Road map

● Week 1: The Purpose and Nature of Administrative Law & Non-Judicial Controls on
Government
○ Brief Introduction to Administrative Law
○ Purpose of Admin Law
■ Red Light, Green Light, and Amber Light Theories
■ Further purposes of admin law
○ Constitutional Basis for Judicial Review in Hong Kong Today
■ Ultra vires doctrine
■ Common law theory of judicial review
■ Alternatives to the ultra vires and common law theories
○ Non-Judicial Controls on Government in Hong Kong & their relationship to judicial
review
■ Principal Officials Accountability System (“POAS”)
■ Access to information
■ Public consultations and engagement
■ Statutory Advisory Bodies
■ Tribunals
■ Commissions of Inquiry
■ Ombudsman
■ Political Accountability through LegCo
● Week 2: Procedural Exclusivity and the Public-Private Divide
○ The Exclusivity Principle
○ Exceptions to the Exclusivity Principle
■ Collateral issue exception
■ By parties’ consent
■ Defence to private law proceedings
■ Criminal proceedings
○ Public Law Matter?
■ From the “source of power” test to the “functions” Test
■ What is not a public law matter?
● Week 3: Leave and standing
○ Leave
■ From potential arguability to reasonable arguability
○ Standing
■ Personal standing
■ Representative standing
● Week 4: The limits of judicial review
○ Constitutional Limits of Judicial Review
■ Acts of State
■ Prerogative of Mercy (赦免权)
■ Prosecutorial Discretion
■ Policy Formulation
○ Statutory Limits of Judicial Review
 ■ Time Limit Clauses
■ Ouster Clauses
● Week 5: Remedies
○ Public Law Remedies
■ Certiorari & Prohibition
■ Mandamus
○ Private Law Remedies
■ Declaration
■ Injunctions
■ Damages
○ Discretion to refuse a remedy
■ Misconduct by the applicant
■ Futility
■ Unreasonable delay
■ Suitable alternative remedy (e.g. question concerning pure law)

Summary: Consideration for Granting Leave

● Public/Private law issues
● Reasonable arguability
● Standing
● Judiciability/Reviewability: Limits
● Hypothetical scenarios
● Judicial review as a last resort

Assessment: Approach to Answering Problem Questions

● I - IDENTIFY the main issues
● R - RULES
○ Identify the legal principles and rules applicable
○ Basic Law? Ordinances? Common Law principles? Cases?
● A - APPLY the facts to the law.
● C - CONCLUSION
○ Provide your hypothesis (answer) to the question
 Week 1 Tutorial

Applying the Red, Green and Amber Light theories on the purpose of administrative law, how would you
describe the status of Hong Kong’s administrative law in the context of non-judicial controls on
government?

● Identify the main issues

○ Briefly explain what are the red, green, and amber light theories
○ Four government initiatives
■ POAS
■ Access to information
■ Public consultations and engagement
■ Statutory advisory bodies
■ Administrative tribunals
■ Commissions of inquiry
■ Ombudsman
■ Political accountability through LegCo

Introduction
● Administrative laws fundamentally govern the relationship between those who govern and the
governed. According to red light theorists, the purpose of administrative law is to control the
exercise of governmental power, mainly through allowing the court to determine the lawfulness
of an administrative decision through judicial review. On the other end of the spectrum stand the
green light theorists, who argue that administrative law should facilitate, rather than control, the
government to engage in efficient administration. Instead of judicial intervention, the
administrative is better served with issues resolved through internal processes within the
administrative branch. However, administrative law hardly manifests itself in a binary spectrum
as most systems usually display characteristics of both red and green light theories , as the amber
light theorists would argue.
● Hong Kong is no exception as the application of its administrative law exhibits a combination of
external court-based control and internal regulation of the administrative process. Notably, Hong
Kong’s non-judicial control mechanisms, which are traditionally manifestations of the green light
theory, are oftentimes characterized by judicial intervention in their functioning, a red light
manifestation. Therefore, a key question to ask is, to what extent, do Hong Kong’s non-judicial
control mechanisms stand between the green light and the red light theory?

Main body
● To answer the question, the essay focuses on examining eight non-judicial control mechanisms in
Hong Kong.
● Administrative tribunals
○ Administrative Appeals Board
■ Pros: can review the merits of the decisions, much less formal, operational
decision
 ■ Cons: not subject to the system of publishing or recording; membership
dependence on the executive; cannot enforce its decisions
● Ombudsman
○ Positives: Can investigate complaints of maladministration
○ Cons: Lack of formal powers to enforce compliance and can only general reports and
recommendations; dependence on the executive and the legislature; limited jurisdiction

Conclusion
In conclusion, Hong Kong is inevitably an amber light jurisdiction. Non-judicial controls essentially serve
to facilitate the government’s efficient administration. Nevertheless, in Hong Kong, there is a continuing
need for the control approach where the facilitation afforded by the non-judicial control mechanisms do
not work out to the effect of public good.

Week 2 Tutorial

1. Define and briefly discuss the exclusivity principle (10)

○ Exclusivity principle stipulates that remedy for a public law matter should only be
pursued through an application for judicial review under Order 53 of the Rules of the
High Court (RHC). Conversely, that private law matters should not be subject to an
application for judicial review.
○ Order 53 provides that applications for judicial review must be initiated by originating
summons, applicants should first obtain “leave” from a court before instituting an
application for review, and the proceedings shall be instituted within three months from
the gate when grounds of application first arose.
○ Exclusivity principle was first laid down by House of Lords in O’ Reilly v Mackman
[1983]
■ In this case, the applicant prisoners followed the normal civil action process in
bringing their application for judicial review
■ The Court ruled that the correct procedure was by way of an application for
judicial review under O.53.
■ The court held that applicants’ failure to comply with the Order 53 process
avoids the protection O. 53 provides with statutory authorities, therefore
constituting the abuse of process
■ Notably, the exclusivity principle is framed as a general rule only. It’s subject to
further exceptions such as if the public law issue is collateral to a public law right
or if both parties consented to the process.
○ Hong Kong authority
■ A Hong Kong authority of exclusivity principle is Sit Ka Yin v EOC [1998]
■ In this case, the Applicant’s employment is terminated by the EQual
Opportunities Commissions (EOC) and the Applicant applied for a judicial
review of this termination decision. The court held that the right the Applicant
 enjoyed is contractual, and therefore a private law matter. Thus, the decision is
not amenable to judicial review.
○ The purpose of exclusivity principle and the Order 53 process is that all the remedies
available to the applicants could be obtained in one and the same proceeding.
■ Also “public authorities and the like should not be vexed with hopeless
applications”: [Financial Secretary v Felix Wong [2003]]
■ Ultimately, the exclusivity principle offers a balanced way for people to
challenge public bodies' decisions while mitigating the negative effect those legal
challenges could have on good government administration

2. What are the exceptions to the exclusivity principle with reference to at least one case that
illustrates the nature and scope of each exception? (10)
● The Collateral Issue Exception
○ A case may not have to proceed through O.53 if there are public law rights as
well as private law rights engaged
○ For example, in Lau Chi Fai v The Secretary for Justice [1999], a soon-to-retire
school principal sought declaratory relief by way of ordinary action that a
provision of the Code of Aid for Secondary Schools was contrary to the
Education Ordinance. One reason the court allowed the ordinary action was that
the respondent's actions include both private law grounds involving contracts and
public law grounds.
○ However
■ if public law question is a condition precedent, then public law matter is
not merely collateral to the private law right, but antecedent to it Cocks v
Thanet District Council (1983)
■ Domination of rights: Where there is a combination of public law and
private law matters, the Court may wish to go beyond the test of
condition precedent, and determine which right, public or private, is
dominant. Clark v University of Lincolnshire and Humberside [2000]
■ Concerning Remedy: However, conversely, where the court identifies
that the remedy being claimed derives solely from a public law right,
then even if the action engages rights traditionally conceived of as
private law rights, such as payment of salary or other financial interests,
the exclusivity principle applies and the O.53 process must be used.
● Exception by Consent
○ Both parties consent to the ordinary procedure
○ Lee Miu Ling & Anor v Attorney General [1996],
● Defendant and the Collateral Issue Exception
○ Defendant in civil proceedings is entitled to raise a defence on the merits even
if such defence involves issues of public law
○ Wandsworth London Borough Council v Winder [1985]
● Criminal Proceedings Exemption
○ Public law challenge is available, but clear connection required (the particular
law challenged must form the absolute basis of the criminal offence) & must be
no statutory restriction (e.g. strict liability form of the statutory offence)
○ Secretary for Justice v Richard Ethan Latker [2009]
3. What are the tests for determining a “public law” matter? [Motivate your answer with reference to
relevant legal principles]. (10)
● The line between public and private is blurred
● Source of Power (of the decision maker) Test
○ if a decision maker has exercised powers which have as their source a statutory
provision, then the matter is most likely a public law matter open to judicial
review
○ if the power is derived solely from contracts/agreements of parties, it is
presumptively a private law matter
○ Hong Kong Rifle Association v Hong Kong Shooting Association [2012]
● Function Test: If the body in question is exercising public law functions, or if the
exercise of its functions have public law consequences, then that may be sufficient to
bring the body within the reach of judicial review.
○ R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987]
○ The “but for” test - not quite clear
○ Integration test
■ E.g. statutory underpinning Wong Yui Hin v Hong Kong Arts
Development Council [2004]
● Briefly discuss the shift from the source of power test to function test
4. In Hong Kong, what are generally not considered to be “public law” matters? （5）
● Commercial or contractual transactions
○ Ngo Kee Construction Ltd v Hong Kong Housing Authority (2001)
● Employment Contract
○ Sit Ka Yin v EOC [1998]
● State as a landlord
○ Anderson Asphalt Ltd v Secretary for Justice (2009)
● Monopoly power
○ R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993]
5. If it is unclear as to whether judicial review or an ordinary action is the correct procedure, which
factors should be considered in deciding the appropriate procedure?
● Short answer upfront: judicial review first
● Time limit
○ Exclusivity principle and Order 53 process imposes a 3-month limit
○ For ordinary action, it’s six years
○ 2 scenarios: (i) raising a private law challenge in an application for judicial
review, or (ii) a public law challenge via the ordinary procedure
■ (i) is not fatal: shorter time limits for judicial review mean that the
applicant will still be within time to challenge through the ordinary
procedure
■ (ii) is fatal: commenced after the O.53 three-month time limit
● A relevant example would be Davy v Spelthorne Borough Council [1984]
○ If I were Davy’s lawyer…
● Sit Ka Yin v EOC [1998]
○ The judge expressly said if it is unclear, judicial review would be safe
 Week 3 Tutorial

Tutorial Questions:
1. Briefly summarize the facts and then explain the outcome and reasoning of the court in the matter
of Kwok Cheuk Kin v Commissioner of Police [2017] [10 marks]
● Facts
○ Two police associations held a special meeting with over 30,000 participants in
the private premise of a police club and the organizer gave no notification of the
meeting to the Commissioner of the Police under s 7(1) of the POO.
○ The Commissioner subsequently exempted the notification requirement as the
meeting was business or professional in nature, therefore not meeting the
statutory definition of “meeting”
○ The applicant, who was not part of the police, sought to challenge the
Commissioner’s decision
● The key issues
○ Whether the special meeting was a private or public meeting?
○ Whether the applicant has standing to challenge the Commisioner’s decision by
way of judicial review?
● Held
○ First, the meeting was not a public meeting
■ The meeting was held in a private premise
■ The meeting was only accessible by members and invitees and the public
or any section of the public was not entitled or permitted to have access
○ Second, the applicant lacked standing to make the present application
■ The applicant does not have personal standing as the meeting he was
involved before were all public in nature, therefore very different from
the meeting at issue; For representative standing, the applicant cannot
be regarded as having “sufficient interests” merely because the issue is of
public interest nature.
■ There could be potential claimants who are better placed the applicant to
bring the present challenge, e.g. someone from within the police system
who might have been inconvenienced by the meeting
■ Applicant cannot rely on differential treatment as the meeting at issue
and the ones the applicant participated before were not comparable in
nature
■ also by seeking mandamus, the applicant appears to aim to put pressure
on the Commissioner to conduct investigation instead of being genuinely
concerned for the public interest of freedom of assembly (a “mere
busybody”)

2. In terms of the Noxious Waste Ordinance (fictitious) (the NWO) the Director of Noxious Waste
may issue a permit to any person to discharge noxious or radioactive waste in any form into the
environment. Sec 2 of the RWO states that such permit may only be issued after a process of
public consultation seeking the views of affected members of the public or other interested parties
and that such permit may only be issued for a maximum period of one year.

Microhard Waste Processors Ltd (Microhard) is a company that has developed a new process of
incinerating mixed waste from rubbish dumps and then processing the burnt waste into building
bricks for building construction. Microhard has tested the emissions of its furnace chimneys and
believes that these emissions are within the environmental guidelines contained in Schedule 1 of
the NWO. They apply to the Director of Noxious Waste for a permit to discharge waste into the
atmosphere at their Shatin factory. The Director proceeds to publish a call for public consultation
on the issue of the permit in a local newspaper, the Shatin Herald. Three days later, the Director
issues a permit to Microhard as he says their emissions, although near the limit, are indeed within
the limits prescribed by Schedule 1 of the NWO. There is no mention on the permit as to the
time-period for which it is valid.

Your legal firm is approached by the following two clients who wish to institute proceedings
seeking to review the decision of the Director of Noxious Waste. What would your advice to them
be?

(a) Mr Au is a resident of Shatin. He is retired and lives in an apartment within 200m of the
Microhard plant. He saw the advertisement in the newspaper for public consultation and was in
the process of compiling his views against the issue of the permit when he heard that the permit
was already granted. He is concerned about the effect that the emissions from the plant will have
on his health because he suffers from chronic asthma. He says the air quality is bad enough
already without this plant contributing to further pollution. Everyone he has spoken to in the
community is against the issuing of the permit. Mr Au asks you only to advise him on the
process of obtaining leave, and the issue of whether he has standing.

Process of obtaining leave

● Procedural requirements
○ Under Order 53, Mr. Au shall obtain leave first before applying for a judicial
review
○ According to Order 53, r.4, Mr Au shall make an application for leave to apply
for judicial review promptly and within three months from the date when grounds
for the application first arose. Therefore, Mr Au shall apply within three months
after the Director issued the permit to Microhard.
○ According to Order 53, r. 3(2) Leave stage usually decided on an ex parte basis;
this means that the application is decided without the the opposite party
participating; the process would be relatively simple and quick
○ Although an application for leave is usually determined without a hearing, under
Order 53, r. 3(3), Mr. Au may also request the court to have an oral hearing and
in appropriate cases, judges may issue notice to the respondents
● Threshold: Reasonable arguability
○ Court is entitled to exercise its discretion judicially, subject to the reasonable
arguability test: Only a reasonably arguable claim which enjoyed realistic
prospects of success should be given leave to proceed Po Fun Chan v Winnie
 Cheung [2008]
○ The case is likely to be reasonably arguable given the following reasons. First,
consultation was unreasonably short for only three days. Second, the permit did
not include the statutory 1-year limit.
● It is also clear that Mr. Au has standing in the issue (will discuss below). Other than lack
of a reasonably arguable case and delay in commencing proceedings, leave may be
refused on grounds such as case not being public but private in nature or the issue is not
judiciable. It is clear that the present issue is public in nature, therefore judiciable.

Whether Mr. Au has standing

● Under Order 53, rule 3(7) RHC :“[t]he Court shall not grant leave unless it considers
that the applicant has a sufficient interest in the matter to which the application relates.”
(emphasis added)
● Mr. Au is very likely to have standing given the following facts. First, Mr. Au is a
resident of Shatin and only lives within 200 meters of the Microhard plant. Second, the
potential emissions from Microhard could potentially negatively affect Mr. Au’s health
given his chronic asthma.
● The likelihood is strengthened by the tendency that courts adopt a more liberal
approach to standing in relation to individuals: If an individual is obviously and
immediately affected by a decision, that individual clearly has a sufficient interest.
○ ex parte Venables [1998]
● Additionally, no public policy consideration is likely to limit standing for Mr. Au
○ ex parte Bulger [2001]
● In conclusion, Mr. Au is likely to have personal standing and would be granted leave to
proceed with judicial review.

(b) Greenleaf is a well-established and well-resourced environmental rights organization that

operates across the Asia-Pacific region. They have a small office in Central but are based in
Malaysia and Singapore. They have been pursuing environmental rights issues for over 40 years
and have vast scientific resources at their disposal through their partnership with universities
across the region. Greenleaf are very concerned about the following issues:
o The 3-day consultation process was clearly inadequate. They intended to make
submissions about the permit application when they were told that the permit was
already issued. They suspect that there may also be some ulterior motive on the
part of the Director but are investigating this.
o The permit was not issued for 1 year maximum as the Ordinance prescribes, but
for an indefinite period;
o The submission which they were working on was based around a fundamental
error in Microhard’s permit application, which they believe the Director either
did not appreciate, or he ignored it altogether. Microhard provided emission test
results taken from the chimneys of their furnaces and the calculations of air
quality they did to bring it within Schedule 1 limits was based on the dissipation
of those emissions into pure quality air. However, as any resident of the region
 knows, the actual air quality is not pure – there is always a level of existing
pollution in the air that needs to be taken into account. If averaged real air quality
parameters are applied to Microhard’s calculations, their plant’s emissions would
significantly exceed permissible limits mentioned in Schedule 2. This is a
complex and expensive issue to prove – but the preliminary results are clear. In
effect, the air quality in Shatin and surrounding areas will on some days become
noxious, and poisonous to people with chronic illnesses.
Greenleaf asks you for advice only on whether they would have standing to challenge the
Director’s decision by way of judicial review. [25 marks]

● Under Order 53, rule 3(7) RHC “[t]he Court shall not grant leave unless it considers
that the applicant has a sufficient interest in the matter to which the application relates.”
Therefore, the key issue is whether Greenleaf has sufficient interests in the granting of
the emissions permit to Microhard for it to have standing?
● Prima facie, if the applicant does not have a direct interest in the issue or could not be
directly affected by it, “sufficient interest” is unlikely to be established (the IRC case).
○ Similarly, Greenleaf does not have a direct personal interest in the granting of
permits to Microhard (e.g. it does not have an office or personnel in Shantin that
would be directly affected by the permit). Prima facie, sufficient interest could be
difficult to establish.
● However, it may be possible for a claimant to bring an action where they have no direct
interest if there is a wider point of public interest to be decided by the action (ex parte
Greenpeace (No.2) (1994)). Here, significant public interests are involved as discharging
burnt waste into the air could potentially cause environmental pollution and could affect
the public health of the tens of thousands of residents living in the area of Shatin.
○ (public interests con’t) With over 40 years of environmental rights experience in
the Asia-Pacific region, Greenpeace could be regarded as a respected and
responsible body This is different from Kwok Cheuk Kin v Commissioner of
Police [2017] in which the claimant is regarded to have ulterior political
intentions rather than genuinely being concerned with the public interests and the
constitutional rights of assembly.
○ Secondly, representative standing is also supported by the need to vindicate the
rule of law (ex parte World Development Movement Ltd [1995]; ex parte Leigh)
The unreasonably short 3-day consultation period and the missing of 1-year
statutory limit on the permit are likely incidents of ultra virus that put the rule of
law in Hong Kong at risk.
○ Thirdly, representative standing is also supported by the likely absence of equally
competent alternative applicants to defend the rule of law and uphold the public
interests at issue (Greenpeace; World Development Movement). Here, the
technical investigation into Microhard’s calculation of emissions could be a
complex and expensive undertaking. It is unlikely that there would be alternative
applicants that command Greenleaf's expertise to launch an equally competent
judicial challenge. If a less well-informed challenge is mounted, it could lead to
the undesirable outcome of the loss of courts’ resources.
 ● In conclusion, Greenleaf is likely to have representative standing. Perhaps, a more
sensible approach would be Greenleaf could file a joint application with Mr. Au. Mr.
Au could be the first plaintiff while Greenleaf could be the second plaintiff. It would be a
win-win situation where Greenleaf could provide Mr. Au with the resources and expertise
Mr. Au lacks and Mr. Au’s presence could make up for the deficiencies Greenleaf has in
standing as an organization.

Week 4 Tutorial

1. In Keung Siu Wah v Attorney-General [1990], the Court remarked that “I can imagine few
subjects less adapted to the judicial review procedure under O.53 than the exercise of the
Attorney General’s discretion in deciding whether to institute criminal proceedings and what
charge should be preferred.”

Discuss whether this statement made by the court in 1990 still accurately reflects the legal
position in Hong Kong today in relation to judicial review of prosecutorial discretion. Refer to
relevant case law and other legal principles in motivating your answer. [25 marks]

Introduction
● In Keung Siu Wah, the Court famously reaffirmed Hong Kong’s position that prosecutorial
decision was not amenable to judicial review. Notably, since the case was decided in 1990 and
before the Basic Law was introduced in 1997, it merely reflected the U.K. common law position
up to the stage. Since 1990, the legal system in Hong Kong has undergone major developments.
The introduction of the Bill of Rights Ordinance (BORO), for the very first time, lays down a
statutory framework to safeguard the exercise of individual rights. BORO incorporates ICCPR
and emphasizes that other laws have to comply with BORO. With the 1997 hand-over, the Basic
Law was introduced, the mini-constitution of Hong Kong. Article 63 of the Basic law provides
that “[t]he Department of Justice of the Hong Kong Special Administrative Region shall control
criminal prosecutions, free from any interference.” While the Secretary for Justice exercises a
wide range of discretionary powers, those powers have to be lawfully exercised for them to fall
within Article 63.

Conclusion
● Instead of being overruled, Keung Siu Wah has been developed in light of subsequent decisions
post-1997. The Court of Final Appeal has never pronounced itself whether Keung Siu Wah is still
applicable in Hong Kong or not. In this regard, the debate is still an open question to that some
extent.
 Review Question

The (fictitious) Community Fitness Ordinance (Cap. 2020) (“Ordinance”) enables the
government to make compulsory purchase orders over land used for or intended to be used for
establishments serving fast food, and turn them into free public gyms. The goal is to facilitate
free exercise sessions and improve public health.

The Ordinance provides that (i) any application to appeal the government’s order must be made
to the Community Fitness Appeals Committee; and (ii) any application for review of the final
decision of the Committee must be made within one week of the decision but only on the
grounds that the decision is ultra vires; otherwise the decision cannot be questioned in any
legal proceedings whatsoever.

The government has made such an order in respect of land belonging to Abigail. The land is a
piece of waste ground, which Abigail intends to turn into a venue for shisha smoking. The order
was made after a junior government clerk, Freddie, viewed the property. Based on a
conversation that she had with Freddie, Abigail learnt that the government intends to build an
office on the waste ground.

Fast Food Federation (“FFF”), an organisation made up of 50 fast food establishments, are
unhappy about the Ordinance as the government may make compulsory purchase orders on
their members’ establishments. FFF also thinks that the Ordinance may be unconstitutional.
Abigail and FFF approach you for legal advice. In particular, they want to know how likely it
is that the Court of First Instance will grant them leave to apply for judicial review.

Advise Abigail and FFF.

Considerations for granting leave

● Public v private
○ Source of power test: Exercising statutory power
○ Functions test: Likely exercising public functions (or having great public consequences)
but will argue the government acting as a private landlord (Anderson Asphalt Ltd).
● Reasonable arguability
○ Wrongful application of the law/error of facts: wasteland or the intended shisha smoking
place not fast food venues
○ Ultra virus: cannot turn it into an office; statute only allows free public gyms
○ Procedural deficiency: Major land appropriation decision only made by a junior clerk
after a simple view of the property
● Standing
○ Abigail: Likely personal standing
○ FFF: Could argue personal standing if one of its member restaurants is directly affect by
the Ordinance; if not, could argue representative standing (public interests, rule of law,
expertise and no equally competent alternative applicant)
● Ouster clause
○ Ouster clause only protects lawful decisions; therefore no effect
● Delay in commencing proceedings
○ Should follow the one-week limit although the application for leave of judicial review
prescribes 3-month
● Residual issue
○ Hypothetical/academic scenario: the dispute is not material; without an order having
actually been made
○ Judicial review as a last resort, should appeal to the internal Committee first