Review Issues

● Scope of Anisminic principle on ouster clauses

○ The court does not treat the ouster clause as effective
○ Principle of strict interpretation: the court would not assume the legislature has actually
intended to oust the court’s jurisdiction if there is illegality
○ Ouster clause only protects lawful decision
○ However, the court has to engage in judicial review to determine if a decision is lawful or
not; This means that ouster clauses exist more in form than in substance
● Circumstances in which consultation and notice duties arise in procedural fairness
● The scope of rules against bias
○ The rules apply to all judicial, quasi-judicial, and administrative decisions
○ Exceptions: Consider the principle of necessity and if there is any waiver
● Scope of rights in immigration cases
● Relevance of “error of law to the jurisdiction”
○ Anisminic: No distinction between error of law to the jurisdiction and error of law within
the jurisdiction
● Difference between conduct and representation within legitimate expectations
○ Principles are interchangeable
○ The fundamental questions: whether it is reasonable to derive a legitimate expectation?
○ Legitimate expectations arise from public conduct but not private ones
● Relevance of “constitutional proportionality” v. common law proportionality (Potentially an
essay question)
○ Issue: is it welcome to export proportionality from constitutional to common law?
○ Common law proportionality (discrete instances) is not as structured as its constitutional
counterpart (QT as exception)
● How courts decide applicable place on the scale in Wednesbury review
○ MA, QT, and Begbie
○ Courts still generally apply traditional Wednesbury
■ E.g. in BI v Director of Immigration, splitting a family up does not justify the
application anxious scrutiny
● Why anxious scrutiny applies in refugee cases given (per ubamaka) non-derogable rights are
engaged
○ Proportionality does not apply to non-derogable rights
○ The difference between public rights and public wrongs
■ Anxious scrutiny mostly applies to identify and correct public wrongs instead of
upholding public rights
Question 2

Wong, a market trader at Wan Chai’s busy market, is a big fan of a TV show, “Nazi Hunters”. “Nazi
Hunters” follows the story of a group of survivors of Nazi atrocities seeking to identify and exact (violent)
revenge on senior Nazis living amongst them in the United States. These senior Nazis had fled Germany
following the Allied victory to assume new identities and lives in the United States. “Nazi Hunters” was,
very loosely, based on real events, with many Nazis fleeing Germany to avoid the accountability that
would have been imposed upon them if they were captured by the Allies.

To commemorate “Nazi Hunters”, Wong decided to have T-Shirts printed to sell in his market stall. He
designed one T-Shirt that included a quote (in capital letters) from the TV show: “YOU KNOW WHAT
THE BEST REVENGE IS? REVENGE”. The T-Shirt also included an image of a gun held to the head of
Adolf Hitler (who was the former Chancellor of Germany and leader of the Nazi Party).

The (fictitious) Urban Markets Ordinance regulates market trading. Pursuant to Section 18, “The Director
of Urban Markets shall seize and remove any items offered for sale in a market stall that he regards to be
offensive to standards in the Hong Kong community”. Section 2 further provides that “The Director of
Urban Services shall have the power to grant, renew, suspend or revoke market-trading licences on such
conditions or under such circumstances as he thinks fit”.

On the first day of going on sale, Wong sold 25 of the “Revenge” T-shirts. The next day, Wong received
the following letter:

Pursuant to Section 18 of the Urban Markets Ordinance you are hereby required to
remove the “Revenge” T-Shirts from your market stall. You are further required to send
these offensive T-shirts to our Department immediately for their destruction. Best
regards, Director of Urban Markets.

Wong thought it would be a great waste to send the T-shirts to the Urban Markets Department given that
they would be destroyed. He regarded the T-shirts to be “just a bit of fun” and “not to be taken literally”.
He therefore decided to give away the remaining 175 T-shirts for free and did so within hours in the
market. Wong indicated afterwards that he did not receive a single complaint about the contents of the
“Revenge” T-shirt.

The next week, Wong received another letter:

I note that you have defied the Director’s demand that you send the offensive T-shirts to
our Department. Having distributed these offensive items to members of the public, you
have committed an offence contrary to Section 18 of the Urban Markets Ordinance. I
have therefore decided to revoke your market-trading licence with immediate effect and
impose a fine upon you of HK$250,000. Best regards, Director of Urban Markets
An Editorial in the Pineapple Daily newspaper challenged the suggestion that the T-shirts would cause
offence in Hong Kong. The Editorial also doubted the impartiality of the Director given that his sister is
married to a German man.

Advise Wong on the possible grounds of judicial review.

1. Procedural fairness

Wong could first rely on the ground of procedural fairness.

First, Wong has the right to a fair hearing. For forfeiture cases, since individuals’ preexisting legal
interests are being interfered with, a very high degree of procedural fairness is required (Lau Siu
Lai). The Director’s decision involves the forfeiture of Wong’s market-trading licence and an
imposition of HK$250,000 fines. However, the forfeiture decision was effected immediately and
does not provide any avenues of redress. Although there is no absolute right to an oral hearing,
oral hearing should be arranged if the decision is of grave consequence (Liu Pik Han). Here,
given the gravity of the forfeiture decision and the heavy imposition of fines, Wong should be
allowed to have an oral hearing where he is provided with the avenue to argue his case.
Additionally, although there is general duty for the authority to give reasons, reasons should be
given where the decision appears to be aberrant (Pear Securities) and where important legal
interests are interfered with (ex parte Doody). The reasons have to be adequate (Oriental Daily).
Here, the Director fails to give adequate reasons to explain why Wong’s T Shirts constitute an
offence to the standard of Hong Kong’s community and what exactly is the standard of Hong
Kong’s community.

Second, Wong has the right to an unbiased hearing. Apparent bias arises where the circumstances
would lead a fair-minded and informed observer to conclude that the decision-maker could be
biased (Porter v Magill).

2. Illegality

The second grounds available for Wong is illegality.

First, decision makers should take relevant considerations into account and refrain from taking
irrelevant consideration into account (MA v Director of Immigration). Here, the Director fails to
take into account the relevant considerations that (1) Wong’s T shirts were desiged to commerate
“Nazi Hunter,” a show that is of great historical and educational significance that promotes world
peace instead of inciting violence of hatred in the specific context of Nazi; (2) Wong sold 25
T-shirts in the first day and when the T shirts were given away for free, 175 were claimed within
hours without a single complaint about the contents. The welcome attitude of Wong’s T-shirts
likely shows that the T-shirts are not offensive to Hong Kong’s community values.

Second, when making decisions, the authority shall keep an open mind (Epoch Group). Here, the
Director rigidly interpreted the standards in the Hong Kong community without proper regard to
 Wong’s intention of making the T-shirts, which he considered it to be a bit of fun without any bad
faith. The Director also interpreted the message on the T-shirts rigidly without regarding the
context in which the message arises.

Third, decision-makers’ express powers are bounded by what the statute allows for and implied
powers have to be necessary and incidental (PCCW-HKT Telephone v Telecommunications
Authority). An implied power shall not merely be convenient and the authority cannot imply
powers if there is a penal element involved (Man Hing Medical Suppliers). Expressly, the
Ordinance only allows the Director to “seize and remove” items from the market but not what the
Director required Wong to do, which is sending the T shirts to the Department for destruction.
First, the Director cannot imply the power to require Wong to send the T shirts since this is
arguably due to the reason that it’s convenient for the Director to do so. Second, as this involves
the penal consequences of licence revocation and fines, the Director cannot imply the power to
impose fines.

3. Irrationality

Wong could rely on the ground of irrationality. Here, Wong bears the burden of proof to show the
decision challenged is Wednesbury unreasonable. A decision shall not be disproportionate and
excessive (Chim Shing Chung). Here, while the alleged community value might be preserved, the
large fines and the immediate revocation of licences are a disproportionate response to Wong’s
alleged wrongdoing. Although how much weight to attribute to a consideration is generally a
matter for the authority, a decision is Wednesbury unreasonable if too little weight is placed on
important considerations (Chu Hoi Dick). Here, the Director clearly does not attribute much
weight to the context within which Wong made the T-shirts, which is a manifestation of popular
culture not to be taken literally but to be appreciated more as a joke.

4. The issue involves no practices or representations that could give rise to a legitimate expectation.
Therefore, this ground is not available to Wong.

5. Conclusion

In conclusion, Wong is likely to succeed on the grounds of procedural fairness, illegality, and
irrationality.

Question 3 (2017 mock exam question)

Transport for Hong Kong (‘THK’) (fictitious) is a statutory body that is responsible for passenger
transport services in Hong Kong.
The HKSAR Chief Executive (CE) serves as Chairman of the THK Board.

Section 4 of the THK Ordinance provides that “THK shall exercise its functions...in accordance with
such policy guidance as may be issued to it by the CE”.

Under Section 5, “THK has the power to do such things and enter into such transactions as are calculated
to facilitate, or are conducive or incidental to, the discharge of any of its functions.”

Section 11 regulates advertising on passenger transport services. Section 11(2): “The Managing Director
(MD) has the exclusive authority to approve applications for advertising on passenger transport vehicles
and must act in the public interest thereto.” Section 11(3): “The MD may consult with relevant parties
in determining the appropriateness of an advertisement.”

Furthermore, Section 2 provides that no decision taken under the THK Ordinance “shall be called into
question in any form in a court of law.”

The MD promulgated an advertising policy: “Advertisements will not be approved, or permitted to

remain on THK's services, if, in THK's reasonable opinion the advertisement is highly likely to cause
widespread or serious offence to members of the public.”

“Traditionalism” is a Christian organisation which promotes the view that, in accordance with Scriptures,
sexual relations should only take place between heterosexual married couples. After notable public
interest litigation to protect minorities, the group commenced an advertising campaign reasserting
“traditional” values. Traditionalism thus entered into a contract with THK for advertising on 100
double-decker buses (over a 30- day period) that travelled throughout Hong Kong, with the message “Not
Gay, Ex Gay and Proud!”.

In response, “Tolerance”, a group committed to equality, sought to advertise on Hong Kong buses, with
the message “Some People are Gay. Get over it!” and deliberately copied the design and colour of
Traditionalism’s advert. The MD considered and accepted Tolerance’s advertisement. Tolerance then
contracted with THK for advertising space on 100 double-decker buses (to run for 30-days) that travelled
throughout Hong Kong.

The Hong Kong Christian Times ran a story that was very critical on the first day of the Tolerance bus
advert. Having read this story, the CE was strongly of the view that the advertisement should be
withdrawn. The CE was concerned about his standing in the Christian community given that they may
think he supported THK’s decision. Internal correspondence revealed that the CE telephoned the MD and
“instructed” him to withdraw the advertisement. The advert was immediately removed from all buses.

MD explained his reasons to Tolerance, as follows:

I received six complaints from members of the public and had sight of the Christian Times story.
In sum, they regarded the advert to be socially divisive and controversial. Many did not think a
bus to be a suitable place to promote a political message which was written in combative terms,
 and which was disrespectful of their sincerely held beliefs. I also must have regard to the
Christian definition of marriage in Hong Kong. Ultimately, there are many other ways for
Tolerance to express its view, rather than for it to be intrusively displayed on the side of our
buses. I also took into account the views of the Chief Executive, which reinforced my own
concerns. In the circumstances, I was concerned that the advertisement may cause offence to
some members of the public and therefore had to be removed.

Advance arguments on behalf of Tolerance on the following:

1. Whether these issues are amenable to judicial review (10 marks)

First, the general rule is that the ouster clause does not affect the jurisdiction of an administrative
court, but the court can only review the legality or lawfulness of a decision but not its merits
(Anisminic Ltd). Here, the court cannot review the merits of THK’s decision to remove
Tolerance’s advertisements but could review if the decision is procedurally legal or not.

Second, as a general rule, purely contractual decisions by the government are private law matters
not amenable to JR, unless there is a sufficiently public element present (Ngo Kee Construction).
Since THK entered into the contract with both Traditionalism and Tolerance, prima facie, to
remove advertisements are contractual decisions not amenable to judicial review.

However, according to the source of power 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 (Hong Kong Rifle Association). Section 11(2) of the Ordinance provides for the
MD’s “exclusive authority” to approve applications and that he “must act in the public interests
thereto.” Additionally, according to the 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. (ex parte Datafin). Here, THK as a
statutory body, is charged with the regulation of public transportation and the advertisement
regulation falls within the ambit of public function.

Therefore, it is likely that these issues are amenable to judicial review.

2. The possibility of challenging the decision to withdraw the advertisement based on the
grounds of (i) ‘Illegality’ and (ii) ‘Irrationality’ (90 marks).

1. Illegality

First, a decision has to further the statutory objectives (Padfield) and the authority cannot use the
power to achieve an improper purpose (Wheeler). The decision to remove Tolerance’s
advertisements for the bus is clearly motivated by the Chief Executive’s concerns of his standing
in the Christian community. Therefore, the decision is to achieve a political purpose to serve the
 CE’s interests instead of achieving the statutory purpose of regulating passenger transport
services.

Second, decision makers should take relevant considerations into account and refrain from
irrelevant considerations (MA v Director of Immigration). If fundamental rights under the
Basic law are involved, public opinions should not be taken into account (ex parte
Venables). Here, the MD clearly took into account the CE’s political circumstances, as evidenced
by the internal correspondence and instruction, the six complaints of Tolerance’s advertisements,
and the Chritian definition of marriage in Hong Kong’s law. These are clearly irrelevant
considerations in determining the appropriateness of an advertisement. Instead, the authority
should demonstrate that they have taken the discretionary considerations as outlined in their
policy into account in their reasoning (MA v Director of Immigration). However, only citing six
complaints, the MD did not demonstrate why Tolerance ‘s advertisements would constitute a
widespread or serious offence to the members of the public, as is prescribed by the policy MD
promulgated.

Third, there is generally a presumption against delegation that a power can only be exercised by
the person conferred (Barnard). If there is a delegation, the delegation has to be authorized (Wise
Union Industries). While Section 4 of the Ordinance provides that policy guidance shall be issued
by the CE, it was in fact the MD that actually promulgated the advertising policy.

2. Irrationality

To challenge on the ground of irrationality, Tolerance bears the burden of proof that MD’s
decision is Wednesbury unreasonable.

First, a decision is irrational if there is a lack of evidentiary foundation (the ICON Bar case). In
the reasoning, the MD only cited six complaints of Tolerance’s advertisements. The evidence is
clearly far from enough to establish MD’s concerns that the advertisements are likely to cause
widespread or serious concerns to the public.

Second, a decision is irrational if it’s illogical. Tolerance’s advertisements merely say “Some
People are Gay, Get Over it!” It is illogical for MD to conclude from the wording that the
advertisements are political messages.

Third, a decision is unreasonable if it involves unjustified differential treatment (the ICON Bar
case). MD stated that Tolerance’s advertisements are unsuitable because they involved political
messages with combative terms, which could be offensive to some sincerely-held beliefs.
However, Traditionalism’s advertisements, which read “Not Gay, Ex Gay and Proud” which
sends an anti-LGBTQ messages and denying their equal rights of human dignity are arguably
more combative than Tolerance’s advertisements. However, only Tolerance was targeted.
 Fourth, MD’s reasoning that Tolerance’s advertisements are offensive is irrational because it is
out of step with accepted moral standards (Zestra Asia). Hong Kong is a mature and pluralistic
community where diverse beliefs and backgrounds are celebrated. As LGBTQ movements have
been gaining great momentum in Hong Kong, Tolerance’s pro-LGBTQ advertisements should not
be removed on the ground of offensiveness.

Final Revision

Question 1

With the outbreak of COVID-19, the Wonderland government took the following measure to contain the
spread of the virus. Note also that this is the only containment measure that they have taken to date.

Under Section 5(1) of the Public Licencing Ordinance (fictitious), the Director of Public Licencing
(‘Director’) has the power to “grant, suspend or revoke alcohol licences on such terms as he thinks fit”.
Section 6 provides that “The Director’s decisions shall not, under any circumstances, be called into
question in a court of law where he has certified that a public emergency exists”.

Following a number of reported cases of COVID-19 infections coming from one of Wonderland’s busy
drinking districts, the Director certified that a “public emergency” exists and that, with immediate effect,
he would be suspending alcohol licences in all 8,600 licenced premises in Wonderland “indefinitely”.
This included bars, restaurants and other relevant premises with alcohol licences including coffee shops.
This decision means that alcohol cannot be sold or consumed on the premises. Explaining the rationale for
this decision, the Director noted that “When people drink alcohol there is a chance that they become
intimate with strangers (hugging, kissing and sexual intercourse), which might in turn lead to the spread
of COVID-19. We just cannot take the risk of this happening.”

Scholars Coffee is a chain of coffee shops in Wonderland. It primarily sells coffee and food, but also has
an alcohol licence. Since the COVID-19 outbreak, Scholars Coffee has introduced additional cleaning
measures including to check the temperature of every customer entering and to require mask-use, as well
as to disinfect all surfaces every 20 minutes. It also has removed some tables and chairs from each of its
premises so that there would be greater distance between each of the remaining tables and chairs (about 6
feet) so that customers can observe “social distancing”.

Au, the flamboyant founder and owner of Scholars Coffee, gave an interview to the Pineapple Daily to
criticise the Director’s decision. Au noted:

The laws in Wonderland are not the laws of Nazi Germany, even if the Director of
Public Licencing wishes them to be. Why didn’t the government ban hotpot
 restaurants and mass gatherings if it was really concerned about the spread of
COVID-19?

The Director became aware of Au’s comments in the media. He wrote to Au:

I take great offence to your suggestion that I am a Nazi. You have 24 hours in which to
issue a public apology and to retract your statement. Otherwise, I shall have no choice
but to revoke your licence to serve alcohol forever.

Au did not issue a public apology. Instead he “doubled down” by posting on the social media page of
Scholars Coffee (which has 150,000 followers) what he regarded as a “ridiculous” threat by the Director to
revoke their licence to serve alcohol. Au noted: “I did not call him a Nazi, although he is certainly acting
like one”.

The Director then wrote again to Au to confirm that the alcohol licence of Scholars Coffee would be
revoked forever.

Au later came across the Director’s social media pages. These indicate that the Director is a devout
religious Christian. The Director, who does not drink alcohol, previously expressed his personal view on
these pages that “overindulgence in alcohol leading to drunkenness is sinful”.

Au sees it as his civic duty to legally challenge the Director’s alcohol ban on behalf of all licenced
premises. Au also disputes the legal basis for the Director to revoke his alcohol licence “forever”.

Advise Au (on arguments favourable to him)

Preliminary issue: access to judicial review

● Ouster clause not effective
● Au has standing as his cafe is directly affected by the ban

Challenging the Director’s Alcohol Ban

● Fettering discretion
○ Suspending the licence in all 8,600 premises without allowing exceptions (absence of
exceptions); some premises have taken great precautionary measures to achieve disease
controls
● Relevant considerations
○ Fails to consider that premises such as cafes where people tend not to consume as much
as alcohol as they are in a bar and there is usually less movement and body interaction in
a cafe
● Wednesbury unreasonableness
○ Lack of evidentiary foundation to support that alcohol consumption would lead to
intimate behaviours
 ● However, given the grave public health consequences that might result from not allowing the
Director to impose the alcohol ban, the Director of Public health is in a better position to
implement public health policies, and this is the only containment taken by the city so far, the
court is likely to defer to the government on the point that if there exists a “public emergency.”

Challenging the Director’s Decision Targeted at Au

● Procedural fairness
○ Licence revoked forever: a forfeiture case
○ Should give notice and adequate reasons; should allow oral hearings and legal
representation
○ Rights to an unbiased hearing; Likely no apparent bias arises from Director’s anti-alcohol
remarks (the fair-minded and informed observer test)
● Illegality
○ Improper purpose; the Director revoked Au’s licence not to achieve the statutory purpose
of licencing regulation but merely for personal revenge because he is offended by being
called a Nazi and Au did not issue a public apology.
● Irrationality
○ Disproportionality: excess penalty as the licence is revoked forever

Question 2

The Criminal Justice Ordinance (fictitious) grants the Commissioner of the Correctional Services the
power to set the minimum sentence for deterrence and punishment that will be served by children
convicted of murder.

Section 2 of the Ordinance states: ‘The Commissioner of the Correctional Services must have regard to
all relevant factors when deciding upon the length of sentence to be served’.

Section 4 of the Ordinance states: ‘The Commissioner of the Correctional Services may have regard to
relevant previous convictions when determining the relevant sentence’.

Section 10 of the Ordinance states: ‘The decision by the Commissioner of the Correctional Services shall
not be questioned in any legal proceedings whatsoever’.

Thomas is aged 11 years and was recently convicted of the brutal murder of a fellow child named James.
Thomas stabbed James with James’ own knife following an argument.

The trial judge and the Chief Justice recommended that Thomas serve 5 years imprisonment as the
minimum sentence for deterrence and as punishment. A psychologist’s report was filed at the Home
Office suggesting that Thomas is suffering from child-abuse syndrome as a result of his father having
beaten him for many years.

Thomas has a previous conviction for criminal damage.

The Commissioner of the Correctional Services has recently written to Thomas through his solicitor, as
follows:

‘The Commissioner of the Correctional Services generally takes a serious view of this sort of
crime and considers that normally a minimum of 7 years is an appropriate sentence. He also has
to take account of the public interest in your case. He has received a large number of letters and
petitions which have expressed concern about your crime and the level of sentences imposed on
child-killers in general. He notes the pre-meditated nature of the offence, which is evidenced by
the fact that you used your own knife to stab the victim. He is of the further view that you will
present a continuing risk to the public for many years to come and that any sentence must ensure
that you are not released prior to this risk being minimal. He has also taken into account the fact
that you are a persistent offender with a previous conviction. Finally, he has considered the recent
spate of child-killings and is promoting a bill in Legco to tackle the same. In light of these factors,
he proposes a minimum sentence of 10 years.’

Best wishes, Commissioner of the Correctional Services

Does Thomas have any grounds upon which he may seek judicial review of the Commissioner’s
decision to propose a minimum sentence of 10 years.

Preliminary issue
● The ouster clause has no effect

Procedural fairness
● Fundamental right of freedom is involved, a very high level of procedural fairness is required
● Consultation, notice, oral hearing and legal representation (disciplinary and serious consequences
of years of imprisonment)

Illegality
● Relevant considerations
○ Where fundamental rights under the Basic Law and restraining of liberty are involved,
public opinions or petitions shall not be taken into account.
○ The recent spate of child-killing is irrelevant consideration
○ Fails to demonstrate in the reasoning that the Commissioner has taken into account the
CE and the trial judge’s recommendation and the psychologist’s report
● Error of facts
○ The knife belongs to the victim not Thomas

Wednesbury unreasonableness
● Lack of evidentiary foundation
○ As to why the Commissioner thinks that Thomas would be a continuing risk to the
community
 ○ As to to what extent a 10 years’ sentence minimize the risk posed by Thomas compared
to the normal 7 years’ of sentence
● Illogicality
○ Not a logical conclusion that Thomas is a persistent offender while he has only been
convicted once before for criminal damage
● Inappropriate weighting of relevant consideration
○ Previous conviction for criminal damage is given excessive weight while it is only a
relatively minor offence compared to murder

Question 3

You act for Phoebe who is a former member of an extremist political party known as ‘The Green
Guerrillas’. The party is well known for its highly controversial methods of protest. Phoebe was jailed in
1987 for a bombing outrage in the New Territories that killed a number of innocent passers-by. She is
subject to a sentence of 25 years’ imprisonment, which means that her expected date of release is 2012.

Her release before this date may be ordered at the discretion of the Prison Board of Visitors, but only after
referral by the Commissioner of the Correctional Services, pursuant to section 8 of the Criminal Justice
(No-Nonsense) Ordinance 1989 (fictitious).

Section 9 of the Ordinance states: “The Commissioner of the Correctional Services may at his discretion
refer cases referred to in section 8 to the Prison Board of Visitors”.

Section 10 of the Ordinance states: “Before deciding to refer in accordance with section 9, the
Commissioner of the Correctional Services should consult with such interested parties as seem
appropriate in the circumstances”.

After having served the first 10 years of her sentence, Phoebe was allowed to go home on leave for two
weekends every year. During her first leave period, she committed a number of offences. These included
threatening a neighbour and the theft of a few small-value items. Phoebe has since renounced violence
and is now a member of the 'Peace and Goodwill Movement'. This is a national organisation that seeks to
promote non-violent resolution to political problems. Members of the organisation have frequently
appeared on television promoting the organisation’s views.

In response to a request for a referral, Phoebe received a letter from the Commissioner of the
Correctional Services last week stating: “I have decided to refuse to consider this case for a referral.
Under the Criminal Justice (No-Nonsense) Ordinance 1989, I have such discretion and I do not have to
furnish reasons for my decision.”

The Commissioner of the Correctional Services recently appeared on a television news programme.
During the programme the Commissioner of the Correctional Services expressed his disgust at offenders
who committed crime whilst on home leave.

Phoebe now learns that the neighbour whom she threatened on her first period of leave is a cousin of the
Commissioner of the Correctional Services.
Are there any grounds justifying judicial review of the Commissioner’s decision to refuse referral of
Phoebe’s case to the Prison Board of Visitors.

Procedural fairness
● An application case, which does not require a high degree of procedural fairness
● Duty to consult provided expressly by the statute but it can be inferred from the Commissioner’s
failure to give reasons that the Commissioner has failed to discharge the duty
● Generally no duty to give reasons
○ Important legal interests are affected by a decision. Phoebe has been in prison for 23
years, and in an analogous situation, the Commissioner has a duty to give reasons to
Phoebe.
○ Reasons must be adequate
● Phoebe has the right to an unbiased hearing. The test for apparent bias is that would the
circumstances lead a fair-minded and informed observer to conclude that there was a real
possibility that the decision-maker was biased (Porter v Magill)? Here, a fair-minded and
informed person is not likely to regard the fact that the Commissioner’s cousin had been
threatened by Phoebe to give rise to the Commissioner’s bias against Phoebe. A fair-minded and
informed person would understand that the Commissioner could hold personal views and keep
these separate from the administrative decision-making (Li Chau Wing). However, the principle
of necessity may prevent the Commissioner from being subject to the rules against bias as the
Commissioner is the only person allocated with the power to make the referral.

Illegality
● Improper purpose: Arguably the rejection to refer is motivated by the Commissioner’s disgust of
Phoebe as someone who had committed crime whilst on home leave and the fact that the
Commissioner’s cousin had been threatened by Phoebe years ago. In this regard, the
Commissioner’s rejection is not to achieve the statutory purpose of criminal justice
● Relevant consideration
○ Commissioner’s discretion conferred by the statute is not absolute and is still subject to
objective assessments
○ Failed to consider that
■ Phoebe being a member of the “Peace and Goodwill Movement”
■ She had not committed any offences while on home leave in the past 12 years

Wednesbury unreasonableness
● Inappropriate weighting of relevant consideration
○ Excessive weight placed on the fact that Phoebe had committed offences whilst on home
leave (very long time ago and minor offences)
○ Too little weight placed on Phoebe’s membership in “Peace and Goodwill Movement”

Question 4

The Body Scanner

Section 4 of the Airport Ordinance permits the Airport Authority (AA) to adopt such measures, including
by-laws, 'to ensure airport and airline security', with such decisions not subject to 'judicial review in any
form by a court of law'.

In April 2010, following greater incidents of security threats around the world, the AA decided to
introduce the use of body scanners at airport security points. The body scanners, as a supplement to
manual body searches, allow airport security personnel to view travellers as though they were naked in
order to identify any concealed items posing security threats. Currently, body scanners are used
selectively by the AA where airport security believe a traveller fits the profile of a ‘terrorist’. The AA
announced this month that all travellers will be subject to body scan checks in the near future.

The Equal Opportunities Commission (EOC), a statutory body, seeks to challenge by judicial review the
AA's use of body scanners.

The Airport Charges

Section 8 of the Airport Ordinance provides for the imposition of 'reasonable charges' on airline
passengers to cover the cost of ‘operating’ the airport. The Competition Commission (CC), a statutory
advisory body under the Airport Ordinance, has recommended to the AA that the airport charge be limited
to $500 per passenger in 2010. The CC said, with all 10 members of its advisory board in unanimous
agreement, that at a time of global economic downturn, any increase above HK$500 would be excessive.

Despite this recommendation, the AA decided to increase airport charges from $500 to $1,500 per
passenger in 2010. The AA justified this increase so that they could financially support the building of the
new runway and to pay bonuses to the senior management. The AA said that while the views of CC were
relevant, they formed only one set of considerations for the AA to take into account.

Stripes Airlines, a leading airline specialising in short-haul flights, seeks to challenge the passenger
charge increase.

The 'Booze Ban'

Pursuant to s.4 of the Ordinance, the AA passed a by-law in January 2010 to prohibit the consumption of
alcohol at the airport: 'Anyone found to be, or being suspected of, consuming alcohol at the airport shall
receive a fine of $100,000'. Mr. Wong was found to be consuming a can of beer at the airport and he
received a fine.

Wong refused to pay the fine, and as a result he has been summoned to appear before a Hong Kong
magistrates court in June 2010. Wong seeks to challenge the validity of the by-law. The AA has also said
that he cannot enter the airport until he has paid the fine, despite the fact that he has been using the airport
without problem up until now.

Advise the Equal Opportunities Commission, Stripes Airlines and Wong

EOC
● Ouster clause has no effect
● EOC has no personal standing
 ○ May have representative standing if there is evidence of racial or national profiling
○ However, likely no representative standing if the body scanner is introduced to everyone
(no equality issue involved therefore)
● Within the statutory purposes
● Wednesbury unreasonableness
○ Differential treatment if racial profiling
○ Arguably not unreasonable if the body scanner is applied equally to everyone

Stripes Airlines
● Stripes likely to establish personal standing as it has sufficient interests in the issue
● Improper purpose: Building a new runway and paying bonuses to the senior management are not
to achieve the statutory purpose of covering the costs of airport operation.
● Excess of power: AA cannot imply the power to increase the airport charges merely it is
profitable
● Wednesbury unreasonableness
○ Lack of evidentiary foundation as to why the charges should be increased to $1,500
○ Too little weight placed on the unanimous decision of CC (the recommendation provides
a baseline for assessing the reasonableness of the decision)

Wong
● Illegality
○ Fettering discretion: the by-law does not allow for exceptions. The authority should not
simply impose the $100,000 fines on anyone suspected of consuming alcohol but should
keep an open mind to investigate and to take into individual circumstances. For example,
someone may drink herbal alcohol for medical reasons and these people shall not be
subject to the fines.
● Wednesbury unreasonableness
○ Lack of evidentiary foundation and illogical to support that to control the consumption of
alcohol could positively contribute to the level of security at the airport
○ The fines imposed are too excessive

Essay Preparation

Structure
● Introduction
○ This question is asking…
○ Perspective/argument on the question
○ A mini-road map
● Main body (5-7 paragraphs)
● Conclusion
 Wednesbury Unreasonableness v. Proportionality

‘…[U]nreasonableness has an internal logic and structure. It is not necessarily the case that Wednesbury
needs to be jettisoned in favour of the more “structured” and “reasoned” proportionality standard’ (Daly,
‘Wednesbury’s Reason and Structure’ [2011] Public Law 238-259).

Do you agree? Give reasons.

Three main issues:

● Does Wednesbury unreasonableness have internal logic and structure?
● Should Wednesbury unreasonableness be jettisoned?
● Should Wednesbury unreasonableness be replaced by proportionality

Argument
● Although the applicability of Wednesbury in Hong Kong may have been undermined by Hong
Kong’s political realities and the sliding scale of proportionality review, Wednesbury still
provides the necessary check and balance to fill up the common law vacuum created by
proportionality review.

Wednesbury does have its own internal logic and structure.

● The underlying logic for Wednesbury unreasonableness is that there is no absolute and unfettered
discretion in the realm of public law. It allows the court to intervene in judicial administrative
decision-making when the decision is so unreasonable that no reasonable decision maker could
make it. As Walker points out, Wednesbury unreasonableness provides an extra safeguard
mechanism to supplement illegality review to ensure that the discretionary power is not exercised
in a manner inimical to society’s bedrock values. Wednesbury helps correct “public wrongs” in
cases where an administrative decision is legal, as it has taken all relevant considerations into
account, but still outrageously unreasonable.
● Lord Irvine points out the threefold logic of Wednesbury unreasonableness, which echoes a green
light interpretation of administrative law. First, the constitutional imperative of separation of
powers provides that the power public authorities exercise is conferred by the legislature which
intends such power to be exercised by the authority it entrusts. Second, the democrative
imperative provides that public authorities are implementing a public democrative will and
unelected judges should to some extent defer to the exercise of democrative mandate. Third, the
expertise imperative points out that judges may not have the necessary knowledge or expertise
compared to their executive counterparts to arrive at an informed decision, especially when such
decisions concern macro socio-economic policies.
● Structurally, Wednesbury has developed over time to incorporate a sliding scale of review beyond
the initial high threshold of judicial outrage to provide more individual protection outside the
context of rights. Notably, the anxious scrutiny is developed to provide that the greater the
interference with individual rights, the more the court will require by justification. Anxious
scrutiny has found its use particularly in the refugee context. For example, in MA v Director of
Immigration (2011), Andrew Cheung applied the more vigorous examination of anxious scrutiny
 to decide to challenge the policy that deniess torture claimants and mandted regugess the
opportunity to work in Hong Kong.

Should Wednesbury be jettisoned and Replaced by Proportionality?

● However, Wednesbury is also inherently flawed. As Lester and Jowell point out, the vagueness of
what exactly constitutes “unreasonableness” allows judges to obscure their special
socio-economic preferences more easily rather than having to comply with established legal
principles. For example, in QT v Director of Immigration (2018), the CFA read into Wednesbury
unreasonableness the four-step proportionality test. Although the proportionality test upholds the
minority LGBTQ rights in the absence of applicable Basic Law rights, the decision renders
Wednesbury unreasonableness as an empty vessel for the court to put in whatever they see fit,
further contributing to the uncertainty and inconsistency of Wednesbury review. Furthermore, the
constitutional imperative underlying Wednesbury is compromised by Hong Kong’s executive-led
system. The British parliamentary supremacy does not find its competent counterpart in Hong
Kong. Therefore, Wednesbury as “a British export,” as Dykes argues, may find its faithful
applicability in Hong Kong compromised by the presence of a relatively weak LegCo and an
undemocratically-elected executive branch.
● Some have argued that the “manifestly without reasonable foundation” standard developed in
constitutional proportionality jurisprudence suggests the unification of Wednesbury with
proportionality. For example, in Fok Chun Wa (2012), a straightforward application of
Wednesbury in the constitutional context, the CFA cited ex parte B (1995) to defer to the
government’s decision making regarding medical resources allocation on the standard of
“manifestly without reasonable foundation.” The overlap of Wednesbury with deferential
proportionality further strengthens the prima facie case that Wednesbury is of no longer use in
judicial review.

Limitations of Proportionality and the Continuing Use of Wednesbury

● However, proportionality does not come without limitations and Wednesbury makes up for some
of the gap these limitations create in judicial review. First, courts do not always apply the
“manifestly without reasonable foundation” standard in a quasi-Wednesbury manner. In Kong
Yunming (2013), the CFA, although applying the “manifestly without reasonable foundation”
standard, made a value judgement that the saving of around 764 million HKD from increasing the
CSSA threshold to require severn-year residency is a relatively insignificant number. The
inconsistency between Fok Chun Wa and Kong Yunming suggests that at least normatively, the
“manifestly without reasonable foundation” cannot always be equated with Wednesbury.
Although proportionality is structured with a four-step test confirmed in Hysan Development
(2016), the subjective uncertainty is one that constitutional proportionality review cannot avoid.
● Second, proportionality presupposes an interest which could then be subject to an evaluative
exercise on the part of the court, and it is only with such interests as an anchor point that common
law proportionality review is made possible. Proportionality review is only available in discrete
instances in common law. For example, the court in Society for Protection of the Harbour (2004)
held that the statutory presumption against reclamation in the harbour could only be rebutted by
 establishing an overriding public need for reclamation. This echoes the third stage of the
proportionality test as there may be a much less costly and equally effective alternative to achieve
land use. Another example of discrete instances is legitimate expectations. For example, in ex
parte Coughlan (2000), the legitimate expectation of Ms. Coghlan to have a “home for life” at
Mardon House nursing home provides an anchor point for proportionality review. Therefore, one
problem of generalizing proportionality is that it assumes the common law has developed a clear
understanding of all interests involved in a case. In situations where rights and interests are not
clearly defined, as is oftentimes the case for common law review absent a constitutional right,
proportionality may lose its applicability as these interests may be hard to balance. Thus, this
limitation of proportionality creates a common law vacuum where Wednesbury is still applicable
to provide the necessary check and balance to substantively review administrative discretion.

LAWS6020ABC Principles of Administrative Law

Exam Review: Problem Question (Weeks 1-5)

Consider this hypothetical.

Jeffrey has been the Secretary for Land Development since July 2016. Prior to joining the HKSAR
Government, Jeffrey worked in the private sector as the director of Tycoon Land Development Company
Limited (“Tycoon”).

In December 2016, it was reported in the media that Jeffrey had entered into an agreement (“Agreement”)
with Magnate Land Development Company Limited (“Magnate”) shortly before he took office. At the
material time, Magnate was in the process of acquiring Tycoon. Pursuant to the Agreement, Magnate
would pay Jeffrey HK$100 million so that Jeffrey would be favourably disposed to Tycoon in his official
capacity. The payments were allegedly arranged to be made in two instalments, in 2017 and 2018, after
Jeffrey joined the HKSAR Government.

The media report sparked controversy. In January 2017, the Anti-Corruption League (“ACL”) reported
the matter to the Independent Commission Against Corruption (“ICAC”), alleging that Jeffrey has
committed various criminal offences including, inter alia, the common law offence of misconduct in
public office (“MIPO”).

On 1 October 2019, the ICAC announced that no further investigative action would be taken. On the same
day, i.e. 1 October 2019, the Department of Justice (“DOJ”) made the decision (“Decision”) not to
prosecute Jeffrey since there was insufficient evidence to support a reasonable prospect of conviction
against Jeffrey for any criminal offence.
Abigail, a social activist, was very unhappy with the Decision. She was convinced that the Decision was
unlawful because her friend Flora, who is a Senior Counsel, advised her that the DOJ had clearly erred in
applying the law on MIPO.

Upon hearing Flora’s advice, Abigail expressed an interest in seeking a judicial review of the Decision.
However, Flora’s work commitments have made it impossible for her to advise Abigail further.

You are Flora’s pupil barrister. Flora sent Abigail to approach you for legal advice. In particular, Abigail
wants to know how likely the Court of First Instance will grant her leave to apply for judicial review
against the Decision.

Advise Abigail.

● Standing
○ Sufficient interest required
○ Not likely personal standing
○ Could argue that there is a wider point of public interest - representative standing
■ Potential corruption of public officials and the public confidence in the
administration clearly of great public interest significance
■ Need to vindicate the rule of law
■ However, there may be more competent applicants
● Clearly a public law issue
● Reasonable arguability
○ Flora as a senior counsel said clearly error of law
● Limits
○ Can review decision not to prosecute
○ Time delay

Public law/private law issue