Administrative Law and Judicial Review

By
William Tong

1
Contents

1. Hong Kong Legal System

2. Government of the Hong Kong Special

Administrative Region

3. Administrative Law

4. Non-Judicial Controls on Government

5. Judicial Review

6. Legal Basis of Judicial Review

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7. The Limits of Judicial Review

8. Remedies

9. Grounds of Judicial Review

10. Human Rights and Judicial Review

11. Application for Judicial Review

12. Issuing a Claim for Judicial Review: Checklist

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What is a legal system?

It is a system within a defined geographical area where

law is created and enforced. It consists of:-

(i) a collection of laws;

(ii) process of creating, interpreting, applying and

enforcing laws;

(iii) institution involved in such process (e.g. the

legislature, courts and police force);

(iv) personnel involved in the process (e.g. the legislators,

judges and lawyers).

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There are two main types of legal systems in the world:
civil law and common law legal systems.

Civil law legal system emphasizes the importance of

statute law (i.e. law made by the legislature). Normally,
it has a written constitution. It inclines to adopt an
inquisitorial legal method (in which the judges will play
a more active role) in the process of a trial. Most
European countries such as France, Germany, Italy,
etc. belong to this legal system.

Common law system emphasizes the importance of

case law (i.e. law made by judges). Normally, it does
not have a written constitution. It inclines to adopt an
adversarial legal method (in which the judges will play
a less active role) in the process of a trial. This system
is used in most commonwealth countries such as
England, Australia, Canada, etc. Hong Kong also
belongs to this system.
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What is law?

“The written and unwritten body of rules largely

derived from custom and formal enactment which are
recognized as binding among those persons who
constitute a community or state, so that they will be
imposed upon and enforced among those persons by
appropriate sanctions.” (as per L.B. Curzon)

Law governs most aspects of life in a community.

Different aspects of law aim to maintain a balance

between different competing interests e.g. employment
law - employers v employees; tenancy law - landlords v
tenants; insurance law – insurers v insureds;
constitutional law & administrative law: state v people.
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Rule of law: everyone in the society has to obey the
law. No one is supposed to be above the law.

In Hong Kong, the concept of separation of powers is

adopted. The judiciary, which is independent of the
executive branch, is responsible for adjudicating civil
and criminal disputes but will not take an active role in
the administration of justice. The Department of
Justice, being part of the executive branch, has the
power to prosecute any person but no power to impose
any sentence. The Legislative Council, being a law-
making body, has no power to enforce the law.

The main purposes of law are to maintain order,

achieve justice and promote the common good in the
society.
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Criminal Law

It concerns the offences against and are punishable by

the state (in the context of Hong Kong, i.e. the
government of the HKSAR).

Title of the proceedings to be used: HKSAR v

Defendant (The accused).

The HKSAR is to be represented by the Prosecution

Division of the Department of Justice. The burden of
proof normally rests with the prosecution unless it is
shifted by an ordinance.

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The standard of proof required is that of a proof
beyond reasonable doubt. Therefore, in a criminal
case, any benefit of doubt should be given to the
defendant.

The main object is to punish convicted offenders by

means of a fine, imprisonment or some other forms of
punishment such as community service order,
probation order, etc.

Examples: murder, theft, deception.

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Civil Law

It regulates the rights and obligations of persons

towards each other e.g. protects private rights;
resolves disputes between private citizens.

Title of the proceedings to be used: Plaintiff v

Defendant.

Both the plaintiff and defendant have to prove their

case.

The standard of proof required is that of a proof on a

balance of probabilities. Therefore, if the plaintiff’s
case is proved to be more reliable and believable, the
court may give judgment in his favour.
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The main object is to win a judgment in the form of
money called damages by ordering one party to pay
compensation to another or in the form of injunction,
specific performance, etc.

Examples: law of contract, law of tort, law of agency,

insurance law, employment law, etc.

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Public Law - It concerns with the conduct of
government and the relations between government and
private persons.

Examples: constitutional law, criminal law,

administrative law.

Private law – It concerns with the legal relationship

between private individuals, comprises the rules
governing relations between private persons or groups
of persons.

Examples: law of contract, law of tort, company law,

law of trust, law of property, law of succession, etc.

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The Development of Hong Kong’s Legal System

From 1st July 1997, Hong Kong became a Special

Administrative Region of the People's Republic of
China.

The HKSAR was established in accordance with the

provisions of Article 31 of the Constitution of the
People's Republic of China.

A high degree of autonomy is promised.

The concept of "one country, two systems" is adopted.

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The Sources of Law in Hong Kong

PRC Sources

(a) Basic Law

The National People's Congress of the People’s Republic of

China enacted the Basic Law of the HKSAR in 1990.

The Basic Law is the constitutional document of the HKSAR

and the blueprint for Hong Kong’s future development.

It prescribes the systems to be practised in the HKSAR in

order to ensure the implementation of the basic policies of
the People's Republic of China regarding Hong Kong.

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Article 5
The socialist system and policies shall not be practised
in the HKSAR, and the previous capitalist system and
way of life shall remain unchanged for 50 years.

Article 8
The laws previously in force in Hong Kong, that is, the
common law, rules of equity, ordinances, subordinate
legislation and customary law shall be maintained.

Exceptions: (a) any previous laws that contravene the

Basic Law; and (b) any previous laws that are amended
by the legislature of the HKSAR.

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Article 18
The laws in force in the HKSAR shall be:

(a) The Basic Law of the HKSAR

(b) The laws previously in force in Hong Kong as

provided for in Article 8 of this Law, and

(c) The laws enacted by the legislature of the HKSAR.

Article 19
The HKSAR shall be vested with independent judicial
power, including that of final adjudication.

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(b) National Laws of PRC applicable to HK

Article 18 Basic Law

National laws shall not be applied in the HKSAR except
for those listed in Annex III:
(i) Resolution on the Capital, Calendar, National Anthem
and National Flag;國都、紀年、國歌、國旗的決議
(ii) Resolution on the National Day;國慶日的決議
(iii) Order on the National Emblem;國徽的命令
(iv) Declaration on the Territorial Sea;關於領海的聲明
(v) Nationality Law;國籍法
(vi) Regulations Concerning Diplomatic Privileges and
Immunities.外交特權與豁免條例

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UK Sources – The Common Law and Rules of Equity

Common law has its origin in UK. Historically, at the

time of Norman Conquest in 1066, different localities in
England had different local customary rules. The King
at that time asked the judges to develop unified rules
of law which applied throughout the kingdom. These
rules were later developed into a system of common
law and administered by the common law courts.

However, the procedures of common law were

unsatisfactory in that the plaintiff might not obtain
redress for grievances because of some minor
procedural. Moreover, in some aspects, common law
was too rigid and inflexible.

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Later the King asked the Chancellor to deal with the
grievances and the rules on which the Chancellor
decided the case were based on justice and fairness.
The principles of equity were later developed and
administered by the Court of Chancery.

Reports of judgments handed down by judges have,

since at least the 15th century, established in detail the
legal principles regulating the relationship between
state and citizen, and between citizen and citizen.

These 2 different sets of rules were administered in 2

different courts in UK until the 19th century.

19
There are a number of differences between common
law and equity:

(i) They have different origins. Common law was

developed by the common law courts while equity was
developed by the Court of Chancery.

(ii) Common law remedies (e.g. damages) are granted

as of right whereas equitable remedies (e.g. specific
performance) are discretionary.

(iii) Common law is a complete system of law while

equity is only supplementary.

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(iv) The time-limits for common law rights are laid
down in the Limitation Ordinance while equitable rights
must be applied for promptly.

(v) When there is a conflict between common law and

equity, equity will prevail.

Judicial precedent
There are now some hundreds of thousands of
reported cases in common law jurisdictions which
comprise the common law. Because it is not written by
the legislature but by judges, it is also referred to as
"unwritten" law. Judges seek these principles out
when trying a case and apply the precedents to the
facts to come up with a judgment.

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Hong Kong Sources

Local Legislation: the Legislative Council in the

HKSAR is the most important law making body in Hong
Kong. The laws passed by it are called Ordinances.
Ordinances govern most aspects of life in Hong Kong.

Subsidiary Legislation: the Hong Kong Legislature may

delegate law-making powers to other bodies, e.g. the
MTR is empowered to make the MTR By-Laws under
the Mass Transit Railway Ordinance. The laws made by
those bodies are called rules, regulations, by-laws, etc.
and their main functions are to supplement ordinances.

Decisions of the Hong Kong Courts: decisions made

by superior courts are binding on inferior courts in
Hong Kong. 22
Traditional Sources: Customary Chinese Law

Chinese law and custom is to be found in the Codes of

the Qing Dynasty as supplemented by customary rules.

Chinese customary law has been applied in relations to

land in the New Territories e.g. under New Territories
Ordinance (Cap 97), family law and succession, etc.

23
THE HONG KONG LEGAL MACHINE

The Judiciary

It is responsible for the administration of justice in

Hong Kong.

The Chief Justice of the Court of Final Appeal is the

head of the Judiciary.

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The Courts of Law in Hong Kong

The Court of Final Appeal

It is the highest appellate court in Hong Kong. It only

has appellate jurisdiction but no original jurisdiction.

It normally hears appeals on civil and criminal matters

from the Court of Appeal. However, in some
circumstances, the Court of Final Appeal may hear
appeals from the Court of First Instance directly.

It has unlimited civil and criminal jurisdiction but no

jurisdiction over acts of state such as defence and
foreign affairs.

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In civil matters: (a) monetary claims involved must be
not less than HK$1 million or (b) matters of public
importance.

In criminal matters: normally more serious offences

heard in the Court of First Instance will be appealed to
the Court of Final Appeal.

It comprises five judges –

- the Chief Justice,
- three permanent judges, and
- one non-permanent Hong Kong judge or one judge
from another common law jurisdiction.

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The High Court

It consists of the Court of Appeal and the Court of First

Instance.

The Court of Appeal of the High Court

It hears appeals on civil and/or criminal matters from

the Court of First Instance, District Court and Lands
Tribunal.

It has unlimited civil and criminal jurisdiction.

It normally comprises three judges.

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The Court of First Instance of the High Court

It has unlimited jurisdiction in both civil and criminal

matters.

It has both original and appellate jurisdiction.

It exercises civil jurisdiction (normally by one judge

without jury) in disputes relating to breach of contract,
tort, bankruptcy, company winding-up, intellectual
property, probate and mental health matters, etc.

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Most serious criminal offences, such as murder,
manslaughter, rape, armed robbery, trafficking in large
quantities of dangerous drugs and complex
commercial frauds are tried by a judge of the Court of
First Instance together with jury.

It hears appeals from the Magistrates’ Courts and other

tribunals (except the Lands Tribunal).

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District Court

Civil jurisdiction
It hears monetary claims up to $1,000,000 or,

Where the claims are for recovery of land, the annual

rent or ratable value does not exceed $240,000.

Criminal jurisdiction
It tries more serious cases, with the exception of
murder, manslaughter and rape.

It may sentence offenders to imprisonment for a

maximum of 7 years.

30
The District Court has been assigned special
jurisdiction to hear cases relating to employees’
compensation under the Employees Compensation
Ordinance and cases for discrimination under various
anti-discrimination ordinances

The Family Court, which is part of the District Court,

deals with family-related matters such as divorce,
maintenance, custody, etc.

Appeals will go to the Court of Appeal.

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The Magistrates’ Courts

Permanent Magistrates exercise criminal jurisdiction

over a wide range of summary offences including petty
theft, common assault, road traffic offences,
possession of drugs.

The maximum sentencing power of a Permanent

Magistrate is 2 years’ imprisonment (or 3 years’
imprisonment if two or more consecutive sentences
are imposed) and a fine of $100,000.

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Where an accused is charged with an indictable
offence, he will be brought in the first place before a
Permanent Magistrate for committal proceedings(初級
偵訊). The function of the Magistrate is not that of
finding the accused guilty or not guilty but to
determine whether a prima facie case has been made,
and if this is the case, the accused will be transferred
to the District Court or the Court of First Instance for a
formal trial.

A Magistrate has power to issue a warrant for the

apprehension of any person or to grant or refuse bail.

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Some minor offences such as hawking, traffic
contraventions and littering are heard by Special
Magistrates who do not have the power to impose
imprisonment. Their jurisdiction is limited to a
maximum fine of $50,000.

The Juvenile Court has jurisdiction to hear charges

against children (aged under 14) and young persons
(aged between 14 and 16) for any offences other than
homicide.

Appeals to the Magistrate Court’s decisions go to the

Court of First Instance of the High Court.

34
The Appeal System

The Court of Final Appeal hears appeals on civil and

criminal matters from the Court of Appeal and Court of
First Instance.

The Court of Appeal hears appeals on civil and/or

criminal matters from the Court of First Instance,
District Court and Lands Tribunal.

The Court of First Instance hears appeals on civil

and/or criminal matters from the Magistrate's Court,
Labour Tribunal and Small Claims Tribunal.

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The Jury System

The most serious criminal offences are tried by a judge

of the Court of First Instance, sitting with a jury
consisting of seven or, where a judge so orders, nine.

It is the jury which decides whether the accused is

guilty or not guilty and a majority vote is required.

The system of jury may be used in some civil cases

such as libel.

Also if a coroner decides to hold an inquest with a jury,

a jury of three will be appointed.
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THE DOCTRINE OF JUDICIAL PRECEDENT

1. Introduction

The custom of following already decided cases is

called the doctrine of judicial precedent or stare
decisis (Latin phrase meaning to stand by previous
decisions).

In certain circumstances the judge has no option but to

apply the law as previously pronounced whether he
agrees with it or not.

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2. Case law

2.1 Ratio decidendi: “the reason for decision”. It

consists of 3 parts:
- material facts of the case;
- statement of law applied to the legal problems
disclosed by the facts upon which the decision is
based; and
- final decision.

2.2 Obiter dictum: “thing said by the way”

Statement of law made by the way, not based on the
facts as found.

Only the ratio decidendi of a case is strictly binding,

obiter dictum is only persuasive. 38
3. The ranking of courts and the doctrine of judicial
precedent

The decisions made by higher courts are normally

binding on lower courts.

The decisions made in tribunals have no binding

effect. However, all decisions made by the court are
persuasive even though they are not binding.

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The Process of Legislation

Initially, there will be consultation with interested

parties.

A bill will be prepared by the Law Drafting Division of

the Department of Justice and submitted to the
Executive Council for discussion.

Normally, approval from the Chief Executive in Council

is needed to introduce a bill into the Legislative
Council. However, any member of the Legislative
Council is also entitled to introduce a private bill.

The bill will be published in the Government Gazette

for further consultation.
40
The bill will be given a short title (setting out the name
of the bill), a long title (setting out the purposes of the
bill in general terms) and an explanatory memorandum
(stating the contents and objects of the bill in non-
technical language). The bill shall be presented in the
Chinese and English languages.

First Reading is a mere formality. The clerk reads the

short title of the bill after which the Council shall be
deemed to have ordered the bill to be set down for a
second reading.

Second Reading: a debate is held during which

legislators can voice their opinions. Then, there will be
a vote to decide if the bill should be passed.

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If the bill is defeated, no further proceedings will be
taken.

If the bill is passed, it may go through a committee

stage during which more details will be worked out.

The bill will then be proceeded to Third and Final

Reading.

A copy of every bill passed by the Legislative Council

shall be submitted to the Chief Executive for his
signature and the bill will formally become an
ordinance.

42
An ordinance shall be published in the Gazette again
and it generally commences at the beginning of the day
on which it is published or commences on a day to be
announced.

Law enacted by the legislature of the Hong Kong

Special Administrative Region must be reported to the
Standing Committee of the National People’s Congress
for record. The reporting for record shall not affect the
entry into force of such law. (Article 17 of the Basic
Law)

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The Delegated Legislation

Legco is not able to deal directly or specifically with all

of the details of its statutes.

A great deal of legislation is made under delegated

powers called subsidiary or delegated or subordinate
legislation.

The ‘parent’ ordinance gives powers to some institutes

to make the delegated legislation. For example, the
Companies Ordinance provides that the Chief Justice
may, with the approval of Legco, make rules for the
winding up of companies.

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THE INTERPRETATION OF LEGISLATION

1. Problems associated with interpreting statutes

Language is in some respects an imperfect means of

communication and sometimes the intention of
legislature is not completely clear in the legislation
which it passes.

The function of judges in relation to legislation is to

apply and interpret it in the case before them.

45
Statutory aids to interpretation
The Interpretation and General Clauses Ordinance

Section 7:
‘the male includes the female gender, and vice versa’
‘writing includes printing, photography and other
methods’
‘person includes corporations’
‘singular includes the plural, and vice versa’

Section 19:
An Ordinance shall be deemed to be remedial and shall
receive such fair, large and liberal construction and
interpretation as will best ensure the object of the
Ordinance is attained according to its true intent,
meaning and spirit. 46
Common Law Approaches

(a) The literal rule

Where words of an Ordinance are themselves plain and

unambiguous, no matter how unjust they might be,
they must be interpreted according to their literal and
grammatical meaning.

The duty of the judges is to explain the words in their

natural and ordinary sense, even if the result appears
to be contrary to the intention of the legislature.

47
Common Law Approaches

(b) The golden rule

Where the statute permits of two or more interpretations, the

court must adopt that interpretation to avoid any “manifest
absurdity” and the language may be varied or modified only
so much as is to remove the absurd result.

(c) The mischief rule

The courts try to find out the true reasons of the legislation.

The courts will ask the following questions: (i) what was the
common law before the statute; (ii) what was the mischief for
which common law did not provide; (iii) what remedy has
Parliament resolved so as to cure it; and (iv) what is the true
reason of that remedy?

48
Common Law Approaches

(d) The ejusdem generis rule

Where general words follow particular words, the

general words must be taken as referring to things of
the same kind as the particular words, e.g. "dogs, cats
and other animals" – the phrase “other animals”
should not be interpreted to include lions and tigers
which are not domestic animals. Similarly, a reference
to “house, office, room or other place” was held not to
include an outdoor racecourse, for “other place”
created a genus of indoor places only.

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The Department of Justice

The Department of Justice plays a significant role in

our legal system. The Department gives legal advice to
other bureaux and departments of the Government,
represents the Government in legal proceedings, drafts
government bills, makes prosecution decisions, and
promotes the rule of law. It is an important policy
objective of the Department to enhance Hong Kong's
status as a regional centre for legal services and
dispute resolution.

50
Government of the Hong Kong
Special Administrative Region

51
Government in the Hong Kong Special Administrative
Region

The Executive – The provisions of the Basic Law ensure

a strong Chief Executive who would take on a role much
like that previously held by the Governor of Hong Kong.

Under the Basic Law, the Chief Executive is to hold office

for a term of not more than five years and is appointed by
the Central People’s Government.

The Basic Law also provides that the Chief Executive is

to be assisted by an Executive Council. It exists to assist
the Chief Executive in making policy decisions and
should indeed be consulted by the Chief Executive
before she makes any major policy decisions.

The Chief Executive should also consult the Council

before he introduces Bills into the Legislative Council.
52
The Legislature – The main work of the Legislative
Council under the Basic Law is to make and amend
legislation, to examine and approve budgets presented
by the government, to approve taxation and public
expenditure, to raise questions concerning the work of
the government, to engage in debate on matters of public
interest.

The Basic Law provides for ‘check and balance’

mechanisms between the executive and the legislature.
For example, it is provided that if the Chief Executive
refuses to assent to a Bill passed by LegCo, he may refer
it back for reconsideration. If LegCo then passess the
original Bill again by a two-thirds majority, the Chief
Executive must either sign the Bill into law or dissolve
LegCo. If LegCo is dissolved and the subsequently
elected LegCo again passes the Bill by a two-thirds
majority, the Chief Executive must either sign it or resign.

53
The Judiciary – The Basic Law resulted in significant
changes to the judicial branch of power. Article 81
established a Court of Final Appeal within Hong Kong,
replacing the privy Council in London as the final court
of appeal for Hong Kong; and Art 82 gave the Court of
Final Appeal the power of final adjudication.

Furthermore, the Basic Law, in Art 85, explicitly

maintains the principle of an independent judiciary.

In terms of appointment and tenure of judges, Art 88 of

the Basic Law has provided that the Chief Executive has
the power to appoint judges but he may do so only on
the recommendation of an independent commission
composed of local judges, persons from the legal
profession and eminent persons from other sectors.

54
However, these provisions have to be balanced against
Art 158 which confers the power of final interpretation of
the Basic Law in matters concerning relations between
the Hong Kong SAR and PRC to the Standing Committee
of the National People’s Congress (NPCSC).

This latter provision, especially when it is given a broad

interpretation, may be said to have potential to result in a
considerable diminution of the Hong Kong courts’ power
of final adjudication and at the same time invite the
substitution of the political perspective of the NPCSC for
the judicial perspective of the Hong Kong judiciary.

55
Administrative Law

56
Administrative law is the law that provides the legal
power and the legal duties of individual public bodies
and public authorities, e.g. local authority powers and
duties, of government departments.

Administrative law is the legal framework within which

public administration is carried out. It derives from the
need to create and develop a system of public
administration under law.

Since administration involves the exercise of power by

the executive arm of government, administrative law is
of constitutional and political, as well as juridical,
importance.

57
There is no universally accepted definition of
administrative law, but rationally it may be held to
cover the organization, powers, duties, and functions
of public authorities of all kinds engaged in
administration; their relations with one another and
with citizens and nongovernmental bodies; legal
methods of controlling public administration; and the
rights and liabilities of officials.

One of the principal objects of administrative law is to

ensure efficient, economical, and just administration.

Red light theories – Red light theories are those which

see the aim of administrative law as being to curb state
activity so as to protect the individual.

Red light theories believe (1) that law is superior over

politics; (2) that the administrative state needs to be
kept in check; and (3) the best way to do this is
through rule based adjudication in the courts.

58
Green light theories – Green light theories see
administrative law as existing to help the state meet
certain policy objectives.

They emphasize the role allotted to political institutions,

i.e. taking a ‘functionalist approach’ to the allocation of
functions.

They want to encourage efficiency in the governing

process. It basically comes down not to resisting
interventionism, but to make the policy efficient and
provide justice for individuals.

Green light theories say (1) that law is merely a type of

political discourse and is not superior to administration;
(2) that public administration is not a necessary evil but a
positive good; (3) that administrative law is not to stop
bad practices but to promote and facilitate good
administrative practices and that rule based adjudication
is not necessarily the best way to do this, and (4) that
liberty is to be promoted.
59
In reality, there are many shades in between red and
green light theories, and most people occupy a middle
ground.

The focus of the discussion on red and green light

theories may give the impression that legal systems can
be described in such definite terms. However, there is
also a view put forward by some academics that systems
will usually display characteristics of both red and green
light theories. These kind of theories are categorized as
amber light theories.

Amber light theorists say that (1) law is superior to

politics – same as red; (2) that the state can successfully
be limited by law, but that it ought to be given a
controlled area of discretion; (3) that the best method of
control is through broad judicial principles such as
legality; and (4) that liberty amounts to the protection of
specific human rights.

60
Moving beyond the purposes of control and facilitation,
there are other purposes behind administrative law that
help shape its scope and development:

(1) administrative law serves to command the

performance of public functions. This will often be the
case where an Ordinance places a legal duty on a
decision-maker to meet certain obligations.

(2) administrative law serves the purpose of holding the

executive accountable for the decisions they make.

(3) administrative law provides a mechanism for

participation in the processes of government.

(4) and perhaps the most important for an aggrieved

resident, administrative law serves to provide remedies
for wrongs committed by public authorities.

61
Non-Judicial Controls
on Government

62
Principal Officials Accountability System (POAS)

It is a system whereby all principal officials, including the

Chief Secretary for Administration, Financial Secretary,
Secretary for Justice and head of government bureaux
would no longer be politically neutral career civil
servants. Instead, they would all be political appointees
chosen by the chief executive.

Principal officials under the accountability system will

accept total responsibility and in an extreme case, they
may have to step down for serious failures relating to
their respective portfolios. They may also have to step
down for grave personal misconduct or if they cease to
be eligible under the Basic Law.

63
Access to Information

Access to information is fundamental for promoting

accountability and transparency on the part of the
executive. This is regulated through the code on Access
to Information introduced in March 1995.

The Code on Access to Information provides a formal

framework for access to information held by government
departments. It defines the scope of information that will
be provided, sets out how the information will be made
available either routinely or in response to request, lays
down procedures governing its release, as well as
procedures for review or complaint.

64
Public consultations and engagement

If conducted properly and with proper access to an

appropriate cross-section of the public and relevant
stakeholders, the public consultation process can:

(1) Improve the overall decision-making process

through input from a wider range of sources than are
available within the government.

(2) Improve the participative legitimacy of decisions

made on key policy areas.

(3) Improve the chances of a more rounded and

researched decision a the end of the process.

65
Statutory Advisory Bodies

In certain areas of government there exist statutory and

advisory bodies which provide advisory support to the
government. These bodies may have been created by
statute or by the executive body they are assisting:

By statute – For example, the Antiquities Advisory board

古物諮詢委員會 is established pursuant to section 17 of
the Antiquities and Monuments Ordinance古物及古蹟條
例(Cap. 53) provides the Antiquities Authority with
advice on the historical grading of a building or site.

By executive bodies they advise –Telecommunications

Regulatory Affairs Advisory Committee 電訊規管事務諮詢
委員會 of the telecommunications Authority and the
Transport Advisory Committee 交通諮詢委員會 of the
Transport and Housing Bureau.

66
Tribunals委員會

Tribunals are intended to make up for certain limitations

that affect the operation of judicial review.

Judicial review can be expensive and time-consuming to

obtain. Judges can only review the legality or lawfulness
of a decision and not the merits of the decision, and at
the conclusion of a judicial review the judge must remit
the decision back to the original decision-maker to
reconsider.

Tribunals are intended to provide a less costly and less

time-consuming alternative to judicial remedies through
a simpler procedure. In addition, tribunals are intended
to provide a specialized form of redress as tribunals
tend to be staffed by specialists in various areas of
government and not just lawyers.

67
Tribunals

Two main categories of tribunals: general and specialist.

The main general tribunal is the Administrative Appeals

Board 行政上訴委員會 which hears appeals against
government decisions made under a variety of
legislation.

Key specialist tribunals include the Immigration

Tribunal, the Social Security Appeals Board社會保障上訴
委員會and the Appeal Board Panel (Town Planning)上訴
委員團﹝城市規劃﹞.

68
Office Of The Ombudsman 申訴專員公署

Section 7(1)(a)(ii) of The Ombudsman Ordinance

empowers The Ombudsman to initiate investigations of
his own volition even no complaint has been received if
he considers that any person may have sustained
injustice in consequence of maladministration of an
organisation under his purview. Such investigations are
called direct investigations.

Under the Ordinance, The Ombudsman has a wide range

of investigative powers: conducting inquiries, obtaining
information and documents, summoning witnesses and
inspecting premises of organisations under complaint.

69
Office Of The Ombudsman

The Ombudsman has powers to:

(1) investigate complaints from aggrieved persons about

maladministration by the Government
departments/agencies and public bodies.

(2) investigate complaints against Government

departments/agencies for non-compliance with the Code
on Access to Information.

(3) initiate direct investigation, of his volition, into

issues of potentially wide public interest and concern.

70
Office Of The Ombudsman

Direct Investigation is a proactive approach to problems

of public interest and concern. It aims at:

(1) following through matters with systemic or

widespread deficiencies which investigation of a
specific complaint may not resolve.

(2) nipping problems in the bud.

(3) resolving repeated complaints by addressing the

fundamental problems which may not be the subject of
any complaint but which may be the underlying reasons
for deficiencies.

71
Office Of The Ombudsman

A direct investigation may be prompted by topical

issues of community concern, implementation of new or
revised Government policies or repeated complaints on
particular matters.

The main considerations for launching a direct

investigation include:
(1) whether the matter involved is of public interest and
concern.

(2) whether a complaint will otherwise not be actionable,

e.g. it is made anonymously or not by an aggrieved
person, where the matter is nevertheless of significant
concern to The Ombudsman because of the magnitude
or seriousness of the maladministration that may be
involved. 72
Office Of The Ombudsman

(3) whether the time is opportune, weighing against the

consequences of not doing so and the public
expectations of this Office.

(4) whether there is duplication of the efforts of other

organisations.

73
Office Of The Ombudsman

While The Ombudsman’s investigation shall not affect

any action taken by the organisation under complaint or
the organisation's power to take further action with
respect to any decision which is subject to the
investigation, the Ombudsman may report his findings
and make recommendations for redress or improvement
to the organisation.

Heads of organisations have a duty to report at regular

intervals their progress of implementation of The
Ombudsman's recommendations.

74
Judicial Review

75
Judicial Review is a review of administrative decisions or
determinations made by someone who has the power
and authority to make a certain set of decisions of
determinations.

Judicial review is a procedure by which the Court of First

Instance of the High Court exercises its supervisory
jurisdiction over the activities of administrative bodies
and inferior courts. The administrative bodies concerned
are usually government departments and those public
bodies which were set up according to certain
ordinances.

The party who applies for a judicial review is called "the

Applicant" and the party who made the decision under
dispute is called "the Respondent".
76
The first important note is that judicial review does not
aim at reviewing the merits of an administrative decision.
Instead, the court will review the relevant decision-
making process . In other words, the court will not
examine whether the decision under challenge is right or
wrong, but it will check whether there was any error
made during the decision-making process.

The second note is that the decision under review must

affect the public interest . If the subject decision only
undermines your own interest, or it is only a personal
dispute between you and the decision-maker, the court
will reject your application. An example of a personal
dispute would be an argument between you and the
decision-maker in relation to a contract term.

77
The third note is that a judicial review is normally
brought to the court on at least one of the following
grounds:

The decision was made by a person who does not have

the relevant statutory authority.

The decision was made under an improper or incorrect

procedure. (For example, the decision-maker did not
observe the procedural rules as written in a particular
ordinance.)

The decision was unreasonably made. (For example, the

decision-maker failed to take into account a relevant
matter when making the decision).

78
Legal Basis
of
Judicial Review

79
The legal basis has a major bearing on the scope of
judicial review. If the legal basis for the court’s role
necessarily implies a limited role for judicial review, then
the courts would be unable to subject decision-makers to
a searching standard of scrutiny. If, by contrast, the legal
basis imply a broad role for the courts, then the courts
would be free to develop judicial review principles in a
way that could lead to considerable legal restriction on a
decision-maker’s discretion.

Linked to the scope of judicial review, the legal basis

should also indicate the method by which the court
approaches the task of review.

Identifying the legal basis for judicial review is important

in order to provide a justification for the court’s role.

80
The ultra vires doctrine

The legislative intention approach, known as the ultra

vires doctrine, represents the proposition that a decision-
maker, on whom legislation has conferred legal powers,
must not exceed these powers.

In determining whether the decision-maker exceed their

powers, the courts will ascertain from an examination of
the legislative intent the applicable principles that define
the scope of these legal powers.

Common amongst these principles: a decision-maker

cannot act in bad faith, act with an improper statutory
purpose, ignore relevant considerations, take into
account irrelevant considerations, or behave irrationally.

81
Problems with the ultra vires doctrine

First, the ultra vires doctrine is premised on there being

ascertainable legislative standards to guide the court in
establishing whether a decision-maker acted beyond
their powers. The difficulty, however, is that many
ordinances are drafted in vague and imprecise terms.
Often, statutory provisions are of such open texture that
they do not place any limits on the court’s role.

Second, the ultra vires doctrine is unable to account for

the development of judicial review over time. If the courts
are applying the intention of the legislature in each case,
then what accounts, for example, for the sudden
development of substantive legitimate expectations or
proportionality review?

82
Problems with the ultra vires doctrine

Third, the ultra vires doctrine does have some semblance

of truth with respect to how the courts supervise the acts
and decisions of statutory bodies exercising statutory
powers. However, there are significant areas of
administrative activity which do not derive from a
statutory source. In this regard, the courts have also
applied principles of judicial review to (a) non-statutory
bodies and (b) bodies exercising non-statutory powers.

Fourth, if the courts are really applying legislative

intention, then how can they justify their disregard of
those statutory clauses that seek to ‘oust’ judicial review.

83
The common law theory of judicial review

It is against the backdrop of the criticism of the ultra

vires doctrine that various commentators have
developed an alternative, competing foundations for
judicial review: one based on the common law
methodology of judicial decision-making and common
law values.

The common law principles are justified by reference to

the rule of law.

Implicit in the rule of law are substantive ideals such as

justice, fairness and respect for rights.

84
Further development to the common law theory of
judicial review

(1) The rights-based approach – the judicial intervention

is no longer premised on the idea that the courts are
simply applying the legislative will. Their role is to
articulate principles, which should guide the exercise of
administrative action. A common element of a rights-
based approach is that the courts should whenever
possible interpret the exercise of administrative
discretion to be in conformity with fundamental rights.

85
Further development to the common law theory of
judicial review

(2) Abuse of power

When it is accepted that the public authority had the
power, however there is something about the doing it in
an individual circumstance that constitutes an abuse of
the power.

There has three grounds of review:

(a) the exercise of power for an improper purpose
(b) taking account of the irrelevant considerations or
failing to take into account of relevant ones and
(c) it must be true that no reasonable person, who was
acting in a reasonable manner at the moment in question,
could have possibly performed the action.
86
Further development to the common law theory of
judicial review

(3) Fairness
(a) Procedural fairness – The fundamental
requirements of procedural fairness are that a hearing
or other appropriate procedure will be afforded before
any decision is made.

(b) Substantive fairness – this concerns the principle of

legitimate expectation. If a representation has been
expressly made that a benefit of a substantive nature
will be granted or if any person is already in receipt of
any benefit, it will be continued and will not be
substantially varied to the disadvantage of the
recipient.

87
The Limits
of
Judicial Review

88
Constitutional Limits on Judicial Review

Act of State

Under Article 19 of the Basic Law: “The courts of the

Hong Kong Special Administrative Region shall have no
jurisdiction over acts of state such as defence and
foreign affairs.”

The rationale for excluding acts of state from judicial

review is that they are matters of policy and not of law,
with the executive in a better position than the courts to
determine where the balance lies.

89
Constitutional Limits on Judicial Review

Prerogative of mercy

Article 48(12) of the Basic Law empowers the Chief

Executive ‘To pardon persons convicted of criminal
offences or commute their penalties.’ This prerogative
power can have the effect of relieving a prisoner from
the punishment, either freely or conditionally, which
may follow criminal conviction.

This prerogative is used as a means of correcting

miscarriages of justice when the appellate courts could
not, such as where exculpatory evidence was
inadmissible, or for summary convictions, which at that
time circumstances where the criminal trial and appeal
system produces a result that the public interest cannot
sustain.

90
Constitutional Limits on Judicial Review

Policy formulation

Article 62 of the Basic Law confers constitutional

authority on the executive ‘To formulate and implement
policies’, which includes the power to ‘To conduct
administrative affairs’.

In formulating policy, especially that which has broad

social and economic implications, the executive will
have to take into account a wide range of factors and
interests to arrive at the chosen policy.

91
Statutory Limits on Judicial Review

Time limit clauses

Time limit clauses serve the purpose of limiting the

period of time to seek a remedy for a public law breach.
If the applicant failed to seek judicial redress within the
required time then their application will be statute-
barred. An application for judicial review must be made
promptly and in any event within three months after the
grounds to make a claim first arose.

Yet, time limit clauses that appear in legislation will

often shorten this period, taking into account the needs
for expeditious and final decisions in a particular area of
public decision-making. For example, there is a seven-
day statutory time limit to lodge a petition to challenge
the validity the Chief Executive’s election.

92
Statutory Limits on Judicial Review
Ouster clauses – An ouster clause is a statutory
provision that seeks to remove the court’s power to
review and grant remedies.

Examples:
Housing Ordinance (Cap. 283), Section 19(3): No court
shall have jurisdiction to hear any application for relief
by or on behalf of a person whose lease has been
terminated under subsection (1) in connection with such
termination.

Protection of Wages on Insolvency Ordinance (Cap.

380), Section 20: No decision of the Commissioner or
the Board made in exercise of any discretion under this
part shall be challenged in any court.

93
Remedies

94
Certiorari (Quashing Order)

A quashing order nullifies a decision which has been

made by a public body. The effect is to make the
decision completely invalid. Such an order is usually
made where an authority has acted outside the scope of
its powers (‘ultra vires’). The most common order made
in successful judicial review proceedings is a quashing
order.

If the court makes a quashing order it can send the case

back to the original decision maker directing it to
remake the decision in light of the court’s findings. Or,
very rarely, if there is no purpose in sending the case
back, it may make the decision itself.

95
Prohibition (Prohibiting Order)

A prohibiting order is similar to a quashing order in that

it prevents a tribunal or authority from acting beyond
the scope of its powers. The key difference is that a
prohibiting order acts prospectively by telling an
authority not to do something in contemplation.

Examples of where prohibiting orders may be

appropriate include stopping the implementation of a
decision in breach of natural justice, or to prevent a
local authority licensing indecent films, or to prevent the
deportation of someone whose immigration status has
been wrongly decided.

96
Mandamus (Mandatory Order)

A mandatory order compels public authorities to fulfil

their duties. Whereas quashing and prohibition orders
deal with wrongful acts, a mandatory order addresses
wrongful failure to act. A mandatory order is similar to a
mandatory injunction as they are orders from the court
requiring an act to be performed. Failure to comply is
punishable as a contempt of court.

A mandatory order may be made in conjunction with a

quashing order, for example, where a local authority’s
decision is quashed because the decision was made
outside its powers, the court may simultaneously order
the court to remake the decision within the scope of its
powers.

97
Declaration

A declaration is a judgment by the Administrative Court

which clarifies the respective rights and obligations of
the parties to the proceedings, without actually making
any order. Unlike the remedies of quashing, prohibiting
and mandatory order the court is not telling the parties
to do anything in a declaratory judgment.

For example, if the court declared that a proposed rule

by a local authority was unlawful, a declaration would
resolve the legal position of the parties in the
proceedings. Subsequently, if the authority were to
proceed ignoring the declaration, the applicant who
obtained the declaration would not have to comply with
the unlawful rule and the quashing, prohibiting and
mandatory orders would be available.
98
Injunction

An injunction is an order made by the court to stop a

public body from acting in an unlawful way. Less
commonly, an injunction can be mandatory, that is, it
compels a public body to do something.

Where there is an imminent risk of damage or loss, and

other remedies would not be sufficient, the court may
grant an interim injunction to protect the position of the
parties before going to a full hearing. If an interim in
injunction is granted pending final hearing, it is possible
that the side which benefits from the injunction will be
asked to give an undertaking that if the other side is
successful at the final hearing, the party which had the
benefit of the interim protection can compensate the
other party for its losses.
99
Damages

Damages are available as a remedy in judicial review in

limited circumstances. Compensation is not available
merely because a public authority has acted unlawfully.

For damages to be available there must be a recognised

‘private’ law cause of action such as negligence or
breach of statutory duty .

100
Discretion

The discretionary nature of the remedies outlined above

means that even if a court finds a public body has acted
wrongly, it does not have to grant any remedy.

Examples of where discretion will be exercised against

an applicant may include where the applicant’s own
conduct has been unmeritorious or unreasonable, for
example where the applicant has unreasonably delayed
in applying for judicial review, where the applicant has
not acted in good faith, where a remedy would impede
the an authority’s ability to deliver fair administration, or
where the judge considers that an alternative remedy
could have been pursued.

101
Grounds
of
Judicial Review

102
Procedural Fairness

103
What is procedural fairness?

Procedural fairness is concerned with the procedures

used by a decision-maker, rather than the actual
outcome reached. It requires a fair and proper procedure
be used when making a decision.

The rules of procedural fairness do not need to be

followed in all government decision-making. They
mainly apply to decisions that negatively affect an
existing interest of a person or corporation. For
instance, procedural fairness would apply to a decision
to cancel a licence or benefit; to discipline an employee;
to impose a penalty; or to publish a report that damages
a person’s reputation.

Procedural fairness also applies where a person has a

legitimate expectation. It protects legitimate
expectations as well as legal rights. It is less likely to
apply to routine administration and policy-making.

104
The duty to accord procedural fairness consists of three
key rules:

(1) the fair hearing rule – which requires a decision-

maker to accord a person who may be adversely
affected by a decision an opportunity to present his or
her case;

(2) the rule against bias – which requires a decision-

maker not to have an interest in the matter to be
decided and not to appear to bring a prejudiced mind
to the matter; and

(3) the "no evidence" rule – which requires a decision

to be based upon logically probative evidence.

105
When should the rules of procedural fairness be observed?

 There is a presumption in law that the rules of procedural

fairness must be observed in exercising statutory power that
could affect the rights, interests or legitimate expectations of
individuals. However, it is good practice to observe these
rules whether or not the power being exercised is statutory.

 If action being taken by a public official or by or on behalf of a

public sector agency will not directly affect a person’s rights
or interests, there is no obligation to inform the other person
of the substance of any allegations or other matters in issue.

 However, if an investigation will lead to findings and

recommendations about the matter, the investigator should
provide natural justice to the person against whom allegations
have been made. Similarly, the person who ultimately makes a
decision on the basis of the investigation report must also
provide natural justice, by allowing the person adversely
commented upon to make submissions regarding the
proposed decision and sanction.
106
What are the rules of procedural fairness?

 Any person who decides any matter without hearing both

sides, though that person may have rightly decided, has not
done justice. Any person whose rights, interests or legitimate
expectations will be affected by a decision or finding is
entitled to an adequate opportunity of being heard. In order to
properly present their case, the person is entitled to know the
grounds on which that decision or finding is to be taken.

 Depending on the circumstances which apply, natural justice

may require a decision-maker to:
• inform any person:
– whose interests are or are likely to be adversely affected by
a decision, about the decision that is to be made and any case
they need to make, answer or address
– who is the subject of an investigation (at an appropriate
time) of the substance of any allegations against them or the
grounds for any proposed adverse comment in respect of
them.
107
• provide such persons with a reasonable opportunity to put
their case, or to explain to the decision-maker, whether in
writing, at a hearing or otherwise, why contemplated action
should not be taken or a particular decision should or should
not be made.

• consider those submissions.

• make reasonable inquiries or investigations and ensure that

a decision is based upon findings of fact that are in turn based
upon sound reasoning and relevant evidence.

• act fairly and without bias in making decisions, including

ensuring that no person decides a case in which they have
direct interest.

• conduct an investigation or address an issue without undue

delay.
108
Benefits for persons whose rights or interests may be
affected

Procedural fairness allows persons whose rights or

interests may be affected by decisions the opportunity:
(a) to put forward arguments in their favour.
(b) to explain why proposed action should not be taken.
(c) to deny allegations.
(d) to call evidence to rebut allegations or claims.
(e) to explain allegations or present an innocent
explanation.
(f) to provide mitigating circumstances.

109
Benefits for investigators and decision-makers

While procedural fairness is, at law, a safeguard

applying to the individual whose rights or interests are
being affected, an investigator or decision-maker should
not regard such obligations as a burden or impediment
to an investigation or decision-making process.

Procedural fairness can be an integral element of a

professional decision-making or investigative process –
one that benefits the investigator or decision-maker as
well as the person whose rights or interests may be
affected.

110
Fair Hearing Rule

The hearing rule requires a decision-maker to inform a person

of the case against them and provide them with an
opportunity to be heard. The extent of the obligation on the
decision-maker depends on the relevant statutory framework
and on what is fair in all the circumstances.

Components of a ‘fair hearing’:

1. Right to notice;
2. Right to present case and evidence or right for a ‘hearing’;
3. Right to know the evidence against him;
4. Right to challenge the opposing case;
5. Legal Representation; and
6. The duty to provide adequate reasons.

111
Right to notice

The parties likely to be affected by a decision are given

sufficient advanced notice of any proposed action taken by
the authority.

The basic principle underlying the notice requirement is that

persons affected by decisions should not be taken by
surprise. Notice is required so that affected persons can at
least attend the hearing, and if they wish to argue their case.

This entails knowing the case against them or their interests,

including the disclosure of all materials that are relevant to the
charges made against them.

The notice should be sufficiently clear so that the affected

parties can prepare their case, which may include disclosure
of all documents pertinent to the authority’s case.
112
Right to present case and evidence or right for a
‘hearing’

The adjudicatory authority must provide the party a

reasonable opportunity to present his case. This can be
done either orally or in written. The requirement of
natural justice is not met if the party is not given the
opportunity to represent in view of the proposed action.

In this respect, the most obvious way for individuals to

participate in the decision making process is through an
oral hearing.

An oral hearing provides an affected individual with an

important mechanism to put their case effectively and is
often a prerequisite for other procedural safeguards,
including the right to cross-examination. 113
Right to know the evidence against him

Every person appears before an administrative authority

exercising adjudicatory powers has right to know the
evidence to be used against him.

The principle of natural justice is so fundamental that it

is not to be construed as a mere formality. Where the
material relied upon are not enclosed in an order issued
for explanation on the incident, misconduct etc, there is
no sufficient opportunity.

114
Right to challenge the opposing case

The fair hearing rule also requires that an affected party

be able to challenge the opposition case, including the
right to cross-examination witnesses.

Denying an accused a fair opportunity of cross-

examining as to credit of a witness was a form of
‘procedural impropriety’ sufficiently serious to justify
the court coming to the conclusion that there had been
a substantial denial of natural justice.

115
Legal representation

Whether legal representation is permitted depends on

the circumstances of each case. The issues to be taken
into account include:

1. Seriousness of the sanctions;

2. Difficult points of law exist;

3. The respondents are laymen who will not be able

properly to present their own cases;

4. There is no equality of arms;

5. There is a material dispute of facts so that cross-

examination is required.
116
The duty to provide adequate reasons

Reasons help demonstrate that the authority has acted

properly and taken into account all relevant considerations.

Reasons promote accountability and enhance consistency in

decision-making. Where the authority does not give reasons
for its decisions, it would prevent the affected party from
detecting any faults in the reasoning process that may in turn
support a claim for administrative or judicial review.

Further, providing reasons is also of benefit to the authority

itself in that it serves to concentrate its attention on the
relevant issues.

If there is a duty to give reasons, it is necessary that they are

adequate, intelligible and address the substantial points that
have arisen in making the decision.
117
Rule Against Bias

Bias means an operative prejudice, whether conscious or

unconscious, as result of some preconceived opinion or
predisposition, in relation to a party or an issue. Dictionary
meaning of the term bias suggests anything which tends a
person to decide a case other than on the basis of evidence.

This principle of natural justice consists of the rule against

bias or interest and is based on the following maxims:

(1) No man shall be a judge in his own cause.

(2) Justice should not only be done, but manifestly and

undoubtedly be seen to be done.

(3) Judges, like Caesar's wife, should be above suspicion.

118
No man shall be a judge in his own cause

A discretionary authority cannot decide a case in which

he himself is involved, or if he has any personal favour
to be done. He has to be impartial and fair in his
decision-making. His decision should not be affected by
any preconceived views about that matter.

Justice should not only be done, but should manifestly

and undoubtedly be seen to be done.

This is not about the proceedings being visible from a

public gallery. It means there must be nothing in the
appearance of what happens in a trial that might create
an impression that something improper happened.

119
Judges, like Caesar's wife, should be above
suspicion

This maxim comes from a story that Julius Caesar

divorced his wife because of rumors of opprobrious
behavior. At trial, Caesar said he knew nothing about his
wife’s rumored adultery, but asserted that he divorced
her because his wife “ought not even be under
suspicion”.

In a sense, what Caesar was asserting was that he

would not allow his wife’s suspected behaviors to sully
his status, reputation, and prestige. At the time, Caesar
was a powerful and ambitious political player, and he
did not want his career thwarted by rumors of his mate’s
unreputed behavior.
120
There are three types of bias:

1. Pecuniary bias – the administrative authority

exercising quasi-judicial function should not have any
pecuniary interest in the subject matter of the litigation.
Even the lease pecuniary interest in the cause will
disqualify the authority from acting as a judge.

2. Personal bias – personal bias may arise by means of

friendship, relationship, enmity, personal grudge or
professional rivalry. A person who is a relative, friend or
enemy of disputing parties is disqualified from acting as
a judge.

3. Bias as to subject matter – if the authority that has the

power to decide a dispute has some general interest in
the subject of the dispute, he is disqualified from acting
as a judge. The quasi-judicial authority should not have
any interest in the subject matter of the dispute. 121
‘Actual Bias’ and ‘Apparent Bias’

‘Actual Bias’
A claim of actual bias requires proof that the decision-
maker approached the issues with a closed mind or had
prejudged the matter and, for reasons of either partiality
in favour of a party or some form of prejudice affecting
the decision, could not be swayed by the evidence in the
case at hand.

Actual bias is assessed by reference to conclusions that

may be reasonably drawn from evidence about the
actual views and behaviour of the decision-maker.

A claim of actual bias requires clear and direct evidence

that the decision-maker was in fact biased. Actual bias
will not be made out by suspicions, possibilities or other
such equivocal evidence.
122
‘Actual Bias’ and ‘Apparent Bias’

‘Apparent Bias’
A claim of apparent bias requires a finding that a fair
minded and reasonably well informed observer might
conclude that the decision-maker did not approach the
issue with an open mind.

Apparent bias is assessed objectively, by reference to

conclusions that may be reasonably drawn about what
an observer might conclude about the possible views
and behaviour of the decision-maker.

A claim of apparent bias requires considerably less

evidence. A court need only be satisfied that a fair
minded and informed observer might conclude there
was a real possibility that the decision-maker was not
impartial.
123
Exceptions to the rule against bias

1. Statutory override – statutory provisions may override the

rule against bias. However, the courts will not readily find
such a statutory override unless this is clear.

2. Necessity – this common law rule principle demands in

reality and in all practicality the impossibility to require
someone else other than the complained person to hear the
matter. Mere administrative inconvenience does not suffice. In
other words, the rule against bias will not apply where the
impugned decision maker is the only one who can make the
decision.

3. Waiver – for waiver to be established there must be (a)

knowledge of the bias and (b) the person affected must be
aware that they are entitled to make an objection. The
objection must be raised as soon as the party is aware of the
nature and extent of the bias. They cannot stand by and wait
until a final judgment is given.
124
Leung Fuk Wah Oil v. Commissioner of Police
CACV 2744/2001

Leung was a sergeant of the Hong Kong Police. He was

in serious financial difficulties. He was charged with two
disciplinary offences, pursuant to section 3(2)(e) of the
Police (Discipline) Regulations for failing to be prudent
in his financial affairs by incurring unmanageable size of
debts whereby his efficiency as a police officer was
impaired.

A disciplinary hearing took place in early 1999. A

Superintendent was appointed as the appropriate
Tribunal. Leung was found guilty of the offence on 28
March 1999.

The Tribunal then referred the punishment to a Senior

Police Officer who imposed a penalty of reduction to the
rank of police constable and dismissal from the force.

125
The Force Disciplinary Officer confirmed the finding of
guilt and penalty.

Leung then appealed to the Commissioner of Police.

The Deputy Commissioner of Police exercising the
delegated authority of the Commissioner dismissed the
appeal.

Leung applied for judicial review to quash the decisions

of the Tribunal, the Senior Police Officer and the Deputy
Commissioner of Police on the ground that certain
documents considered by the Deputy Commissioner
were not disclosed to him.

Decision of the Court of Appeal:

“Fairness requires the material to be disclosed so that
the appellant may have a chance to respond to it.…the
judge was right when he considered that the material
needed to be disclosed as a matter of fairness…The
real question in this appeal is whether the
nondisclosure vitiates the decision of the
Commissioner and requires it to be quashed. 126
…Having considered all the circumstances of this case,
it is abundantly clear that the disclosure of the new
documents to Mr. Leung would not have made the
slightest difference to his petition to the Commissioner…

Judicial review is a discretionary remedy. If the breach of

the principle of fairness does not produce a substantial
prejudice to the applicant, the court is bound to take this
into account in deciding whether relief should be given.

This is consistent with the concept that the court should

not substitute its own decision for that of the decision-
maker.”

127
Lau Tak-pui v. Immigration Tribunal [1992] 1 HKLR 374

The Immigration Tribunal established under the Immigration

Ordinance in exercising its power under section 53D of the
Ordinance determined that Lau had not been born in Hong
Kong, that the removal order made by the Deputy Director of
Immigration was therefore valid and that his appeal against
such orders should be dismissed.

There is no express provision requiring the Tribunal to give

reason.

The Tribunal did make a statement explaining the ground for

its decision as follows:
“After careful consideration of the evidence given by all
parties concerned and by the witnesses presented, the
Tribunal has come to the conclusion that the Appellants,
have not discharged the burden of proof that they were born
in Hong Kong and therefore do not enjoy the right of abode
in Hong Kong under section 2A of the Immigration
Ordinance. The appeal is dismissed.”

128
The issues to be considered:
• Should the principles of natural justice be applicable
in this case?
• Was there a duty to give reason?
• Was that reason an adequate one?

Decision of the Court of Appeal:

“Hong Kong Immigration Tribunal was and is a fully
judicial and non-domestic body when hearing such
appeals … it exercises powers affecting the liberty and
residential and citizenship rights of appellants
pursuant to statutory provisions of some complexity.

These are special circumstances which…require as a

matter of fairness the provision of outline reasons
showing to what issues the Tribunal has directed its
mind and the evidence upon which it has based its
conclusions.

129
Turning then to the adequacy of the reasons given in
the respective appeals they show that the only issue
…fell for their determination, namely the appellant’s
places of birth, had been addressed and, by necessary
implication, that all the evidence germane to that issue
had been considered.

The conclusion that the applicants had not been born

in Hong Kong was the basis of fact upon which the
Tribunal determined that they did not enjoy a right of
abode in the Colony.

The requirements, being a statement of the grounds

for the findings, and of natural justice, being at least
as stringent as any which may derive from the terms of
s 53D, were met. It is not suggested that either
determination was aberrant on its face.

130
Mohamed Yaqub Khan v. Attorney General [1986] HKLR 922

Khan, a Superintendent of the Hong Kong Auxiliary Police

Force, was dismissed by the Commissioner of Police on the
ground of his misconduct. Khan was not informed of the
actual allegations against him.

• Should the principles of natural justice be applicable in

this case.

The Court:
“…in cases where an officer can only be dismissed for
cause…the requirements of natural justice will depend upon
the reason which in fact underlies his dismissal. At the very
least, we would think he is entitled to know the reason for
his dismissal.

…we have come to the conclusion …to dismiss Mr. Khan

were matters of misconduct…we therefore conclude that in
the circumstances Mr. Khan ought to have been informed of
the contents of that memorandum and given the opportunity
to make representations in answer.”
131
Wong Pun Cheuk v. Medical Council [1964] HKLR 477

The Director of Medical and Health Services referred a

case against Wong, a medical practitioner, for
prescribing drugs not required for the purpose of
medical treatment to the Medical Council.

The Medical Council of Hong Kong decided to

withdraw the authorization to prescribe drugs from
Wong after an inquiry.

The Director of Medical and Health Services chaired

the Medical Council in this inquiry.

The issue to be considered by the Court: is there any

Bias?
132
Decision of the Court:

“…it is clear that the Director....is in the position of a

complainant or accuser, having presumably previously
gone into the evidence available in order to form the
relevant opinion, and being of the relevant opinion
refers the case for decision to the Medical Council.

At the hearing of the inquiry the decision on the case

as to whether or not to make the relevant
recommendation is made by the Medical Council, and
therefore the members of the Council are the judges of
the case, and have to adjudge whether or not the
recommendation should be made.

It is also clear that the Director is not only a member of

the Medical Council but he is also its chairman…. This
seems to me to be contrary to the legal principle that a
person should not be a judge in his own cause, ... and
it therefore appears to me to be unjust.”

133
Lam Sze Ming and Another v. Commissioner of Police CACV
912/2000

Lam, Au and Lai, were police officers.

They were arrested together with Cheung and Kong in an

police action against illegal gambling. Lam was charged with
gambling in a gambling establishment.

No evidence was offered against Au and Lai for they were

willing to give evidence as persecution witnesses against
Cheung and Kong who were charged with more serious
gambling related offences.

Lam was acquitted and Cheung and Kong were convicted.

Lam was then charged in the police disciplinary

proceedings that he had committed conduct calculated to
bring the Public Service into disrepute.

The conduct complained of was that he frequented the

premises for the purpose of unlawful gambling.
134
For the purpose of the disciplinary proceedings, Lam
was provided with the charge sheet; a list of
witnesses, a list of exhibits, statements made by Au
and Lai to the police during interrogation and a bundle
of photographs.

However, the following documents were not provided:

(i) statements made by Au and Lai under caution at the
time of their arrest;
(ii) the transcript of court proceedings;
(iii) an immunity document and all negotiation relating
to negotiations between the prosecution and Au and
Lai were not released to Lam.

Lam was found guilty and was dismissed.

Lam applied for judicial review against the decision.

The issue to be considered by the Court: must these

documents be disclosed?

135
Decision of the Court of Appeal:

“The test to be applied in determining whether

disclosure should be made…material…
(1) to be relevant or possibly relevant to an issue in a
case;
(2) to raise or possibly raise a new issue, whose
existence is not apparent from
the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect
of providing a lead on evidence which goes to (1) or
(2).

The primary duty is to disclose the material which has

been gathered by the prosecution in the course of its
investigation. It does not follow that only such material
need be disclosed. There may be other material.”

136
…applying the primary duty principle to the
documents not disclosed in this case, I am satisfied,
firstly, in relation to (ii) to (iii), that…failure to disclose
does not amount to a breach of natural justice
resulting in an unfair trial.…

The District Court transcript was made available in the

sense that the applicants were fully aware of its
existence and were advised as to how they could
acquire a copy. The immunity documents concerned
only the District Court proceedings.

The terms of the witnesses’ immunity in giving

evidence against four other defendants in different
proceedings could not, in my judgment, be of such
relevance to the disciplinary proceedings to the extent
that a failure to disclose them would or might result in
justice not being done.
137
…in relation to (i) above, I am…satisfied that
nondisclosure does not amount to a breach of natural
justice for the purpose of these proceedings…

the applicants’ complaint amounts to a failure by the

Prosecutor to seek out and collect material which did
not form part of her case. This was not her duty. It
cannot be said, in this case, that her failure to do
something which she was under no duty to do,
amounts to unfair conduct or a breach of natural
justice.

138
Lam Siu Po v. Commissioner of Police FACV No. 9 of
2008

A police constable, Lam, engaged in stock market

dealings. He lost heavily, found himself deeply in debt,
petitioned for his own bankruptcy and was adjudicated
bankrupt in September 2000.

Consequently he was charged in December that year

with a disciplinary offence.

There were two disciplinary hearings.

The first hearing ended in Lam being convicted on 2

March 2001. But that conviction was set aside by the
Force Discipline Officer for procedural irregularity.

The police officer who had represented the appellant

at the first hearing was not available at the second
hearing, which commenced on 14 December 2001.

139
That police officer was replaced by Lam’s another
representative. But Lam lost confidence in that replacement.
And after being told that he could not engage a legal
practitioner to defend him, the appellant appeared in person at
the second hearing.

Regulation 9(11) and (12) of the Police (Discipline) Regulations

provided that:

“(11) A defaulter may be represented by –(a) an inspector or

other junior police officer of his choice; or (b) any other police
officer of his choice who is qualified as a barrister or solicitor,
who may conduct the defence on his behalf. (12) Subject to
paragraph (11), no barrister or solicitor may appear on behalf
of the defaulter.“

On 27 March 2002 Lam was again convicted. The penalty

imposed on him was compulsory retirement with deferred
benefits.

Whether the absolute bar to legal representation is

constitutional?

140
Article 10 of Bill of Rights Ordinance provides that:

“All persons shall be equal before the courts and

tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial
tribunal established by law.”

The Court of Final Appeal:

Article 10 protections come into play…when a person
is subject to “a determination of his rights and
obligations in a suit at law”.

When it is engaged, it enables the individual faced with

a determination by a governmental or public authority
which may affect his civil rights and obligations to
say: “I am entitled to the protections of Article 10,
including the right to a fair and public hearing by a
competent, independent and impartial tribunal
established by law”.
141
In my view, Article 10 is clearly engaged in relation to the
disciplinary proceedings in present case. The
Administrative Instructions…make it clear that
punishment for the disciplinary…which the appellant
was charged is “normally terminatory”. Such was in fact
the nature of the punishment meted out in this case.

Where Article 10 is engaged, the person concerned

becomes entitled to “a fair and public hearing by a
competent, independent and impartial tribunal
established by law”.

Regulations 9(11) and 9(12) are therefore systemically

incompatible with Article 10. Pursuant to section 6(1) of
the Bill of Rights Ordinance, the Court is empowered to
make such order in respect of this violation of the Bill of
Rights as it considers appropriate and just in the
circumstances. 142
The Court concludes that:
(a) Article 10 is engaged in respect of the appellant’s
disciplinary proceedings.

(b) The requirement of a fair hearing means that the

disciplinary tribunal ought to have considered
permitting the appellant to be legally represented.

(c) Regulations 9(11) and 9(12) are inconsistent with

Article 10 and must be declared unconstitutional, null
and void.

(d) Since the tribunal failed to consider and, if

appropriate, to permit legal representation for the
appellant, he was deprived of a fair hearing in
accordance with Article 10 so that the disciplinary
proceedings were unlawful and the resulting
convictions and sentences must be quashed.
143
Hui Wei Lee v The Medical Council of Hong Kong
CACV114/1993

Hui, a registered medical practitioner, had a charge of

misconduct in a professional respect found proved
against her by the Medical Council. She was removed
from the register for a period of 18 months.

An undercover woman detective police constable, Yu,

gave evidence that, at Hui’s clinic, on the occasion of
the last of her three visits to that clinic, Hui agreed to
perform an illegal abortion on her for $2,000, and had
gone so far as to instruct her to lie down on a bed for
her to be anesthetized for that abortion. Hui denied
agreeing to perform an abortion on Yu. Her reason for
asking Yu to lie on the bed was “trying to cheat her
into permitting me to try to find out what was wrong
with her ...”.

During the disciplinary hearing, the Medical Council

excluded evidence put forward by Hui.
144
The evidence, which was excluded, was of telephone
conversations between Hui and two doctors, one of them a
colleague who used the clinic and the other a surgeon to
whom she from time to time referred patients.

Their testimony, it was said, would have been of telephone

conversations with Hui after Yu’s second visit to Hui’s clinic
but before the last one.

They would say that Hui had told them that she had a
strange patient whom she suspected was not really
pregnant but might have a psychological problem, and that
she intended to induce her to submit to a physical
examination with a view to seeing what the real problem
was.

Apart from the testimony of these two, the excluded

evidence would have included Hui’s own evidence of the
conversations.

Hui applied for judicial review against the decision of the

Medical Council.

The issue to be considered by the court: Is there any breach

of the rule of fair hearing? 145
Decision of the Court of Appeal:

“It seems to be perfectly legitimate to take the view -

and indeed it may be inevitable to take the view - that a
doctor, in the management of his or her patients, will
sometimes consult colleagues.

The excluded evidence was to be a part of the

explanation which the appellant was offering for rather
strange conduct on her part, which certainly called for
an explanation.

What passed between her and her colleagues in regard

to WDPC Leung would be a part of a course of
dealings. And what passed between her and WDPC
Leung was likewise a part of that course of dealings.

146
In the circumstances, the evidence which was
excluded was admissible as part of the things done. Its
exclusion was therefore wrong in law.

Now, if evidence which was wrongly excluded was

incapable of making any difference to the result, then
of course its exclusion would not affect the result. But
it seems to me quite impossible to say that this
evidence could not have made any difference to the
result. …

Therefore, its wrongful exclusion is fatal to the

Council‘s finding against the appellant and to the
order made against her pursuant to that finding.”

147
Illegality

148
A decision is illegal if:

(a) it contravenes or exceeds the terms of the power

which authorizes the making of the decision; or

(b) it pursues an objective other than that for which the

power to make the decision was conferred.

In examining whether the decision-maker has strayed

outside the purposes defined by the enabling statute,
the courts enforce the rule of law which requires
administrative bodies to act within the bounds of the
powers they have been given.

149
Excess of Power

If an applicant challenges a decision as being illegal

because the decision-maker has acted in excess of his
power, the applicant is claiming that the decision-maker
has gone beyond the scope of the powers granted to
him. Thus, even if the decision-maker is acting so as to
achieve the overall purpose of the legislation which
confers power on him, he may only act within the limits
of his statutory powers. To do otherwise is to render his
decision illegal.

The concept of illegality due to acting in excess of one’s

powers sits squarely within the idea of ultra vires: the
decision maker must exercise only the powers which
have been granted to him by law. He may not act outside
of those powers. 150
Improper Purpose

Where a statute confers a power on a decision maker,

the decision maker must use that power for a purpose
intended by the power-conferring statute. If he exercises
the power to achieve a different purpose, the courts may
find that the decision made in the exercise of his power
illegal.

The courts have long upheld the view that a decision

will be illegal if it does not promote the proper purpose
for which the decision-making power was granted. In
doing so, the courts recognize that not only is the extent
of the power significant but the intention of the
legislature in conferring the power is also of relevance
when considering the legality of the exercise of that
power. 151
Relevant and Irrelevant Considerations

In order to exercise power legally, a decision maker

should take relevant considerations into account and
refrain from taking irrelevant considerations into
account when coming to his decision.

If an irrelevant consideration has been taken into

account, this will not automatically result the court
finding the decision to be illegal. Rather, the court will
consider whether the irrelevant consideration resulted
in the decision maker coming to a decision other than
that which he would have made had he not taken the
irrelevant consideration into account. In order to
determine what is a relevant consideration, the courts
will have regard to the power-conferring legislation as a
whole and the specific purposes for which the power
was conferred on the decision-maker.
152
Fettering Discretion

Fettering of discretion occurs when, rather than exercising its

discretion to decide the individual matter before it, an
administrative body binds itself to policy or to the views of
others.

Although an administrative decision-maker may properly be

influenced by policy considerations and other factors, he
must put his mind to the specific circumstances of the case
and not focus blindly on a particular policy to the exclusion of
other relevant factors.

Fettering of discretion occurs when a decision-maker does

not genuinely exercise independent judgment in a matter. This
can occur, for example, if the decision-maker binds itself to a
particular policy or another person’s opinion. If a decision-
maker fetters its discretion by policy, this can also amount to
an abuse of discretion. Similarly, it is an abuse of discretion
for a decision-maker to permit others to dictate its judgment.
153
Wrongful Delegation of Power

When the decision-making power has been

conferred upon a specific person, any decision will
be illegal if it is instead made by another to whom
that power has been delegated without lawful
authorization.

As a general principle, where power is conferred on

a named person or holder of an office, that person
should exercise the power granted to him, and no
one else.

154
Error of Law and Jurisdiction

Whether a decision-maker has jurisdiction to make a

particular decision will give rise to a consideration of
whether the decision-maker has acted within his
power, that is intra vires, and therefore legal. A
decision-maker may be deemed not to have
jurisdiction to act where he has in fact acted ultra
vires. He may have been ultra vires by virtue of
making an error as to the meaning and scope of the
relevant power conferring law.

If a decision-maker does not have jurisdiction to

make a decision, then any determination he comes
to will bee deemed nullity; that is, his decision will
simply not exist and therefore can have no effect. 155
Error of Fact

The traditional position had been that errors of fact

would not be reviewable by the courts, unless the
error of fact could be said to bring the decision
under challenge within the ambit of one of the three
established grounds for review: illegality,
irrationality or procedural impropriety.

If the error of fact under challenge could not be fitted

into one of these three traditional grounds of review,
then a mistake by the decision-maker as to a fact
traditionally would not of itself constitute a ground
for review, even if injustice occurred as a result.

156
Vallejos Evangeline Banao v. Commissioner of Registration and
Another [2013] HKEC 429

The appellants in Vallejos were two foreign domestic helpers who

have lived in Hong Kong for over 20 years. Article 24(2)(4) of the Basic
Law recognizes non-Chinese nationals as permanent residents if they
meet certain criteria, including if they have “ordinarily resided” in
Hong Kong continuously for at least 7 years.

Ms. Vallejos and Mr. Domingo had applied, unsuccessfully, to obtain

permanent identity cards. In refusing their applications, the
Commissioner of Registration relied on Section 2(4)(a)(vi) in the
Immigration Ordinance which states that foreign domestic helpers
shall not be treated as “ordinarily resident“, with the effect of
preventing them from becoming permanent residents. Ms. Vallejos
and Mr. Domingo challenged the constitutional validity of this
legislation, arguing that it is inconsistent with the meaning of
“ordinarily resided” in Article 24(2)(4) of the Basic Law.

At its heart, Vallejos called for (i) an understanding of the term

“ordinarily resided” used in Article 24(2)(4) of the Basic Law and,
applying that understanding, (ii) a judgment as to whether the
applicants in fact ordinarily resided in Hong Kong. If the applicants did
in fact ordinarily reside here, then the immigration legislation would be
invalid for inconsistency with the Basic Law.
157
CFA’s application of its understanding to the facts – helpers
are not ordinarily resident

Taking into account the various immigration controls imposed

on foreign domestic helpers, the CFA found it clear that their
residence is so far-removed from a traditional understanding of
ordinarily resident, as to justify concluding that foreign
domestic helpers are not ordinarily resident in Hong Kong.
Accordingly, it held the immigration legislation is consistent
with Article 24(2)(4) of the Basic Law and constitutionally valid.

Immigration powers under Article 154 of the Basic Law

The Court did not doubt the legality of any of the immigration
controls imposed on foreign domestic helpers, even though it
described them as “highly restrictive conditions”. It went on to
state that these conditions are consistent with Article 154(2) of
the Basic Law, which provides that the Hong Kong government
“may apply immigration controls on entry into, stay in and
departure from the Region”.

158
Article 154(2) unquestionably permits the immigration
control that helpers must return to their home country at
the end of each contract, as well as similar controls on
their entry, exit, and duration of stay.

In Vallejos, the CFA stated that Article 154(2) enables the

government to “impose conditions on the entry of a
person which will materially affect the quality of his
[lawful] residence in Hong Kong”. Expressed in this
way, Article 154(2) is a potentially powerful limit to
constitutional rights of non-permanent residents,
including and beyond the right of abode in Article 24. It is
important for the Court to indicate the limits of what and
whom the government can control as a matter of
“immigration”.

159
Irrationality

160
Definition
In the case of Council of Civil Service Unions v Minister
for the Civil Service [1985] AC 374), Lord Diplock said
that a decision would be irrational—and so unlawful—if it
were:

“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.”

161
Standard of test - Wednesbury unreasonableness test
The term came from the 1948 case of Associated
Provincial Picture Houses Limited v. the Wednesbury
Corporation. The test is:

“If a decision on a competent matter is so unreasonable

that no reasonable authority could ever had come to it,
then the courts can interfere… but to prove a case of
that kind would require something overwhelming.”

The standard was established as a direct result of the

court’s decision to only correct poor administrative
decisions on the grounds that they were fundamentally
irrational. Lord Diplock, the judge, stated that a decision
will only be corrected when 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 would have arrived at it.”
162
Standard of test - Wednesbury unreasonableness test
This unreasonableness test is usually applied to
applications for judicial review featuring a public
authority's decision. In order for a particular act to be
Wednesbury unreasonable, it must be true that no
reasonable person, who was acting in a reasonable
manner at the moment in question, could have possibly
performed the action. Acts which are deemed
Wednesbury unreasonable are thought to be irrational.

Should an act be deemed Wednesbury unreasonable, the

courts may be motivated to correct the act. Only the most
extreme cases of unreasonable acts can pass the
Wednesbury unreasonableness test, so very few courts
have acted to correct the initial decision of the public
official.
163
In the matter of the an application by Ko Mei Chun for
leave to apply for Judicial Review (1996, No. M.P. 1112)

The Applicant was a court reporter. She had been

awarded a long meritorious service certificate after 21
years of service. She was ordered to be compulsorily
retired with deferred pension from the civil service by the
Secretary for the Civil Service (公務員事務局局長). Her
alleged misconduct was failing to comply with her
supervisor's order to report to her supervisor's office for
duty in the morning and after lunch. That misconduct
lasted 2 months. The Applicant was among one of the few
court reporters who were required to report. There was
no evidence showing that The Applicant’s alleged
misconduct had in any way affected her performance as a
court reporter.

Was the decision of the Secretary for the Civil Service

valid? 164
The Court: “…it seems to me manifestly unfair and
unreasonable that the decision compulsorily to retire the
Applicant should be made. A consideration of the matters
which were admitted in the context in which they
occurred, should itself have given rise to a decision to
apply a less serious penalty.

Furthermore, the tenor of the findings and of the

evidence in relation to them suggest that the
investigation committee would not themselves have
concluded that these were, on these facts and in this
context, matters serious enough to justify the second
most serious penalty.

…In my view, it would be entirely unreasonable to impose

the second most serious penalty in respect of that
particular matter…in this case the penalty was wholly
disproportionate to the offence.”
165
Judicial review of administrative discretion

Discretion is the power or right to make official decisions

using reason and judgment to choose from among
acceptable alternatives. Administrative discretion means
to give a decision on a matter with various alternative
available, but the judgment should be with reference to
rules of reason and justice. The administrative discretion
should not be based on personal notions and fancies.

Legislation typically builds in an element of discretion:

the public body or government agency is given broad
parameters within which to act and is provided with
discretion to achieve the aims of their portfolio in the
best way the think possible.

166
Judicial review of administrative discretion

It would be impossible, impractical and inefficient for

legislation that delegates a power to a government
agency to spell out precisely the way in which that
agency is supposed to act and make decision.

The court have traditionally exercised caution in judicially

reviewing exercises of administrative discretion but
especially so where that discretion has been couched in
broad terms in the relevant legislation.

167
Types of administrative discretion
There are mainly 5 types of administrative discretion. Those are:

1. Individual Discretion – where the authority makes

individualizing decisions by applying general rule.

2. Executive Discretion – where the authority has the freedom to

fill gaps in delegate authority in order to execute assigned
administrative functions.

3. Policymaking Discretion – in this type of discretion the

authority has the power to take action for further general
purposes.

4. Unbridled Discretion – if no review is permitted, then the

authority conducting it would be considered to be exercising
unbridled discretion.

5. Numinous Discretion – where the decision cannot by its very

nature be reviewed, the agency is said to be exercising this
discretion.
168
The Abuse of Administrative Discretion
It is general rule that court should not interfere with the
administrative functions and actions taken by
administrative authorities in exercise of discretionary
power. But where the legislature has confided the power
to a particular body, with a discretion how it is to be
used, it is beyond the power of any court to contest the
discretion.

This does not mean that the administrative authorities

should possess unregulated and vast discretionary
powers. If they are left with vast discretion powers, it
leads to mal-administration, corruption, suppression and
atrocities over the poor people. Too much discretion
causes too much abuse of powers.

169
Grounds of judicial review over administrative discretion

There are different valid and reasonable grounds on

which the courts can interfere with the administrative
discretions. These are:

1. Failure to exercise discretion;

2. Excess or abuse of discretion; and

3. Violation of Fundamental Rights.

170
Failure to exercise discretion

If an administrative authority fails to exercise

discretionary powers, then the courts can interfere.
Generally there are 4 circumstances in which failure to
exercise discretion arises.

(1) Sub-delegation - A delegate cannot delegate. a person

to whom powers have been delegated cannot delegate
them to another.

(2) Imposing fetters on discretion by self imposed rules

of policy - The authority has discretion on certain general
policy. But he imposes fetters on policy to be applied by
it rigidly to all cases coming before him for decision.

171
Failure to exercise discretion

(3) Acting under dictation - The law delegated certain

powers upon certain administrative authority. He himself
should perform such actions. If he seeks the instruction
from any other person or from superior officer it
becomes bad in law. It is known as acting under
dictation.

(4) Non-application of mind - Where the discretionary

powers are vested in the executive, he must handle with
highest care, diligence, caution and responsibility. He
should not act with mere mechanically. He should apply
with his own mind according to the circumstances. If he
performs without due care and non application of mind,
then he comes under failure to exercise of discretionary
power. It is bad in law.

172
Excess or abuse of discretion
There are 9 circumstances in which excess or abuse of
discretion occurs. In fact all these circumstances overlap
with each other to a very great extent and run into one
another:

(1) Exceeding jurisdictions - The administrative authority

must act and use the delegate powers properly according
to the limits imposed by the parent Acts.

(2) Irrelevant consideration - An administrative authority

must use his discretionary power according to the
relevant consideration and not an irrelevant or
extraneous consideration. It means that power must be
exercised taking into account the considerations
mentioned in the statutes.

(3) Leaving out relevant consideration - Where the

administrative authority fails to take into relevant
considerations, then it becomes abuse of discretions.
173
Excess or abuse of discretion

(4) Mixed consideration - Sometimes the administrative

actions consists mixed consideration in particular
circumstances. Mixed consideration means it possess
partly irrelevant considerations and partly relevant
considerations. Under such circumstances, the court
have to weight, depending upon each circumstances of
each case.

(5) Bad faith - Where the administrative officer make a

decision with a deliberate and fraudulent motive and
dishonest intention, such a decision is made with bath
faith and is void.

(6) Improper purpose - The administrative authority must

use its discretionary powers for that particular purpose
only. It should not use them in any other manner and for
any other improper purpose.

174
Excess or abuse of discretion

(7) Colourable exercise of power - It means that under a

guise of power conferred for one purpose, the authority
is seeking to achieve something else which is not
authorized to do under the law in question.

(8) Unreasonableness - The administrative authority must

use its discretionary power with utmost reasonableness.
If it acts without reasonableness, the court can set aside
its order and action.

(9) Violation of principle of natural justice - In case of

violation of natural justice that is the resource of law in
giving a discretionary judgment over an administrative
matter, the Court has the power to go for a review of that
administrative process.
175
Violation of Fundamental Rights

Fundamental Rights
(1) Right to equality
(2) Right to freedom
(3) Right against exploitation
(4) Right to freedom of religion
(5) Cultural and educational rights
(6) Right to constitutional remedies

176
Proportionality

177
Proportionality has been described as meaning, in plain
English, “You must not use a steam hammer to crack a
nut, if a nutcracker would do.” It looks to the proper
means used to reach a particular end.

Proportionality requires that action taken by a public

body does not go beyond what is necessary to achieve
the objectives.

Broadly speaking, it necessitates an assessment of the

balance between interests and objectives. The decision
made must be proved to have been necessary to meet a
legitimate aim, and the most reasonable way of doing so.

178
A breach of the principle of proportionality can be used
as a ground for judicial review and in order to be
proportionate, an action must be appropriate, necessary,
and not impose an excessive burden on those affected
by it.
The three tests are:
1. Whether the measure was suitable to achieve the
desired objective;
2. Whether the measure was necessary for achieving the
desired objective; and
3. Whether, even so, the measure imposed excessive
burdens on the individual it affected.
The third element is the provision that requires balancing
of interests.

179
Application of proportionality test in Hong Kong

The application of proportionality test in Hong Kong is

confined to rights-based cases.

Proportionality test consists of three steps in Hong Kong.

The restrictions on rights they impose:

(1) are for a legitimate purpose;

(2) are rationally connected with the pursuit of such

legitimate purpose; and

(3) are no more restrictive than necessary to achieve that

legitimate purpose.
180
Right to freedom of expression

In HKSAR v Ng Kung Siu and Another (1999) 2 HKCFAR

442, the defendants had participated, in Hong Kong, in a
pro-democracy in China demonstration. They carried a
defaced PRC flag, as well as a defaced Hong Kong SAR
flag. The demonstrators were subsequently charged with
violating section 7 of the National Flag and National
Emblem Ordinance and section 7 of the Regional Flag
and Regional Emblem Ordinance.

Found guilty, the defendants appealed to the Court of

Appeal and won. The government then appealed to the
Court of Final Appeals (CFA), the highest court in Hong
Kong.

181
Right to freedom of expression

The issue before the CFA was whether the statutory

provisions which criminalized desecration of the national
flag and the regional flag were inconsistent with the
guarantee of freedom of speech under Article 27 of the
Basic Law and freedom of expression under Article 16 of
the Bill of Rights Ordinance.

The latter requires that any restrictions on the right to

freedom of expression must be “necessary” for the
prescribed purposes. After noting that the wider the
restriction the more difficult it would be to justify, the
CFA held that in applying the necessity test, the courts
must consider “whether the restriction on the right to
freedom of expression is proportionate to the aims
sought to be achieved”.
182
The requirement of necessity therefore involves the
application of a proportionality test.

The CFA held that national and regional flags are

important symbols of the PRC and the HKSAR,
respectively, and as such societal and community
interests were involved that had to be taken into
consideration. Although the Court considered such
limits on flag desecration as limits on the
constitutionally-protected right of free speech, these
limits were narrow, and the defendants could have
expressed themselves in other ways. Thus, the
“necessity” and “proportionality” tests of international
human rights norms had been satisfied.

183
Right of peaceful assembly

In Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229,

Leung Kwok Hung, assisted by Fung Ka Keung, Christopher
and Lo Wai Ming, led between 40 and 100 persons in a
preplanned peaceful procession from Chater Gardens along
Queensway, a public highway, to the then Police Headquarters
on nearby Arsenal Street on Sunday, 10 February 2002.

By virtue of section 13(1) of the Public Order Ordinance (POO),

a public procession of at least 30 people along a public
highway may take place in Hong Kong “if, but only if” notice
has been given to the Commissioner of Police (the
Commissioner) as required by section 13A, and the
Commissioner has issued, or is taken as having issued, a
notice of "no objection" in accordance with section 14.

Leung, Fung and Lo chose not to comply with the notice

procedures. The police allowed the procession to continue but
this did not prevent the procession from being an unauthorised
assembly by virtue of section 17A(2).' Section 17A(3) makes the
holding, and assisting in the holding, of an unauthorised
assembly criminal offences. Leung, Fung and Lo were
eventually arrested and charged with these offences. 184
All the defendants maintained that the relevant statutory
provisions of the POO were void for inconsistency with the
fundamental freedom of peaceful assembly guaranteed by
Articles 27 and 39 of the Basic Law of the Hong Kong Special
Administrative Region (the HKSAR Basic Law), Article 21 of the
International Covenant on Civil and Political Rights (ICCPR)
and Article 17 of the Hong Kong Bill of Rights (BOR).

This form of challenge alleges that the legislation itself creates

an unacceptably high risk of inhibition, suppression or
restriction of a fundamental freedom. Such a risk might be
caused by:
(i) overly broad or excessively vague coverage, penalising or
regulating much more protected fundamental freedom
activity than the legitimate purpose of the regulation
requires;

(ii) delegation of an overly broad or excessively vague

discretion to a case by case decision maker; or

(iii) the imposition of grossly disproportionate sanctions for

law infringements in the course of exercising the
fundamental freedom.
185
Right of peaceful assembly

The CFA had to consider whether the restrictions on the right

of peaceful assembly in the Public Order Ordinance were
consistent with Article 17 of the Bill of Rights Ordinance which
requires that any restrictions must be “necessary in a
democratic society” for a prescribed purpose.

As the legitimate purposes that may be pursued by any

restrictions on the right had been specified in Article 17, the
Court held that the proportionality test should be formulated in
these terms:
(a) the restriction must be rationally connected with one or
more of the legitimate purposes; and
(b) the means used to impair the right of peaceful assembly
must be no more than is necessary to accomplish the
legitimate purpose in question”.

The Court concluded that the Commissioner of Police’s

statutory discretion to restrict the right of peaceful assembly
for the purpose of “public order” satisfied the proportionality
test and therefore the necessity requirement of Article 17.
186
Legitimate Expectations

187
The Doctrine of Legitimate Expectation
The principle of the Legitimate Expectation means that
expectations created by the authority’s representation
or conduct have to be respected and fulfilled. And non-
fulfillment can have some serious legal consequences.

If a public authority has induced a person to rely upon

its representations or conduct, realising that such
reliance was a real possibility, it is under facie duty to
act in such a way that the reliance will not be
detrimental to the representee.

The authority must honour the expectations created by

its representation or, at least, compensate the person
affected for his reliance loss.

188
The Doctrine of Legitimate Expectation
When an individual seeks judicial review on the ground
of his legitimate expectation being defeated, Courts
have to first determine whether there existed a
legitimate expectation. A legitimate expectation is said
to arise “as a result of a promise, representation,
practice or policy made, adopted or announced by or on
behalf of government or a public authority.” Therefore it
extends to a benefit that an individual has received and
can legitimately expect to continue or a benefit that he
expects to receive.

When such a legitimate expectation of an individual is

defeated, it gives that person the right to bring an action
to challenge the administrative decision as illegal. Thus
even in the absence of a substantive right, a legitimate
expectation can enable an individual to seek judicial
review.
189
Procedural legitimate expectation
A procedural legitimate expectation by an individual or
group rests on the presumption that the decision-maker
will follow a certain procedure in advance of a decision
being taken. This expectation can manifest in various
ways, such as the expectation (a) of being consulted; (b)
of an inquiry being held; (c) of a fair hearing; and (d) of
being allowed time to make representations, especially
where the applicant is seeking to persuade an authority
to depart from a lawfully established policy.

The courts’ protection of procedural legitimate

expectations reinforces the notion that administrative
decision-makers should be bound by certain
representations which they make to individuals who
stand to be affected by their decisions.
190
Procedural Legitimate Expectation

The leading case in procedural legitimate expectation is

Attorney-General of Hong Kong v. Ng Yuen Shiu.

In this case, the applicant who was born in China entered Hong
Kong illegally from Macau in 1967. In 1967 he was removed to
Macau but re-entered illegally shortly after and subsequently
remained in Hong Kong. By 1980 he was the part-owner of a
small factory in Hong Kong.

In October 1980 the government announced changes in its

immigration policy. It abandoned its ‘reached base’ policy
whereby illegal entrants had been allowed to remain once they
had reached the urban areas without being arrested and it
stated that those who had entered illegally would be
repatriated. It gave power to the Director of Immigration to
make removal orders against such persons.

The announcement created fears among illegal entrants living

in Hong Kong who had entered from Macau and who were of
Chinese origin that they would be repatriated to mainland
China.
191
On their petitioning to the Governor, a senior immigration
officer made an announcement with the government
policy that each illegal entrant from Macau would be
interviewed and their cases treated on their merits.
Having undergone questioning by an immigration officer,
the applicant was detained and the Director of
Immigration then made a removal order against him
without giving him an opportunity to make any
representation as to why he should not be removed.

The applicant applied to the High Court for an order of

certiorari to quash the removal order and prohibit the
Director from executing it, but failed.

On his appeal to the Court of Appeal, he was granted an

order that prevented the Director from executing the
removal order until he had given the applicant an
opportunity to be heard. The Government appeal to the
Privy Council.

192
Their Lordships stated:

“…when a public authority has promised to follow a

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.”

In conclusion, their Lordships opined that the principle

that a public authority is bound by its undertakings
regarding the procedure it will follow, provided that this
does not conflict with their duty, is certainly applicable to
the undertaking given by the Government of Hong Kong
to the applicant in announcing that each case would be
considered on its merits.

193
Substantive legitimate expectation

A substantive legitimate expectation arises where a

public body makes a lawful representation that an
individual will receive, or continue to receive, a
substantive benefit of some kind.

In very famous English case Council of Civil Service

Union v. Minister for Civil Service, Lord Diplock, has
explained the doctrine of substantive legitimate
expectation as follows:

“The substantive part of the theory is that if a

representation has been expressly made that a benefit of
a substantive nature will be granted or if any person is
already in receipt of any benefit, it will be continued and
will not be substantially varied to the disadvantage of the
recipient.”

194
Substantive legitimate expectation

The substantive legitimate expectation doctrine commonly

arises in two scenarios:

The first is when a person who enjoys a benefit or

advantage argues that they expect that the benefit or
advantage will continue. In this instance, the substantive
legitimate expectation can effectively preclude a decision-
maker from exercising a discretionary power to revoke the
benefit or advantage because revocation is only permitted
in very limited circumstances.

The other scenario is when a person has not yet enjoyed a

benefit or advantage but argues that they rightfully expect
that it will be granted. In this instance, the substantive
legitimate expectation can effectively force decision-
makers to grant the benefit or advantage because the
court can require decision-makers to take account of both
the substantive legitimate expectation and the
circumstances upon which it is based.
195
The expectation induced by the representation must be objectively
reasonable

To qualify for protection-to be “legitimate” – the expectation of a

substantive benefit must be induced by the decision maker either (1)
expressly-by means of a promise or undertaking, or (2) implicitly-by
means of settled past conduct or practice.

In order for a representation to induce a legitimate expectation, it is

necessary to examine what the applicant is reasonably entitled to
expect.

A legitimate expectation is based on an objective analysis of what an

individual may reasonably expect, as opposed to solely what an
individual subjectively expects.

A legitimate expectation cannot flow from ‘some generalized

expectation of justice or what, in the context of the circumstances, an
applicant considers to be a wise course of action or one that is fair to
it’.

Whether an expectation is legitimate is a question for the courts to

determine, rather than the decision-maker or individual concerned.

196
Legal Consideration that affect the reasonableness
of an expectation

(a) the representor must be acting in a public law

capacity – in order for a representation to reasonably
induce a legitimate expectation, it is necessary that any
such representation is made by an authority exercising
public law power.

(b) The representation must be intra vires the authority’s

legal powers – the doctrine of legitimate expectations
cannot be used to make enforceable acts or decisions
that are ultra vires the authority. To do otherwise would
have the effect of unlawfully extending the decision-
maker’s legal powers.

197
Factual Consideration that affect the reasonableness
of an expectation

(a) The representation must be clear and unambiguous –

for an expectation to be reasonably held, it is generally
necessary that the representation relied on is clear and
unambiguous in its terms, and thus is devoid of relevant
qualification.

(b) The factual context surrounding the representation

and the foreseeability of any change in the authority’s
position – the factual context in which a representation
was made, and in particular whether the recipient could
foresee that the authority’s position would change in the
future, will have a major bearing on the reasonableness
of any expectation held.

198
Factual Consideration that affect the reasonableness of
an expectation

(c) Representee must know about the representation –

the applicant must have been aware of the representation
in order for any legitimate expectation to arise.

(d) Identifying the recipients of the representation – this

factor looks at who may reasonably be construed as
being the recipient of an authority’s representation. This
factor will be pertinent where an authority makes general
statements to an innominate class, it then being for the
court to determine who may reasonably assert a
legitimate expectation arising from such statement.

(e) Representee’s conduct – the applicant’s conduct may

have a bearing on the court recognizing and protecting a
legitimate expectation, particularly where the applicant
has failed to meet the conditions necessary in order for
the expectation to be fulfiled.

199
Substantive Legitimate Expectation

In Ng Siu Tung and Others v Director of Immigration, the

Court of Final Appeal delivered a landmark judgment,
holding that several representations made by the Hong
Kong Special Administrative Region Government in the
long-running right of abode saga had created substantive
legitimate expectations in certain classes of claimants,
and the failure of the Government to honour those
representations amounted to an abuse of power.

As a result, the removal orders were quashed and cases

were directed to the Immigration Department for
reconsideration.

200
Substantive Legitimate Expectation

Li CJ summarised the doctrine of substantive legitimate

expectation as follows:

"The doctrine recognizes that, in the absence of an

overriding reason of law or policy excluding its operation,
situations may arise in which persons may have a
legitimate expectation of a substantive outcome or benefit,
in which event failing to honour the expectation may, in
particular circumstances, result in such unfairness to
individuals as to amount to an abuse of power justifying
intervention by the court,…

…the doctrine is an important element in the exercise of

the court’s inherent supervisory jurisdiction to ensure,
first, that statutory powers are exercised lawfully and are
not abused and, secondly, that they are exercised so as to
result in administrative fairness in relation to both
procedural and substantive benefits…

201
Substantive Legitimate Expectation

…in the absence of any overriding reason of law or policy

excluding its operation, situations may arise in which
persons may have a legitimate expectation of a
substantive outcome or benefit, in which event failing to
honour the expectation may, in particular circumstances,
result in such unfairness to individuals as to amount to an
abuse of power justifying intervention by the court...

…a legitimate expectation arises as a result of a promise,

representation, practice or policy made, adopted or
announced by or on behalf of government or a public
authority.”

202
Substantive Legitimate Expectation

Li CJ further explained that the doctrine comprised four

elements:

1. The legitimate expectation arose from a promise or

representation, the expectation being that the promise or
representation would be honoured, that it should be
properly taken into account in the decision-making
process so long as to do so would fall within the power,
statutory or otherwise, of the decision-maker;

2. In the absence of reasons recognized by law for not

giving effect to legitimate expectation, effect should be
given, and if effect is not given, the decision-maker
should express their reasons so that they might be tested
by a court in the event that the decision is challenged;

203
Substantive Legitimate Expectation

3. even if the decision involved the making of a political

choice by reference to policy considerations, the
decision-maker must make the choice in the light of the
legitimate expectation of the parties, the failing of which
would usually result in the decision being vitiated by
reason of failure to take account of a relevant
consideration and thereby constituting an abuse of
power; and

4. It would only be in exceptional cases where the court

would be satisfied that the failure to take account of a
relevant consideration had not affected the decision. But
once the court is satisfied that this is the case, the
decision cannot be quashed.

204
Summary of substantive legitimate expectation

Generally speaking, the expectation may arise “as a

result of a promise, representation, practice or policy
made, adopted or announced by or on behalf of
government or a public authority”.

So where a public authority made a promise and

subsequently reneged upon the promise, resulting in
such unfairness to individuals as to amount to an abuse
of power, principles of good administration and fairness
require the public authority to be held to its promise
unless there are overriding reasons of public interest to
the contrary.

205
Human Rights
And
Judicial Review

206
System of Rights Protection in Hong Kong:

 Bill of Rights Ordinance (Cap 383) (BORO),

 Basic Law and

 The International Covenant on Civil and Political Rights

(ICCPR)

207
Rights in BORO and the Basic Law

Both the Basic Law and BORO contain a range of civil

and political rights such as the freedom of expression,
freedom of assembly, rights to a fair trial and equality.

Rights under BORO

The BORO is confined to what might be called civil and
political rights. Where an act of the Government or a
public authority constitutes a violation or threatened
violation of the BORO, the aggrieved individual may seek
remedies under section 6 of the BORO.

208
Rights under the Basic Law
The reach of Basic Law is wider, encompassing economic,
social and cultural rights also.

Article 35 provides that:

“Hong Kong residents shall have the right to confidential legal
advice, access to the courts, choice of lawyers for timely
protection of their lawful rights and interests or for
representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal

proceedings in the courts against the acts of the executive
authorities and their personnel.”

Whereas the first paragraph guarantees the right of “access to

the courts” and the right to “judicial remedies”, the second
paragraph specifically guarantees the right to institute legal
proceedings against the acts of the executive authorities and
their personnel. 209
Incorporation of the ICCPR by BORO and the Basic Law
Section 8 of BORO and Article 39 of the Basic Law purport
to incorporate the ICCPR. Both BORO and the Basic Law
refer to the ICCPR as applied to the HKSAR. In this
respect, any protection offered by the ICCPR through
BORO and the Basic Law is limited by what is applicable
in Hong Kong.

Rights under ICCPR

The ICCPR recognizes the inherent dignity of each
individual and undertakes to promote conditions within
states to allow the enjoyment of civil and political rights.
Countries that have ratified the Covenant are obligated to
protect and preserve basic human rights and compeled to
take administrative, judicial, and legislative measures in
order to protect the rights enshrined in the treaty and to
provide an effective remedy.
210
Assessing Restrictions on Rights: Justifying
Infringements

A common approach used by the courts when

considering whether an infringement of a right is justified
is to use some form of a proportionality test.

A common formulation of the proportionality test is:

(1) The restriction must be rationally connected with one
or more of the legitimate purposes; and

(2) The means used to impair the relevant right must be

no more than is necessary to accomplish the legitimate
purpose in question.

211
Application
for
Judicial Review

212
The application for judicial review is regulated under:

(1) Order 53 of the Rules of the High Court; and

(2) Practice Direction SL3 (Directions made by the Judge

in charge of the Constitutional and Administrative Law
List pursuant to O 72 r 2(3) of the Rules of the High
court).

Order 53 and the Practice Direction comprehensively set

out the procedures you should follow in this type of
application.

213
Cases appropriate for application for judicial review (O. 53, r. 1):

(1) An application for judicial review must be made if the

applicant is seeking—
(a) an order for mandamus, prohibition or certiorari; or

(b) an injunction under section 21J of the Ordinance restraining

a person from acting in any office in which he is not entitled to
act.

(2) An application for judicial review may be made if the

applicant is seeking—
(a) a declaration; or

(b) an injunction (not being an injunction mentioned in

paragraph (1)(b)).

(3) An application for judicial review may include an application

for an award of damages, restitution or the recovery of a sum
due but may not seek such a remedy alone. 214
Grant of leave to apply for judicial review (O. 53, r. 3)

(1) No application for judicial review shall be made unless

the leave of the Court has been obtained in accordance
with this rule.

Delay in applying for relief (O. 53, r. 4)

(1) An application for leave to apply for judicial review

shall be made promptly and in any event within three
months from the date when grounds for the application
first arose unless the Court considers that there is good
reason for extending the period within which the
application shall be made.

215
Mode of applying for judicial review (O. 53, r. 5)

(1) When leave has been granted to make an application

for judicial review, the application must be made by
originating summons in open court or, if the judge
granting leave has so ordered, to a judge in chambers.

Hearing of application for judicial review (O. 53, r. 9)

(1) On the hearing of any originating summons under rule

5, any person who desires to be heard in opposition to or
in support of the originating summons, and appears to
the Court to be a proper person to be heard, shall be
heard, notwithstanding that he has not been served with
the originating summons.

216
Issuing a claim
for judicial review:
checklist

217
Always take into consideration whether judicial
review is the relevant procedure?

Remember to consider the following:

Does the claimant have sufficient legal standing
before a court to proceed by way of judicial
review?

Have all other avenues of appeal or alternative

remedies been exhausted? Judicial review
should only be used where no adequate
alternative, such as a right of appeal, is
available. The court's view is that litigation
should be a last resort and an application can be
refused on the basis that an alternative remedy
is available.
218
Is the decision, action or failure to act that of:
(a) a public body; or
(b) other body exercising a public function.

The public/private law divide is blurring. The court, when

deciding whether a body is a public body for the
purposes of judicial review, will examine the functions
that it performs and whether those functions have public
law consequences.

The court will also consider:

 Is there a reviewable act or omission by the public
body?
 On what ground might it be challenged?
 When would be the right time to challenge?
 What will judicial review achieve?
 Can the outcome be achieved by other means, such as
discussion or negotiation?
 Is there scope to make a complaint under a public
authority’s complaints or review procedure or to the
relevant Ombudsman? 219
 What type of order is required? The orders available include:

(1) a mandatory order requiring the public body to do

something;

(2) a prohibiting order preventing the public body from

doing something;

(3) a quashing order quashing the public body's decision;

(4) a declaration; or

(5) damages

220
221