The University of Hong Kong

Department of Law

Academic Year of 2022-2023

Examiner’s Report

[This report will be posted onto intranet immediately after the release of exam results]

Course code: LLAW6204 Course Title: Public Law in Common Law

Jurisdictions
Report prepared by: SK Lee Date: January 2023

The examination took the format of a six-hour, open-book, online take-home examination,
counting towards 50% of the final grade. (15% of the final score was assessed based on class
participation while 35% assessed based on group project submission.) Candidates for the
written examination were required to answer one question. A total of 69 candidates sat the
examination. Candidates generally performed well, especially in the group project. As a result,
almost all candidates obtained a final score for this course within the A or B range, with around
29% of the candidates attaining a grade within the A-range.

Question
“The common law system is prone to promoting human dignity at the expense of
certainty of law.” Critically discuss the extent to which you agree or disagree with this
statement, having regard to the legal rules, principles and court practices as applied in
the Hong Kong SAR.

This question required candidates to reflect on the relationship between the promotion of
human dignity on the one hand and maintaining legal certainty on the other. Candidates
were expected to discuss what “human dignity” entails and how it is promoted under the
common law system. They should also analyse different aspects of the common law-based
legal system in the HKSAR which promote or undermine legal certainty. Candidates were
expected to come to their own view to what extent they agreed or disagreed with the statement
in the question.

Candidates were expected to apply critical thinking. They were expected to discuss the
statement from different perspectives and provide a balanced analysis. The best answers are
those which present original ideas and viewpoints, supported by appropriate authorities
and illustrations, and are well-written, well-structured with arguments presented in a forceful
and convincing manner. On the other hand, candidates who engaged in a general discussion of
legal certainty and/or human dignity without focusing on the legal rules, principles and court
practice of the Hong Kong SAR would be awarded a lower scoire. Likewise those candidates
who failed to address both elements of legal certainty and human dignity, or to discuss the
relationship between the two.

On human dignity, while this phrase did not appear in the Basic Law or the legislation of
Hong Kong, many candidates were able to point out (citing relevant international and local
authorities) that the protection of fundamental rights (human rights) lies at the heart of
respecting human dignity.

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As to legal certainty, the requirement of legal certainty embodies requirements as to the
accessibility, clarity, predictability and stability of law. The idea is to provide sufficient
guidance to citizens to enable them to organise their affairs, and to enable society to function
normally and to develop. These requirements are also reflected as rule of law principles. Some
candidates were able to point out that legal certainty is also crucial to upholding human dignity.

Candidates cited various examples of fundamental rights and how they are being protected
under the legal system, notably constitutional entrenchment under the Basic Law and the Hong
Kong Bill of Rights, with right of access to the courts (through judicial review) to challenge
legislation or executive act for contravening fundamental rights.

It is important to note the test for restriction of non-absolute fundamental rights, including the
requirement that the restriction must be “prescribed by law” (embodying requirements of
accessibility and certainty of law). In short, this is a requirement as to legal certainty.

It may be argued that the application of the proportionality test (Hysan) may sometimes lead
to uncertainty as different judges may come to a different view as to whether the restrictive
measure is proportionate or not in a particular case. That said, many candidates pointed out that
the proportionality test is structured upon principles and it is for the court to apply the test
(principles) in individual cases. Such an approach enables the court to more effectively protect
fundamental rights, and it is acceptable even if sometimes individual judges applying the test
may reach different conclusions. In any case the application of the proportionality test would
be no more arbitrary than leaving an executive decision or legislative provision unchecked.

Candidates also pointed to other features of the common law system, such as the concepts
of natural justice and procedural fairness, judicial independence, access to justice and rule of
law. These are not only relevant as protection of fundamental rights, but they also enhance
legal certainty by ensuring that there is rule of law and equality before the law/court.

While the principles of natural justice are not cast in stone but may change according to
circumstances, such “tailored approach” does not necessarily mean that legal uncertainty is
undermined. Again it may be argued that this flexible, tailored approach seeks to ensure that
procedural fairness can be upheld in different cases.

Legal certainty is also enhanced through common law features which reduce the arbitrary
exercise of public powers e.g. the requirement that public powers must be legally authorised,
and must only be exercised for the purpose for which they are granted. Availability of judicial
review ensures that executive acts (including the enactment of subsidiary legislation) can be
reviewed on administrative law grounds (illegality (including being void for uncertainty),
irrationality, procedural impropriety (including frustration of legitimate expectation).

Many candidates correctly pointed out that some degree of flexibility and hence uncertainty
was inherent in the nature of the common law system where judge-made law formed an integral
part of the body of law and judicial independence was hailed as an important attribute. At the
same time, the common law system also sought to strike a balance between certainty and
control of arbitrariness versus flexibility for case-specific administration of justice and legal
development in tune with societal development. Thus, the doctrine of precedent, statutory
interpretation rules and principles, the doctrine of separation of powers and judicial self-
restraint operate to limit the scope of judicial discretion and arbitrariness.

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Some candidates pointed out that it is impossible for legislation to be absolutely clear and
however well written, there would always be gaps in legislation, or legislation could become
outdated. As legislation inevitably needs to be applied and interpreted. Depending on how the
purposive approach of statutory interpretation is applied, it may operate to enhance legal
certainty in some cases (e.g. to give effect to legislative intent which is not fully reflected due
to bad drafting of the legislative provision), or it may be seen as undermining legal certainty in
others (e.g. in “hard cases” different judges applying the purposive approach may come to a
different interpretation. This may happen especially where the court is interpreting an old
provision to apply it to a modern or new situation).

Ultimately a legal system should seek to ensure legal certainty in order to guide behaviour and
provide a basis for interactions and transactions, and for society to develop. Legal certainty is
also important in upholding human dignity. While principles and features designed to protect
fundamental rights may sometimes operate to undermine legal certainty. Absolute certainty is
impossible. The question is one of balance. The legal system seeks to lay down certain rules
and set parameters to check against arbitrary exercise of power and arbitrary decision, while
ensuring that there is sufficient level of legal certainty to give predictability in life and to guide
behaviour. This way human dignity can be upheld.