Administrative Law

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 Table of Contents

Basic facts Whom does Who is the The

the decision decision concerned
affect? maker? decision

Possible Time limit Possible Conclusion

grounds remedies
 01
Basic facts
 Case Facts
The Journalist Department of X University has a publication called “ Critique ”. “Critique” has
regularly published articles by different academics and reporters criticizing the Education System
in Hong Kong. In the year of 1985, “ Critique ” has published an article criticizing the Council of
X University for their ineffectiveness.

The Council Chairman of X University was very angry and without consulting other Council
members, made a decision forbidding the further publication of “Critique”. The Council Chairman
forbidden all the activities in the office of “ Critique” without consulting the Journalist
Department, the editors of “ Critique ” and all the concerned parties. As a result, students and
staff of the Journalist Department boycotted the Council.

Please advise on the chance of judicial review.

For your information, X University is governed by X University Ordinance in Hong Kong.

 Definition of Judicial Review
Judicial Review (JR)
● Review by a judge of the Court of First Instance of any exercise, or any
refusal to exercise, of any public decision-making powers and the
legality of legislation.

Purpose:
● Determining whether a decision is lawful and valid.
● For the court to supervise how Government officials or other public
authorities exercise their powers or carry out their duties.
 Basic Requirements of JR

01 02 03
Whom Who How
Who is the affected Who makes the How is the decision
party? decision? made?

04 05
When What
Time for the JR What are the remedies?
 02
Whom does the
decision affect?
 Locus Standi
● Test of Proximity
- Must show that he has sufficient connection in applying JR.
→Is the person given the right to bring a case for judicial review?

Two features:
1. Is the party’s interest adversely affected?
2. Whether there is sufficient/substantial interest – a sufficient connection
to the harm from the decision? Can be financial, reputation, career etc.

Issue:
● Whether the related parties of Critique have a locus standi?
 Adversely affected?
● The interest must be adversely affected,
● And the applicant must be an affected party in which his/her interest is
harmed directly by the decision made.

Application:
● In our case, the decision made by the Council of X University is to forbid the
future publication of “Critique” and all activities in the office of “Critique”
● It violates the right of freedom of expression and publication to students,
staff and related parties.
● Hence, the interests of the related parties of “Critique” are adversely
affected by the Council’s decision.
 Sufficient interest?
IRC v National Federation of Self-Employed and Small Business
● Standing will generally be determined alongside the merits of the case.
● The Court should refuse locus standi to anyone who appears to be a mere
busybody or mischief maker.

● Where a group can demonstrate that some or all of its members are personally
interested in the decision, locus standi will be found.
---R v HM Inspectorate of Pollution ex parte Greenpeace Ltd (No 2)

● Hence in Lee Miu Ling v Attorney General (No 2), the applicant who wasn’t a
member of any functional constituency, had no locus standi to challenge the
disparity in the voting power among those constituencies.
 Application
● “Critique” has been regularly publishing articles by different academics and
reporters.
● “Critique” is also a publication of the Journalist Department of X University.

● Hence, it is obvious that the relevant parties of “Critique”, such as its

editors as well as the students and staff of the Journalist Department have
personal interests in the decision.
→Sufficient interest and sufficient connection to the harm from the
decision.

● Conclusion: All the related parties of “Critique” should have locus standi.
 03
Who is the
decision maker?
 Public Authorities
● Parties subject to JR?

● Four types of Public Authorities:

1. Government or Public-funded organizations
2. Statutory bodies
→Organizations governed by an Ordinance.
3. Non-statutory bodies
→Public function, public money, subject to public scrutiny…
4. Inferior courts
Issue:
● Whether the Council of X University can be identified as a public authority?
 Definition of Public Authority
Hong Kong Polytechnic University v Next Magazine Publishing Ltd [1995]

Facts: Next Magazine has published an article questioning the qualifications of an

academic staff of the Polytechnic University and their terms of appointment.

Polytechnic University sued for defamation, however; Next Magazine argued that
the court should not allow the University to sue on such basis, as it acts against
the right to freedom of the press under the Bill of Rights Ordinance.

Issue: Whether Polytechnic University is a public authority?

 Cont.--Public Authority
● Decision:
- The University is a public authority and it had the right to bring legal action
against the magazine to protect its reputation.

Test to determine a public authority:

1. Act for public benefits and not for private profits,

2. Are wholly or partially publicly funded, and

3. Are subject to a degree of government supervision and public scrutiny.

 Application
● X University is governed by X University Ordinance and hence, it should be a
statutory body.

Although we do not know the precise terms of the Ordinance,

● CityU is subject to the City University of Hong Kong Ordinance (Cap.1132)
- Capable of suing and being sued. (Art. 3)
- Establishment and authority of an University Council. (Art. 9)
- Provide for studies, training and research and development in different
subjects of learning.
→Acting for public benefits and subject to public supervision.
→Partially publicly funded.

● Conclusion: X University should share common features and be assumed as a

public authority subject to JR.
 04
The concerned
decision
The concerned decision
1. The Chairman forbidding the further
publish of Critique; and
2. Forbidding all of the activities in the
office of Critique

WITHOUT prior consultation from the Journalist

Department, the editors of Critique, other members
of the council and all other concerned parties
 05
Possible
Grounds for JR
 Traditional Grounds for JR
1. Lack of Jurisdiction Making certain decision that is out of your
scope of jurisdiction

2. Excess of Jurisdiction Making certain decision within one's scope of

jurisdiction but not within one's power

3. Error on the face of the record An obvious mistake

4. Nonfeasance Fail to do something that you are supposed

to do

5. Misfeasance An abuse of discretion

6. Rule of Natural Justice Two limbs: right to be heard + no conflict of

interest
 Misfeasance
Q. Whether the Council Chairman abuse his/her discretion on the decision of
forbidding the further publication and all the activities in the office of “Critique” ?
● According to the facts, the chairman was angry about
the passage, and made the decision of forbidding the
publishments and activities of Critique himself.

● There could be a misfeasance if strong evidences are

provided to proof the casual relationship between
Chairman’s anger and Critique’s deprivation of rights,
on the condition that no reasonable reasons are
provided for the decision.

● Might be a rather weak ground as the outcome greatly

depends on the facts; and there are stronger modern
grounds like bias/ irrationality.
Rule of Natural Justice: Definition
● requires that a person should
receive a fair and unbiased
hearing before a decision is
made that will negatively affect
them

● A principle to ensure the

procedural fairness and that a
fair decision is reached by the
decision-maker
 Rule of Natural Justice: 2 limbs
1. To avoid conflict of 2. To provide the affected
interest parties the right to be heard
 Rule of Natural Justice (Cont’d)
● To provide the affected parties the right to be heard (audi alteram partem):
○ each party is entitled to a fair hearing and given the opportunity to respond
to evidence against them.
○ a decision cannot stand unless the person directly affected by it was given
such opportunity both to state his case and to know and answer the other
side's case

Board of Education v Rice 1911:

The HL (Lord Loreburn) established that there is a duty on a decision maker to act in
good faith and listen carefully to both sides.
 Rule of NJ: Application
Applying to our case:

1. The Council Chairman forbidden all the activities and further publication of “Critique”
without consulting the Journalist Department and the other Council members

2. As the affected parties, the concerned parties in the Journalist Department did not get
the chance to present their case and the right to be heard.

3. Therefore, the Chairman’s decision is a breach of natural justice and the right to be
heard. The Journalist Department could apply a JR on the ground of the Chairman
breaching the principle of natural justice.
 Rule of NJ: Type of cases
3 types of cases:

1. Forfeiture cases
→ Taking away one’s existing right (Eg. livelihood)
[ eg. Council of Civil Service Unions and other v Minister for the Civil Service (GCHQ) 1984 ]

2. Applicant case
→ Apply for rights that applicants do not have yet or enjoyed
[ eg. Wong Chik Wai (1986) ]

3. Legitimate expectations/ Lawful expectation case

→ A change of existing policy adversely affecting people’s existing right
[ eg. GCHQ 1984 ]
 Rule of NJ: Application
● The current case is a forfeiture case

a). forbidding on all the activities in b). forbidding on Critique’s

Critique’s office further publication
Conclusion:
Two existing right of the Critique were deprived/ taken away by the decision of the Council
Chairman, which suffice as a forfeiture case.
 Rule against bias: Definition
● There should not be any conflict of interest in making a
decision.
→ A hearing will not be fair if the decision maker is biased.

● There will be a biased hearing when,

1. Excessive interference with the proceedings,
2. Expressions of hostility against one of the parties.
→ Hostility & Hatred
 Types of Bias
1. Actual bias
● No one can make decision concerning himself/herself!
● The decision maker is prejudiced in reaching his decision so that he
holds in favor of or against a particular party.
● Rare case, as it is difficult to prove an actual bias.

2. Apparent bias
● Real likelihood of bias or a reasonable suspicion of bias.
● Concerns the probability of bias.
 Cont. --Apparent Bias
● Exp Barnsley v District Licensed Victuallers Association [1960]
- 3rd reasonable man test
→“The impression which would be given to other people..”
→ What a “right-minded persons would think that in the
circumstances.”
→Objective test

● The test is “what the fair-minded and informed observer would have
thought, and whether his conclusion would have been that there was
real possibility of bias”. —Magill v Porter [2002]
 Apparent Bias: Application
● The Council Chairman of X University was very angry about the article and
made the decision without consulting other Council members and the
Journalist Department.

● A right-minded person will see this as a reckless decision and there is an

apparent likelihood of bias due to the Chairman’s anger.
→ Expressions of hostility against one of the parties leading to a biased
decision.

● Conclusion: There can be a real likelihood of apparent bias by the Council

of X University.
Modern Grounds for JR

1 Procedural impropriety

2 Illegality

3 Irrationality

4 Irrelevant factors
Modern Grounds: Procedural Impropriety
● Definitions:
- Failure to observe basic law of natural justice
- Failure to comply with any procedural requirements set out in
statute
- Failure to maintain procedural fairness.
● Two pillars:
- Rule to be heard
- Rule against bias
 Evidence for the decision?
Chan Tak Shing v Chief Executive of the HKSAR
● Duty for the decision maker to provide adequate disclosure of materials and
information that are relevant to the decision-making process.

- Duty to give reasons for the decision

Aylesbury Mushroom case
- Fundamental requirement that If a person’s interest is affected by a
judicial or administrative decision, that person should have the
opportunity to know and to understand any allegations made, and to
make representations to the decision.
→Natural justice principle has to be followed.
 Application
● The Chairman of the Council made the decision
without consulting other Council members and
informing the Journalist Department.
● Relevant evidence supporting the decision and the
reasons for the decision are not provided by the
Council Chairman to the affected parties.
→Procedural fairness is not maintained.
 Non-compliance with statute
● Whether the decision is made in compliance with procedures prescribed
by the University Ordinance? Is the Council authorized to do so?

● Info. regarding the University Ordinance not given,

For example, University of Hong Kong Ordinance (Cap.1503) (Art. 7)
→ “Council may exercise all the powers and is to perform all the duties of
the University other than those vested or imposed by…some other
authority of the University”.

● By analogy, the Chairman made the decision without consulting other

Council members and the Journalist Department.
→The decision of an University Council should not be such reckless and
subjective.
→Chairman’s decision is not in compliance with the Ordinance.
 Modern Grounds: Illegality Definition
● Ensure public authorities act within the scope of their powers
● A public body is NOT permitted to act beyond the scope of its power and duties
(which may be defined by applicable legislation)

The public authority Or if it does have the

LACKS THE POWER to power, the power has been
make the decision in the exercised INCORRECTLY
first place A body acts
beyond their prescribed
powers (Ultra Vires)
 Modern Grounds: Cases for Illegality

1. Council of the Civil Service Unions v Minister for the Civil Service (The GCHQ case)
➔ Lord Diplock: ‘Illegality’ refers to the decision-maker must understand
correctly the law that regulates his decision-making power and must give
effect to it; If NOT, they have acted illegally and are subject to judicial
review
➔ Where a person’s private rights or legitimate expectations are affected by
the execution of the power, the decision shall be amenable to review
Modern Grounds: Cases for Illegality (Cont’d)
2. Attorney General v Fulham Corporation
➔ The Fulham Corporation did NOT have the powers to provide facilities for washing
clothes by corporation employees.
➔ It was to be restrained from acting outside its powers

3. Regina v Somerset County Council Ex Parte Fewings and Others

Under s120 of the Local Government Act, it allows councils to acquire and maintain
land for ‘the benefit, improvement or development of their area’
The council decided to ban deer hunting because it is unnecessarily cruel
➔ In JR proceedings, the decision was quashed
It failed to take the ‘benefit, improvement or development of their area’ into
account
Illegality: Application
➔ ‘Critique’ has published an article criticizing the
Council of X University for their ineffectiveness
➔ The Chairman was very angry and without
consulting other Council members, forbade the
further publication and all the activities in the
office of ‘Critique’
➔ The Chairman might NOT be permitted to make
the decision and have NO power to make such a
decision alone
Modern Grounds: Irrationality Definition

Associated Provincial Picture Houses Ltd. v Wednesbury

Corporation
(Wednesbury Unreasonableness)

➔ The test is whether the act of the public

authority is so unreasonably that NO other
public authority acting
Modern Grounds: Cases for Irrationality
1. Associated Provincial Picture Houses Ltd. v Wednesbury Corporation
(Wednesbury Unreasonableness)
- Under the provision of statute, the local authority for Wednesbury had the power to
licence cinemas ‘subject to such conditions as the authority think fit to impose’
- The local authority’s decision: Granted a licence to the claimant to show films on a
Sunday but required that NO child under the age of 15 can be admitted on a Sunday
with or without an adult
➔ The court will consider whether the local authority has taken into account matters
which they ought NOT take into account, or conversely, have refused to take into
account or neglected to.
➔ A discretion must NOT be exercised for reasons of bad faith or dishonesty
➔ A discretion must be exercised for the purpose for which it was intended
Modern Grounds: Cases for Irrationality (Cont’d)
2. Devon CC v George
- Devon CC decided to withdraw the
provision of free transport for a boy who
lived just under 3 miles away from his
school.
➔ Lord Keith: it is for the public authority to decide
whether free transport is really needed for the
purpose of promoting the attendance at school
➔ It is held that the impugned decision was NOT
unreasonable as in the Wednesbury case
Modern Grounds: Cases for Irrationality (Cont’d)
3. R (Daly) v Secretary of State for the Home Department
Prison regulations required prisoners be absent
whenever routine searches of prison cells were
conducted by prison officers
➔ It was held that the public authority acted
irrationally in the Wednesbury sense
➔ Her actions were a disproportionate exercise of
discretion on Human Rights Grounds
➔ No public authority acting reasonably would publish
a prison handbook that infringed the confidentiality
of legally privileged correspondence
Modern Grounds: Cases for Irrationality (Cont’d)

4. Roberts v Hopwood
Pursuant to s62 of the Metropolis Management
Act 1855, it is upon the council’s discretion to
pay the wages ‘as it may think fit’
➔ The council had NOT exercised its
discretionary power reasonably and within
limits
➔ It was unreasonable in the Wednesbury sense
Irrationality: Application
➔ The process of making the decision may be
considered as driven by personal emotions
instead of fair-minded grounds
➔ The decision to forbid further publication and
activities of ‘Critique’ all of a sudden is
unreasonably and illogical
➔ Wednesbury Unreasonableness is satisfied
Modern Grounds: Irrelevant factors definition

The test is whether the decision was made

according to irrelevant criteria
Modern Grounds: Irrelevant factors definition
Short v Poole (Red Hair Case)
- The red haired teacher was dismissed because
she had red hair
➔ It is taking extraneous matters into
consideration; the colour of hair is
unrelated to the teaching skill of the
teacher; it should NOT affect the teacher’s
job opportunity
➔ It may be possible to prove that the public
body was founded on irrelevant grounds as
to be outside the authority conferred upon
the body so it is inoperative
Irrelevant factors:
Application
 Small conclusion
Possible Grounds for the current case:

Traditional
- Right to be heard under the rule of natural justice
- Apparent bias

Modern
- Illegality
- Irrationality
 06
Time Limits for JR
 Time Limits for JR
S4(1) of the High Court Ordinance (Cap. 4A)

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

shall be made promptly and in any event WITHIN 3
MONTHS from the date when grounds for the
application first arose unless the Court considers
that there is good reason for extending the period
within which the application shall be made.
 07
Possible remedies
 Possible remedies
Certiorari
- An order of certiorari to quash the
decision
Madamus
- An order of madamus is issued by the
Court of First Instance to enforce the
performance of a public duty
- A practice of restoring to office
individuals who had been improperly
removed
Injunctions
- An equitable remedy that either
compels or prohibits certain acts from
being performed
Prohibition
- An order of prohibition forbids acts
or decisions being made.
Declaration
- A non-coercive remedy where the
courts will provide a statement on
the legal position between the
parties
- There is NO liability on the public
authority if they do NOT follow the
legal position as stated by the court
Damages
- Damages for private law wrongs
- Damages for public law wrongs
 08
Conclusion
 CONCLUSIONS
The 5 elements:

1. Who → Council Chairman of X University

2. Whom → The related parties of “Critique”

3. How → Right to be heard and apparent bias under NJ,

illegality, irrationality

4. When → Within 3 months from the first application

5. What (remedy) → Certiorari/ injunction

THANKS!