Administrative

Law

Tutorial One.
 Tutorial members:

❏ Seunghee Lee 56980766

❏ Vanessa Chiu 57146130
❏ Zhou Zhaojing (Sandra) 57127114
❏ Singh Atar
 Outline of the tutorial :-

1.
What are the major concepts of
judicial review?

2.
What are the major difference between the
approaches of the Administrative litigation
Law of PRC
and the judicial review of common law?
1. The major
concepts of Main speakers:

judicial review
Seunghee Lee & Vanessa Chiu
First Speaker: Seunghee Lee
Before judicial review,
What is ‘Administrative Law’?

2) Law regarding
1) Straightforward 3) Full of principles and
procedures
formulas.

For example, when the government builds lecture halls and performs its duties, the
legislators must monitor the checks and balances and how the government allocates
money and uses it.
The development of ‘Administrative Law’

10 years later

In the UK, the King was considered to
Do No Wrong.
But after the revolutions, the king
could Do Wrong.
In 1947, they started to have the
Crown Proceedings Act.
HK copied this in the name of Crown
Proceedings Ordinance (1957).
This is the earliest history of Administrative
law (the very traditional start point is when
the university professors began to sue their
university presidents).
‘Administrative Law’ deals with :-

Justice Procedures

Administrative
Law

Public decision
Judicial review makers

*Note: It does not deal with whether the decision is correct or not,
but whether the decision makers have properly followed the procedures,
and whether it is lawful or not.
Public decision makers may refer to
1. Statutory procedures required in
the ordinance
2. Common law procedures - this is
where many public authorities are
trapped, as they must obey the procedure
although it is not written in the ordinance.
Thus, a public party or body must first
read the ordinance, then read the
common cases.
‘P’s to remember :-
Public
Public funded
Procedures +
Public Public
interest function
Introduction - Judicial Review
Before moving on to the
1) Traditional; and
2) Modern Judicial Review,
What is a jurisdiction?
Jurisdiction: the scope of
power or administration
provided.
Introduction - Judicial Review
The court, although it is not itself a reasonable 3rd party, must
view in the eyes of the reasonable 3rd party.
In other words, it must consider not what is the best decision, but
whether the decision has properly gone through the best
procedure.

Hence, they care about both

a) the conflict of interest between human relations, and
b) the right to be heard, especially in the case of an adverse
interest.
 Adverse Interest - the right to be heard
Classical Example:
Government is building a trash station in an area. Hence, the residents,
students and staffs nearby the area are all affected negatively, or adversely.

The affected interests may include: environment, health, price of housing, and
also reputation. Therefore, consultations (right to be heard) must be fairly
conducted.
*The interest can be either private or public, or both.
Failure to exercise / Abuse of discretion

- Nonfeasance (no act) - Although there is a

saying “no act, no fault”, the law at some times
requires the public authority to act. e.g. you
should consult a party, but in fact, you did not.

- Misfeasance (misconduct) - e.g. Presenting an

exhibition of the Yau Ma Tei Fruit market in
Causeway Bay. One must always consider
reasonably in the third person point of view.
Locus Standi - proximity of interest
(and its two interests: adverse affected, sufficient interest)
- One must be the affected party. It must be the one’s interest, not the other’s.
- One from a completely different area can not sue.
- One who is not affected can not help.
Interest must be adversely affected:
- Interest (financial/ health/ reputation/ career development) must be sufficient or
substantial enough.
- whether it is substantial or not is decided by a 3rd reasonable man test.
- The standing: The court examines what damage the affected party had gone through.
Public authorities / Decision makers -
Who are they?

➔ Government / publicly funded bodies

➔ Statutory bodies governed by ordinance e.g. CityU Ordinance, RTHK Ordinance, etc.
➔ Non-statutory public bodies - public money, public function, subject to public scrutiny (legco),
public companies, etc.
➔ Inferior courts (Magistrate / District Courts)

e.g. The Gary Cheng Kai Nam case illustrated that a sleeping district court can be challenged.

Chief Executive and Chief Executive in Council (e.g. HKTV case)

How? (Grounds of judicial review)
Examine [who / whom / how / when / what]
when dealing with judicial review.
e.g.
Who is adversely affected?
Whom the decision is made by?
How does it fall into the judicial review?
Now, the mic will be tossed to my
groupmate Vanessa, for the further
explanations of :-
- Ultra Vires
- the grounds of Judicial Review
using the traditional and
modern classification
- Natural justice.
 Ultra Vires Doctrine
Ultra Vires Doctrine:
To venture beyond the scope of authority delegated to the decision maker.
Authorities who violates this doctrine would be subjected to judicial review, with the
consequences being:
● Decisions pronounced void
● Decision makers ordered to fulfill their duties
The consequences are discretionary.
2 types of Ultra Vires:
● Substantive: making a wrong decision
● Procedural: using the wrong procedures in making a decision regardless of the
outcome
 Grounds for JR - Traditional Classification
Traditionally, there are multiple ways for the Ultra Vires doctrine and the subsequent
Judicial Review to be raised.

1. Want (lack) of Jurisdiction

● eg. making the decision for the wrong department
● Delegates who have no jurisdiction in the matter
but made a decision

2. Excess of Jurisdiction

● Acting beyond one’s authority, with the decision exceeding

the power that has been delegated to the decision maker by
law
● The decision maker should not achieve what the delegating
ordinance did not grant them to do
 Traditional Classification
3. Error on the face of the record

● Category of mistake which is not as serious but obviously wrong

● Courts will intervene when the proceedings contain legal mistakes
on its face, with so much certainty that no other evidence is
needed

4. Breach of Natural Justice

● The fundamental rule is that a decision maker shall not be

biased and that those whose interests have been
adversely affected by judicial and administrative actions
have the right to be heard.
● 2 limbs of natural justice.
 Traditional Classification
a) Avoiding conflict of interest

Nemo judex in causa sua, meaning no one may be a judge in their causes. The decision
makers’ interests should not be taken into deep consideration and decisions must be
made honestly and not to the advantage of the decision maker.

● There are normally 2 types of conflicting interests that can be considered

● Similarly, a third reasonable minded person is chosen by the court to determine
whether there is a breach of natural justice regarding conflict of interest.
 2 types of conflicting interests
1. Financial or Pecuniary interests: on NO
2. Personal friendship or other
account should they be considered
relationships: can be permitted
● Classic case: Dimes v Grand Junction Canal
(1852) ● Will only be nullified when there is
● Facts: the Lord Chancellor sat on appeal in a reasonable suspicion of bias (eg.
case where he had a substantial amount of employing a family member).
shareholding in defendant’s canal. ● The bias need not be actual and can be
● Held: Even though there was no evidence a mere presumption.
that the Chancellor was influenced by his ● This presumption can be avoided
interest, he was disqualified from sitting at through a written declaration of
the case. interests

→ No case should be decided by a judge with a

financial interest in the outcome
 Traditional Classification - Natural Justice
b ) Second limb: Providing the Right to be Heard

Audi Alteram Partem means hear the other side. Any person whose interest had been
adversely affected by the decision has the right to present their views.

Fundamental rule by Lord Denning in R v Race Relations Board ‘if a person is

subjected to pains or penalties, or deprived of remedies or redress, he should be
told the case against him and be afforded a fair opportunity of answering it.’

Right to be heard is a fundamental procedure.

Any decision maker who skips this step will be subjected to JR.
 Grounds for JR - Modern Classification
The modern classification became more recognised after Lord Diplock identified the
categories for grounds for Judicial Review in Council of Civil Service Unions v Minister
for the Civil Service.

4 identified grounds of JR:

1. Illegality / Unconstitutionality
2. Irrationality
3. Procedural Impropriety
4. Irrelevant Factors
 Modern Classification
1. Illegality / Unconstitutionality
● Breaching procedures that are required in an ordinance or statute
● Misinterpreting the law or making a decision based on misinterpretations
● Failing to do what has been required by the law (omissions)

Unconstitutionality - used in common law jurisdictions with a written constitution, used

in cases where constitutional laws (such as the Basic Law) is breached

2. Irrationality
● Unreasonable exercise of discretion (power delegated can be both wide or narrow)
● If the applicant can prove that no other reasonable person would arrive to the same
decision as the decision-maker, applicant (with locus standi) wins
● Can be rebuted by finding a supporting professional and reputable opinion
 Modern Classification
3. Procedural Impropriety
● Breaching procedures that are established / recognised through long term practice
and conventions regardless of the decision itself
○ Case: Re Ngai Kin-wah (1985)
○ Facts: applicant was charged before a disciplinary tribunal and was prevented
from providing witnesses even though it was common ground to do so
○ Held: It was a denial of justice and was a form of procedural impropriety

4. Irrelevant Factors
● Making decisions based on irrelevant criteria
● case: Wong Chik Wai, Short v Poole Corporation (Red Hair case)
○ Wong Chik Wai: relied on a survey done by locals to decide whether a massage
license should be granted to capplicant
○ Short v Poole: teacher dismissed because of red hair colour
 Note: ALL stands for Administrative Litigation
Law of the PRC.

Question 2 Speakers: Sandra for part I

Atar for part II

Major differences between the
approaches of the Administrative
litigation Law of PRC and the judicial
review of common law
Overview of Differences
Common law Chinese law (civil law)
Role of precedents stare decisis not binding; refer to legislation & model
cases

scope of administrative broad, inexhaustible specifically defined by the ALL

matters

Grounds for judicial review broad, general, identified both narrow and limited by the ALL
by statutes and common law
practice

JR limitations constitutional limits specific administrative act vs. abstract

administrative act; art. 12 of the ALL

Administrative discretions limited by broad JR limitations broad, the court must fully observe the
need

Approaches to judicial classic & modern classification 5 criteria to examine the

review reasonableness of admin acts.
Difference 1: Role of Precedents
● Judicial Precedents (Anli) do not have a binding legal effect in China
○ As it is with many Civil law jurisdictions in which the codification of the law serves as the main
reference point for judges
● Hong Kong is a common law jurisdiction
➢ Precedents have a legally binding effect on lower courts ( Stare decisis)
Difference 2: broad & unlimited administrative matters (Common law)

● A wide range of state activities are classified into acts of an administrative

character, which sometimes extend beyond the managerial or executive
functions of the state. ( The opposite can be seen in the PRC as acts are
specifically identified)
● The rule for classification broad and not codified which has resulted in broad &
unlimited administrative matters
 Difference 2: Specifically identified administrative acts (PRC)
● The administrative acts includes:
● 1) administrative regulations(行政法规) issued by the State Council and administrative decrees(行政规章)
by the designated administrative authorities. Both have the powers to enact regulations & decrees with a
general legal binding effect;
● 2) administrative orders(行政指令): the decisions by administrative authorities regarding the internal
discipline of organizations.
● 3) decisions(决定) on administrative matters and resolution(决议) for implementing policies and decisions;
● 4) directives(指示): verbal or written instructions by higher administrative authorities addressing lower
authorities
● 5) official replies(批复): official, written reply from superior bodies to the subordinate ones;
● 6) notifications: sent out by an administrative authority to a third party; usually part of the administrative
procedures, also known as “通告”(public notices), “通报” (administrative circulars), etc.
● 7) acceptance of a case(受理): an administrative authority’s decision to accept a case for further
administrative actions;
● 8) attestation(证明): the act of an administrative authority to attest to the legal status of a third party, or
● to certify the status of a legal fact, or to clarify the status of the legal relationship of the person/parties
concerned;
● 9) rectifications(确认): the act of an administrative authority to rectify the legal status of a third person, the
status of a legal fact, or the legal relationship of the person/parties concerned.
Difference 3: Grounds for Judicial Review (Hong Kong)

Modern Classification
Traditional Classification
1. Illegality
2. Irrationality 1. Lack of Jurisdiction
2. Excess of Jurisdiction
3. Procedural Impropriety
3. Error on the face of the record
4. Irrelevant Factors 4. Breach of Natural Justice
Difference 3: Grounds for Judicial review (PRC)
Article 12 of the Administrative litigation law of PRC

1. Complaint against administrative punishment

2. Against administrative compulsory measure
3. Against an administrative agency’s denial of failure to respond within the statutory period to licensing application or administrative
licensing decision made by the administrative agency
4. Against an administrative agency's decision to confirm the ownership or the right to use any natural resource
5. Against a decision or decision on expropriation or requisition or a decision on compensation for expropriation or requisition
6. Against an administrative agency’s refusal to perform its statutory duties and responsibilities
7. Against an administrative agency that has infringed upon the plaintiff’s autonomy in business management, right in the contractual
operations on rural land, or right in operation on rural land
8. Against an administrative agency that has abused its administrative power to preclude or restrict competition
9. Against an administrative agency that has illegally raised funds or apportioned expenses or illegally required performance of other
obligations
10. Against an administrative agency that has failed to pay consolation money, minimum subsistence, social insurance according to the law
11. Against an administrative agency that has failed to perform according to the law or as agreed upon, or illegally modified or rescinded,
an agreement, such as a government concession agreement or a land and building expropriation compensation agreement.
12. Against an administrative agency that has infringed upon personal rights, property rights or other lawful rights and interests.
Difference in Grounds - Conclusion
● The grounds for Judicial Review in Hong Kong are more broad and general
● The grounds for Administrative litigation in PRC are more narrow and limited
by the Administrative litigation law of the PRC.
Difference 4: Limitation on Judicial Review (Hong Kong)

● Constitutional Limits on Judicial review

○ Decisions made by the National People’s Congress and the Standing Committee of the National
People’s Congress as well as legislative acts are not subject to judicial review on basis of lacking
conformity with the basic law.
○ As seen in the act of state cases, e.g. the Congo case
Difference 4: Limitation on Judicial Review (PRC)

● Article 2 of the ALL states that abstract administrative acts(policy-making acts)

cannot be subject to judicial review in court, whereas specific administrative
acts(law-executing acts) can.

● Only when a specific “adverse effect” rises from a specific legal relationship
between the State and a private individual can People’s Court intervene.
Abstract administrative act
● It creates nothing more than a general relationship between the State and
citizens.
● It establishes the legal authority for administrative authorities to enact binding
rules and regulations.
● The power to judge the appropriateness of an administrative act is vested in the
higher administrative authorities rather than judicial reviews.
● An abstract administrative act can only be reviewed in the National People's
Congress. it was seen as a legislative-sovereign act, which is subject to no
higher authority.
Limitation on judicial review: Article 13
● States that the People’s Court shall not hear cases in respect of:
● (1) acts of State pertaining to such matters as national defense or diplomatic
relations; (essentially political matters)
● (2) administrative rules and regulations, articles and by-laws or generally
binding decisions or orders formulated or issued by administrative authorities;
● (3) decisions of administrative authorities on matters such as reward and
punishment and appointment and dismissal of personnel; and (internal
administration matters)
● (4) specific administrative acts that are stipulated by law as to be finally decided
by administrative authorities
Article 13(2) & (4) of the ALL truly limit the scope of judicial review.
Difference 5: administrative discretion (Hong Kong)

● Due to the broad administrative act, administrative discretion has grown to

accommodate this.
● The problems are too diverse and individually specialized
● The administrators have a bureaucratic supremacy in terms of professional
knowledge, field expertise and a high degree of division of labour. The
discretion allows them to be creative and free from rigid behavioral patterns

● The discretion should also be exercised reasonably, in good faith, on proper

grounds and in accordance with the principles of natural justice. In other words,
it must not be abused.
Difference 5: broad administrative discretion(PRC)

● In Chinese law, to facilitate managerial flexibility in policy choices, the Court

must fully observe the need for administrative discretion. (Xingzheng Zhifa Yu
Xingzheng Susong)
● The Administrative Litigation Law of PRC allocates free discretion in
policy-making level, subject to neither limits nor control over the exercise of
discretion.
Difference 6: the manner of examining the reasonableness of
administrative power (PRC)
● In Chinese law, in requiring the reasonable exercise of power, an administrative
act will be struck down if one or more of the followings are met:

1) The principal evidence is insufficient;

2) The application of laws and regulations is erroneous;

3) The legal procedures were violated;

4) A decision exceeded authority or;

5) An abuse of authority by an administrative authority.

Difference: 1. review on evidence
● Review on competent evidence which is legally admissible and tends to prove
the matter in dispute.
● Review on the clarification of matters, which through a process of analysis and
abstraction from facts determines the legal nature of an administrative act and
hence the applicable rules of law
Difference: 2. review on the application of law
● The People's Courts are obliged to ensure that administrative authorities are
applying rules and regulations legally.
● Lin Jianxiong v. Fuxin Weisheng Ju provides further guidelines for imposing
penalties:
(1) To minimize administrative impropriety, the court held that an administrative
penalty can be imposed only on acts specifically defined as punishable by law.
(2) Secondly, the same act cannot be punished twice.
(3) Thirdly, the form of an administrative penalty must be in full accord with those
specified by administrative authorities.
Difference: 3. review of procedure
● Similarly, the administrative impropriety is often associated with procedural
irregularities.
● The difference comes where the Chinese law does not include a clause
requiring that a person or body exercising governmental or other type of power
should allow the adversely affected party to present a case before or after the
performance of some administrative or other act.
● In Xia Mingbao v. Huangxu Village Government, it was held that the Village Govt’s
demolition order was improper as it failed to bring a court action before doing
so. It shows that the rule of procedure regularity is not seriously observed.
Difference: 4. review on Ultra Vires
● The courts have included within their judicial review, acts falling outside the
statutory powers of the administrative authorities, and unauthorized acts.
● In Zheng Fuguang v. Tudi Guanli Ju, the Daiji Village Government had issued a
permit without legal authority, and therefore the permit was invalid.
● In Li Chuanyi v. Dongsha Xiang Zhengfu, it states that an authority must not act in
a bad faith, including wilfully ignoring the legal procedures and maliciously
performing the administrative acts.
Difference: 5. review on abuse of power

● In Li Jun and Li Tong v. Gongan Ju, it was held that in the course of performing an
otherwise lawful act, the officers abused their power by applying unnecessary
and unreasonable force.
● The case concerning the Department of Transport in Xian City involves
improper acts of individuals at different levels of the hierarchy in administrative
authorities. It shows the problem that hierarchical supervision originally
designed to monitor discretion has turned out to be a reinforcement of abuse of
power.
Thank you!