropriate, to the legislative history.

3. Are you exercising the power for the purpose for which
it was given?

 Even if you have the power to act, you must use the power
for a lawful purpose.

 Your action will be ultra vires and an abuse of power if you

use the power to achieve a purpose that the power was not
created to achieve.

4. Are you acting for the right reasons? Have you taken
into account all relevant information and excluded
irrelevant considerations?

 In order for your decision to be lawful, you must not:

(a) exercise your discretion on the basis of irrelevant

considerations; or

(b) fail to take into account considerations that you are

under a duty to consider.

 Generally, anything not identified expressly or impliedly by

the power-giving legislation or relevant to the particular
circumstances in which a power is exercised may be

164
Annex II – Questions to Ask Yourself as a Decision-maker

irrelevant. A decision may be set aside if it can be shown

that the influence of an irrelevant factor was material.

 You also need to be sure that the facts on which you base
your decision are accurate.

5. Is there an applicable policy relevant to the present

situation? If yes, is your decision in line with the
policy; if not, is there a good basis for departing from
the policy?

 You need to make sure that the decision is based on a proper

application of the established policy read in the relevant
contexts and with common sense.

 It may be prudent to give reasons if there is a deviation from

the established policy.

6. Have you led anyone to suppose that you will be

acting differently from what is now intended?

 Have you created a “legitimate expectation”, giving rise to

the need for fairness, by making an express or implied (e.g.
from past practice) promise or representation that a person
or class of persons will:

(a) receive a particular benefit or continue to receive a

particular or not substantially varied benefit; and

165
Annex II – Questions to Ask Yourself as a Decision-maker

(b) be entitled to a hearing or other procedural safeguards

before any decision is taken which may affect their
rights or interests?

 Where a legitimate expectation has arisen, it must be taken

into account in your decision making process, and generally
speaking a public authority may only break its promise if an
overriding public interest so requires it.

SECOND STEP – INVESTIGATE:

Conducting investigations and considering how to make the
decision

7. Have you followed the procedure, if any, provided for

by the law which you are required to follow before
making the decision?

 The legislation may have imposed express restrictions or

requirements that the decision-maker “shall” or “shall not”
do.

 Failure to satisfy statutory requirements may make the

decision unlawful.

8. Are you acting properly yet timely?

 While you should go through these questions in your

decision-making process, care should be taken to ensure
that your decision is reached within any prescribed time
limit or otherwise in a reasonably timely manner.

166
Annex II – Questions to Ask Yourself as a Decision-maker

 Inordinate delay in reaching a particular decision may be

considered as an abuse and challenged in court.

9. Will you hear and consider the point of view of people

likely to be affected by the decision? Have they been
put in the picture sufficiently so that they have a fair
opportunity to make representations?

 Sometimes, permitting written representations may suffice

for a fair and adequate “hearing” in order to afford those
persons adversely affected an opportunity to be heard. At
other times, an oral hearing may be necessary.

 Such an opportunity may not be meaningful unless you

provide those persons with sufficient information so as to
enable them to make focused and meaningful
representations.

10. Have you allowed in your timetable sufficient time for

consultation and representations?

 Where consultation is required by law or is undertaken

anyway, it has to be conducted properly to satisfy the
requirement for procedural fairness.

11. Have you made up your mind in advance or given that

impression, e.g. have you merely blindly followed
government policy without considering the
circumstances of the particular case? If you propose
to follow a general policy in a particular case should

167
Annex II – Questions to Ask Yourself as a Decision-maker

you make it clear when communicating your decision

that you have carefully considered the individual
application to see whether it merited an exception
being made?

 Procedural fairness demands that decision-makers do not

“fetter” their discretion by adopting a policy which in effect
has closed the decision-maker’s mind to the possibility that
a case might prove to be exceptional or that the policy itself
should be changed.

 Put it another way, have you considered exercising residual

discretion to give favourable consideration in an individual
case even if it does not fall within any of your established
policies? Policy may and should be departed from in
suitable cases.

 In cases of reconsideration, have you carefully considered

whether there is new information or change of
circumstances warranting a different decision?

 A pre-determined policy on how a discretion will usually

be exercised must not become so rigid that it prevents a
decision-maker from responding to the merits of each case.
However, you may have a pre-disposition because “keeping
an open mind does not mean an empty mind”.

 Public announcements, official guidelines and press

statements, for example, must be carefully drafted to ensure
the impression of a fetter or a closed mind is not mistakenly
introduced.

168
Annex II – Questions to Ask Yourself as a Decision-maker

12. Are there any grounds for thinking you might not be
acting fairly?

 What fairness requires depends on the context and the

circumstances of the particular case.

 Particular caution should be given in ensuring fairness in

cases where fundamental human rights may be involved.

13. Do you or does anyone involved in making the

decision have any conflicting interest which might
lead someone to suppose that there is bias?

 The rule against bias ensures that the decision-making

process is not a “sham” because the decision-maker’s mind
was always closed to the representations of particular
parties.

 It does not just deal with actual bias, but the appearance of
bias as well: “… justice must not only be done, but … be
seen to be done.”

 For example, decision-makers should not take part in

deciding appeals against their own decisions unless that is
authorised by statute.

 Apparent bias exists when the court considers that, in all the
circumstances of a case, there appeared to be a “real danger
of bias” to an informed and fair-minded observer.

169
Annex II – Questions to Ask Yourself as a Decision-maker

THIRD STEP – DECIDE:

Making the decision

14. Have you got sufficient and correct reasons for your
decision or action in case you are requested to explain
it?

 Save in exceptional circumstances, you should be prepared

to provide reasons for your decision as appropriate.

 Recording reasons:

(a) encourages careful decision-making;

(b) shows that you directed your mind to the relevant

issues and followed the principles of good
administration; and

(c) avoids triggering a presumption that a decision was

“irrational”.

 Your reasons must be at least intelligible and address the

substance of the issues involved by:

(a) showing that the decision is within the scope of the

relevant power or duty and hence lawful;

(b) setting out the material findings of fact;

(c) showing that all relevant matters have been considered

and that no irrelevant ones have been taken into account;
and

170
Annex II – Questions to Ask Yourself as a Decision-maker

(d) noting that representations or consultation responses (if

any) have been properly considered, addressed and
taken into account.

 In the absence of contemporaneous records, subsequent

reasons for the impugned decision may be regarded as ex
post facto rationalisation (i.e. justifying the decision
retrospectively) and may not be accepted in court.

15. Does the decision interfere with any fundamental

right? If yes, does it pass the proportionality test?

 Certain rights and freedoms are absolute in nature and

cannot be restricted on any grounds, such as the right not to
be subjected to torture or cruel, inhuman or degrading
treatment or punishment. No question of proportionality
arises in the case of a restriction of absolute right.

 If the decision restricts a right that is not absolute, you may

consider the following questions apart from ensuring that it
is otherwise lawful:

(a) Does the restriction pursue a legitimate aim?

(b) Is the restriction rationally connected to achieving

such aim?

(c) Is the restriction no more than necessary to achieve

such aim?

(d) Has a reasonable balance been struck between the

societal benefits and the encroachment into the rights
of the individual, and whether it would result in an

171
Annex II – Questions to Ask Yourself as a Decision-maker

unacceptably harsh burden upon the affected

individual?

16. Do you propose to act in a way which a court may

regard as abusing your power or generally so
unreasonable that it is likely to find against you?

 You must not act in an “unreasonable” way either. You will

be so regarded if your decision is beyond the range of
responses open to a reasonable decision-maker.

 The courts will subject the reasonableness of the decision-

maker’s decision to more rigorous examination where a
constitutional right is allegedly encroached.

17. Do you still have serious doubts on any of these

questions before committing to a particular decision?

 Seek legal advice from the Department of Justice.

172
Annex III – Glossary

Glossary

ENGLISH CHINESE
Acting in Excess of Power 超越其權利範圍行事
Acting Under Dictation 受主使而行事
Affidavit 誓章
Affirmation 非宗教式誓詞
Alternative Dispute Resolution 爭議解決替代方式
Appeal 上訴
Appellant 上訴人
Applicant 申請人
Bad Faith 不真誠
Basic Law 基本法
Bias (actual / apparent / 偏頗 (實質 / 表面 / 推定)
presumed)
Breach of Statutory Duty 違反法定責任
Carltona Principle 放權原則
Certiorari 移審令
Convention against Torture and 禁止酷刑和其他殘忍、不
Other Cruel, Inhuman or 人道或有辱人格的待遇或
Degrading Treatment or 處罰公約
Punishment
Costs 訟費
Court of Appeal 上訴法庭
Court of Final Appeal 終審法院
Court of First Instance 原訟法庭
Cross-examination 盤問
Damages 損害賠償
Decision-maker 決策者
Declaration 宣告
Delegation 權力轉授
Deportation Order 遞解離境令
Discovery 文件披露

173
Annex III – Glossary

ENGLISH CHINESE
Discretion 酌情權
Discrimination 歧視
Duty of Candour 坦誠責任
Duty to Give Reasons 提供理由的責任
Environmental Impact 環境影響評估
Assessment
Equal Opportunities 平等機會
Equality 平等
Error of Law 法律上的錯誤
Ex Gratia Compensation 特惠補償
False Imprisonment 非法禁錮
Fettering Discretion 酌情權受到約束
Fundamental Rights and 基本權利和自由
Freedom
Good Governance 良好管治
Government Land 政府土地
Hong Kong Bill of Rights 香港人權法案(條例)
(Ordinance)
Human Rights 人權
Illegal Immigrants 非法入境者
Illegality 不合法
Immigration Control 入境管制
Impartiality 公正
Improper Purpose 不當的目的
Initial Response 初步回應書
Injunction 禁制令
Inordinate Delay 過份拖延
Inquir(ies) 調查研訊
Interested Part(ies) 有利害關係的一(各)方
Interim Relief 中期濟助
International Covenant on Civil 公民權利和政治權利國際
and Political Rights 公約

174
Annex III – Glossary

ENGLISH CHINESE
Irrationality 不合理
(Ir)relevancy (不)相關
(Ir)relevant Considerations (不)相關因素
Judicial Review 司法覆核
Justiciable 可審理
Lease Conditions 租用條件
Leave (to apply for Judicial 許可(提出司法覆核的)
Review)
Legitimate Aim 合法目的
Legitimate Expectation 合理期望
Mandamus 履行義務令
Margin of Appreciation 酌情衡量的空間
Material Error of Facts 重大的事實錯誤
Material Non-disclosure of 未有披露關鍵的材料
Facts
Mediation 調解
Misfeasance in Public Office 公職人員濫用職權
Natural Justice 自然公義
Negligence 疏忽
Non-permanent Resident 非永久居民
Non-refoulement 免遣返保護
Non-resident 非居民
Ouster Clause 排除司法覆核的條款
Outline Zoning Plan 分區計畫大綱圖
Over-rigid Policy 僵化政策
Permanent Resident 永久居民
Planning 規劃
Prerogative Power 官方特權
Presumption against 不准在海港內進行填海的
Reclamation 推定
Primary Legislation 主體法例
Procedural Impropriety 程序不當

175
Annex III – Glossary

ENGLISH CHINESE
Prohibition 禁止令
Proportionality 相稱原則
Putative Respondent 指認答辯人
Realistic Prospect of Success 實質的成功機會
Reasonably Arguable 可合理爭議
Removal Order 遣送離境令
Respondent 答辯人
Right of Abode 居留權
Right to Fair Hearing 獲得公平審訊的權利
Rule against Bias 針對偏頗的原則
Subsidiary Legislation 附屬法例
Substantive Application 實質申請
Technical Memorandum 技術備忘錄
The Ombudsman 申訴專員
Ultra Vires 越權
Uncertainty 不明確
Unconstitutional 不合憲
Uncontested Proceedings 無爭訟訴訟程序
United Nations High 聯合國難民公署
Commissioner for Refugees
Wednesbury Unreasonableness 韋恩斯伯里式不合理

176