POLS 7040

Law & Public Affairs

Lecture 4
Administrative Law (行政法)

Jason Law
 Content
• Brief Introduction to Administrative Law
• Non-Judicial Means
• What is Judicial Review (司法覆核)
• Procedures
• Reviewability
• Locus Standi (Standing)
• Leave
• Be Connected to real-life!
• Basis of Judicial Review – You Be The Judge!
 Concept of Administrative Law
• HOW!!

• Body of rules which govern the detailed exercise of executive

functions by the officers or public authorities
 Concept of Admin Law
• The Law relating to the control of governmental power

• Govern the exercise of powers and duties by public authorities

• Wade & Forsyth, Administrative Law
Different Approaches to Admin Law
 Different Approaches to Admin Law (HK)
• Green light theory
• The Late Mr. McCoy S.C. “a decision-making approach”

• Ref light theory

• Richard Gordon QC and Johnny Mok SC “seeks to control the actions of public
bodies”
 Non-Judicial Means

Judiciary Independent Organisations

e.g. Ombudsman (申訴專員公署)
Ultra vires (越權)
Constitutional? Administrative Misconduct (行政失當)

Legislature Policies
Executive Internal disciplinary actions
(內部紀律行動)

Proportionality (恰當性)

Tribunals (審裁處)
 Non-Judicial Means (Tribunals)
• https://www.info.gov.hk/cml/en/cbc/index1.htm
• Specified areas (statutory)
• E.g. demonstration, asylum seekers (torture claimants) (酷刑聲請)

• Not limited to ultra vires, review according to all circumstances

• Only about correctness and proportionality, not about legality (合法

性)and constitutionality (合憲性)
 Non-Judicial Means (Ombudsman)
申訴專員
• Maladministration (行政失當)

• Definition: s. 2, The Ombudsman Ordinance (Cap. 397)

• https://www.elegislation.gov.hk/hk/cap397?xpid=ID_1438403151853_001

• Not only about ultra vires à more extensive

• Limitations!
• Only recommendations, not enforcement powers
• Not all public authorities are under its radar e.g. Police and ICAC
 Non-Judicial Means (Legislature)
• Government acted in accordance with “bad law”
• No ultra vires, no maladministration

• Call officials for questioning

• Amendment Bills!
 Non-Judicial Means (Internal Supervision)
• Internal guidelines
• E.g. Force Procedural Manual (警務處程序手冊), Police General Order (警察
通例)
• https://www.police.gov.hk/ppp_en/11_useful_info/pgo.html

• Handle Complaints
• The Complaints Against Police Office (投訴警察課)
• https://www.youtube.com/watch?v=8imD8Wiqj2o

• Limitations??
 Judicial Review (司法覆核)
• The process by which the High Court exercises its supervisory
jurisdiction over the proceedings and decisions of inferior courts,
tribunals and other bodies or persons who carry out quasi-judicial
functions or who are charged with the performance of public acts and
duties. (Michael Supperstone QC)
 Judicial Review
• Provides the means by which judicial control of administrative action
is exercised
• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
 Concepts of JR
• As a matter of Court’s discretion

• Regulate Public Law Wrong

• Unlawfulness
• Unreasonableness
• Unfairness

• Applicant with sufficient interest; lacks alternative remedy; and must

act promptly
 Historical Development in HK
• “JR in HK in fact reached a new plateau in the late 1970s…while we
found cases before 1950, and have included references to them, 90%
of the cases were decided in 1950 or after. This is hardly surprising
since this was the period during which the industrial revolution came
to HK, followed by other structural changes especially after 1967”
-Mr. McCoy S.C. (HK Administrative Law)
 Historical Development in HK
• 1988: 29 applications
• 1990: 75
• 2009: 130
• 2012: 180
• 2016: 228
• 2017: 1146
• 2018: 3014
• 2019: 3889
 Historical Development in HK
• Li CJ in Legal Year Opening Ceremony 2006:-
“Since I commenced legal practice over three decades or so ago, one of the
most striking developments has been the increase in JR proceedings and the
rapid evolution of public law. This phenomenon is not peculiar to HK but is a
common one in jurisdictions around the globe, including Australia, New Zealand
and the UK, with whose legal traditions we have the closest affinity”
 Li CJ’s Speech
• In 2000 and 2001, there was a flood of right of abode claims

• The range of areas covered by JR has broadened considerably in

recent years

IMAGINATION!!
 Li CJ’s Speech
• The Court’s proper role
• DO NOT ASSUME the tole of the maker of the challenged decision

• Concerned and only concerned with the legality of the decision

• Can only be properly explored through political process

 Legal Basis of JR
• Rule of Law

• Supremacy of Constitution – Basic Law

• Separation of Powers
 Fundamental Principle!! – Ultra Vires (越權)
• Exceeded executive’s powers??

• Procedural and substantial

• The courts may intervene whenever a decision maker acts beyond the
powers conferred to him/her by legislation
 JR in Action - Procedures
• 2 stage process
• Court’s leave (許可) – ex parte (單方面)
• Form 86 – Notice of Application for Leave to Apply for JR + supporting affirmations (誓章)
• Leave granted
• Form 86A – application for JR
• https://www.judiciary.hk/en/court_services_facilities/hcf_cfi.html
 JR in Action - Procedures
• Respondent in opposition to file affirmation within 56 Days

• Determined on affirmation evidence without calling witnesses

• Any JR must be made promptly within 3 months from the date when
grounds for the application first arose

• Last resort – left with no other available remedies

 JR in Action – Remedies (補救)
• Certiorari (移審令)
• Invalidation of the challenged decision

• Prohibition (禁止令)
• Prohibiting the decision making to carry out the decision

• Mandamus (履行責任令)
• Order the organisation to enforce certain decisions

• Declaration (宣布)
• Declaring certain decisions illegal or certain laws unconstitutional
 JR in Action – Remedies (補救)
• Interim Injunction (臨時禁制令)
• 郭卓堅 v 政府醫衛局局長 [2022] HKCFI 3132
• https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=147841&currpa
ge=T
 Reviewability
• Whether a decision of a particular organ can be reviewed by the
Court?
 Reviewability
• Most JR are brought to challenge the legality of governmental
organisations, or the exercise of discretionary power by them

• Organisations which derive their authority and obligation to perform

their functions from Basic Law and statutes à public bodies

• When a body seeks to achieve some collective benefit for the public
or a section of the public and is accepted by the public, as having
authority to do so
 Reviewability
• NEED NOT BE the exclusive domain of the state

• E.g. charities, self-regulatory organizations e.g. universities, the Stock

Exchange, churches, Hong Kong Bar Association, etc.
 Reviewability
• Pacific Century Insurance Co. Ltd. V Insurance Claims Complaints
Bureau [1999] 3 HKLRD 720

• X submitted claim to P who then refused her claim. X made a

complaint to the ICCB. ICCB decided that X was entitled to
compensation

• Issue: whether ICCB was subject to JR??

 Reviewability
• Arguments for:
• All new members must join and remain with ICCB

• Arguments against:
• Contractually based body
• No statutory underpinning

• Ruling:
• ICCB took step to incorporate itself into a scheme of regulation as
contemplated and empowered by statute
• Public Function!
 Reviewability
• ONLY the public function of a public body is reviewable!

• E.g. Personal contracts; Commercial Contracts; Land Contracts à

private law!
 Locus Standi (Standing)
• Only those whose own rights are at stake are eligible to be awarded
remedies

• Sufficient interest!

• s. 21K(3), High Court Ordinance, Cap. 4

“No application for JR shall be made…unless the applicant has a sufficient
interest in the matter to which the application relates”
 Locus Standi (Standing)
• Order 53, rule 3(7), Rules of the High Court (Cap. 4A)
“The Court shall not grant leave unless it considers that the applicant
has sufficient interest in the matter to which the application relates”

• Who decides?
• Court!

• Lord Wilberforce “The right to do so is an important safeguard against

courts being flooded and public bodies harassed by irresponsible
applications”
 Leave (許可)
• S. 21K(3), High Court Ord (Cap. 4)
• No application for JR shall be made unless the leave of the CFI has been
obtained”

• Order 53, Rule 3(1), Rules of High Court (Cap. 4A)

• No application for JR shall be made unless the leave of the Court has been
obtained in accordance with this rule.
 Leave (許可)
• Arguablility Test

• Winnie Cheung & Anor v Chan Po Fun Peter (FACV 10/2007)

• Li CJ: The requirement for leave to apply for JR is an important filter…its
purpose is to prevent public authorities from being unduly vexed with
unarguable challenges
• v Rights to access to courts?
 Leave (許可) – Arguability Test
• Li CJ: The purpose of the leave requirement would be better served
by the adoption of the arguability test…Under this test, arguability
must mean reasonable arguability…A reasonably arguable case is one
which enjoys realistic prospects of success
 Limitations of JR
• JR and rules of natural justice can be excluded by statutes
• Ouster clauses (不受司法覆核程序監管)
• Electoral Reform 2021

• National Security
• NSL
• HK Court’s Jurisdiction (司法管轄權) issue

• Legal Status of NSL

• Ouster clauses
• Art. 14, NSL
• https://www.elegislation.gov.hk/fwddoc/hk/a406/eng_translation_(a406)_en.pdf
 Be Connected!! Selected Cases
• LGBTQ
• W v Registrar of Marriages
• https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2012/FACV000004_201
2_files/FACV000004_2012ES.htm

• QT v Director of Immigration
• https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2018/FACV000001A_20
18_files/FACV000001A_2018ES.htm

• Leung Chun Kwong v Secretary for the Civil Service & Ors
• https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2018/FACV000008_201
8_files/FACV000008_2018ES.htm
 Selected Cases
• Prohibition on Face Covering Regulation

• Kwok Wing Hang & Ors v Chief Executive in Council & Anor
• https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/FACV00000
6_2020_files/FACV000006_2020ES.htm
 Selected Cases
• Co-Location Arrangement of the Guangzhou-Shenzhen-HK Express
Rail Link (一地兩檢)

• Kwok Cheuk Kin v Decretary for Justice

• https://www.doj.gov.hk/en/notable_judgments/pdf/CACV_8_10_87_88_201
9e.pdf
 Other Cases
• https://www.doj.gov.hk/en/notable_judgments/summary_review_ca
ses.html
 Grounds for JR (3 heads)
• Council of Civil Service Unions v Minister for the Civil Service [1985] AC
374 at 410 per Lord Diplock

Irrationality/
unreasonableness Procedural
Impropriety
Illegality
YOU BE THE JUDGE!
 Illegality (不合法)
• Without legal basis (沒有法理依據)
• Leung Kwok Hung v Chief Executive of HKSAR [2006] HCAL 107/2005
• s. 33, Telecommunications Ord – interception of private communications

• Chief Executive authorizing law enforcers to intercept private communications during

investigations
 Illegality (不合法)
• Without legal basis (沒有法理依據)
• Leung Kwok Hung v Chief Executive of HKSAR [2006] HCAL 107/2005
• WRONG!!!!!

• Not law, no laws in HK to allow law enforcers to intercept private communications

• Invalidated

• Government and LegCo implemented the

Interception of Communications and Surveillance Ord (Cap. 589)
第589章 《截取通訊及監察條例》 - Cap. 589 Interception of Communications and
Surveillance Ordinance (elegislation.gov.hk)
 Illegality (不合法)
• Ultra Vires
• Hermes Pacific Ltd v Commissioner of Customs & Excise [1988] 2 HKLR 165

• Soap v Cosmetics??
 Illegality (不合法)
• Error of law on the face of the record (錯誤解釋法律, 有關錯誤可見
於有關文件中)

• 第283章 《房屋條例》 [過去版本] - Cap. 283 HOUSING ORDINANCE

[Past Version] (elegislation.gov.hk)

• Deflation à duty to review and adjust rent à median rent to income

ratio of 10%

• Public Housing shall be Affordable

 Illegality (不合法)
• Wrongful delegation of powers (錯誤轉授行政權力)
• In re David Chiu and Deacon Chiu
• Power to appoint Magistrate (Governor or CJ?)

• Conspiracy to bookmaking

• Stay of proceedings à rejected

• Letters Patent à Magistrates must be

Appointed by Governor, not by Chief Justice
 Illegality (不合法)
• Discretion not used properly
• In re an application by the Hong Kong’s Hunters’ Association

• Executive Council: all hunting in HK should be banned

• Agriculture, Fisheries and Conservation Dept

Refused hunting license application

第170章 《野生動物保護條例》 - Cap. 170 Wild Animals Protection

Ordinance (elegislation.gov.hk)
 Illegality (不合法)
• Malicious Administrative Decision (非善意行政決定)
• R v Toohey, ex parte Northern Land Council [1980-1981] 151 CLR 170

• Indigenous in Australia applied for legal rights over a piece of land near
Darwin

• If a land is within the city boundary, no one can claim

• After the application, Darwin government passed law

to include that piece of land
 Illegality (不合法)
• Exercise of discretion to achieve inappropriate aims
• Lee Ma-loi v Commissioner of Inland Revenue [1992] 1 HKLR 200

• Police seized cash on fisherman’s boat

• Handed over to Inland Revenue Dept

• Found out to be subject to profit tax

 Illegality (不合法)
• Taking into account irrelevant factors / failing to take into account relevant factors
• Re Pham Van Ngo and Others [1991] 1 HKLR 499

• Vietnam boat heading to Japan

• Boat damaged over HK sea

• Entered HK for assistance

• Detention under s. 13D

• 第115章 《入境條例》 - Cap. 115 Immigration Ordinance (elegislation.gov.hk)
 Wednesbury Unreasonableness (非常不合理)
• Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223

• Sunday Entertainment Act

• Licence to cinema + specific conditions

• No children under 15
Wednesbury Unreasonableness (非常不合理)
Chim Shing Chung v Commissioner of Correctional Services [1996] 6
HKPLR 313

-CSD taking away newspaper for horse racing

-CSD: for maintaining discipline in prisons

Wednesbury Unreasonableness (非常不合理)
Chan Heung Mui & Ors v Director of Immigration [1994] 4 HKPLR 533

-Entered HK illegally

-Took care of her husband (mentally retarded)

-2 young daughters
-husband’s father old and sick

-Refused right of abode

 Procedural Impropriety (不符合程序要求)
• Decision makers have to follow mandatory (強制性) procedural
requirement if required by law

• If only directory(指引性), even not followed, does not amount to

ultra vires

• What if no procedural requirements were laid down??

• Rules of Natural Justice (自然公正原則)apply
 Rules of Natural Justice
• Decision maker must not have a real likelihood of bias (偏私的真實可
能性)
• Wong Pun Cheuk v Medical Council of HK [1964] HKLR 47

• Dangerous Drugs Regulations: Director of Health can file a complaint to the

Medical Council if a doctor prescribed dangerous drug to a patient for non-
medical purpose

• Medical Registration Ord: Director of Health is the

Chairperson of the Medical Council
 Rules of Natural Justice
• Ridge v Baldwin [1964] AC 40

• UK Superintendent charged with corruption and conspiracy to pervert

the course of natural justice

• Acquitted, integrity criticized openly by the Judge

• Removed from office by the Authority