THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW

LLB CONSTITUTIONAL LAW (2024-2025)

TUTORIAL FOUR

In this tutorial, we will finish the discussion of questions from previous tutorials
and discuss the following questions. Please read the materials on “Introduction
to Constitutional Rights” in preparation for the following questions.

1. From the case law on constitutional rights, especially HKSAR v Ng Ngoi

Yee Margaret [2024] HKCFA 24 and Hysan Development v Town
Planning Board (2016) 19 HKCFAR 372, can you ascertain the issues
that the courts generally have to reason through in assessing an alleged
violation of constitutional rights?

HKSAR v Ng Ngoi Yee Margaret

Lecture:

 Stage 1:The court identifies the right at stake and the impugned measure

 Stage 2:It defines the right to see if the impugned measure prima facie limits the right
(commonly known as rights definition stage)

 Stage 3:If there has been a limit of right, the court assesses if the limit is permissible
(commonly known as rights limitation stage)

– Caveat: measures that violate the core or essence of a right are not just
limitations/restrictions; they derogate from the right altogether=>not allowed (eg Bahadur;
W)

Hysan four-step proportionality inquiry (“Stage 3”), asking:

(i) whether the infringing measure pursues a legitimate aim;
(ii) if so, whether that measure is rationally connected with advancing that aim;
(iii) if so, whether that measure is no more than reasonably necessary for that
purpose; and
(iv) whether a reasonable balance has been struck between the societal benefits of
the encroachment on the one hand, and the inroads made into the
constitutionally protected rights of the individual on the other, asking in
particular whether pursuit of the societal interest results in an unacceptably
harsh burden on the individual. This part of the assessment is sometimes
referred to as involving proportionality “stricto sensu”.

Stage 3: 2 tests or standards for reviewing:

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 - “no more than reasonably necessary” test (where only the least intrusive measures
reasonably necessary to achieve the legitimate aim are proportionate)
- test which treats only measures which are “manifestly without reasonable foundation” as
disproportionate.

The standard depends on the margin of discretion to be afforded to the originator of the
intrusive measure, which in turn depends on factors such as the significance and degree of
interference with the right in question; the identity, expertise and any peculiar knowledge of
the decision-maker; as well as the nature and features of the encroaching measure. [17]

 Stages 4-5: If the measure fails the tests for permissibility at stage 3, then the court decides
what remedy to grant

If the impugned measure passes the proportionality test, it is held to be a permissible

derogation of the right in question.
If it does not pass that test, the court proceeds (“Stage 4”) to consider whether any remedial
order (such as for severance, reading in, reading down or striking out) should be made to
preserve the validity of the impugned measure in whole or in part

For encroachments which do not raise issues of proportionality (eg. the impugned measure
may not satisfy the “prescribed by law” requirement in that it lacks legal certainty/ which is of
a nature expressly excluded by a constitutional provision)
- the court can skip stage 3 and go to stage 4 and consider whether some remedial order
might be appropriate; if not, declares the impugned measure unconstitutional and invalid

2. In Hysan Development v Town Planning Board (2016) 19 HKCFAR 372,

the CFA added a 4th limb to the proportionality test. What is this limb,
and what is the court’s rationale for adding it?

Starting from [64]

4th limb: fair balance

striking a fair balance “between the demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental rights

Rationale:

- [73] One would hope and expect that most laws and governmental decisions at the sub-
constitutional level internally reflect a reasonable balance between the public interest
pursued by such laws and the rights of individuals or groups negatively affected by those
laws.
- Mostly, measures passing the first 3 steps would be unlikely to fail the 4 th step, but one
may exceptionally be faced with a law whose content is such that its application produces
extremely unbalanced and unfair results, oppressively imposing excessive burdens on the
individuals affected.
- [76]: the requirement of such a fair balance being inherent in the protection of
fundamental rights. (protection of the right for the court to consider what can be done)

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 - [78]: Without its (4th limb) inclusion, the proportionality assessment would be confined to
gauging the incursion in relation to its aim. The balancing of societal and individual
interests against each other which lies at the heart of any system for the protection of
human rights would not be addressed.

Critique:
In assessing whether a government measure falls within a range of reasonable
alternatives, the court would already have had to assess whether the limitation
was reasonable in light of its harm to the right => overlaps the 4th limb

3. According to Hysan Development, what are the different standards of

review in relation to the 3 rd limb of the proportionality test, and how
should the courts determine which standard to use? Why did the CFA
introduce the formulation of “reasonable necessity”?

Standards:
- Reasonable necessity test (where only the least intrusive measures reasonably necessary
to achieve the legitimate aim are proportionate)=> minimal impairment approach
- manifestly without reasonable foundation (only measures that are manifestly without
reasonable foundation are disproportionate)
[120]: Assuming that such measure pursues a legitimate aim and is
rationally connected to achieving that aim, the Court will not be astute
to insist on a potentially less intrusive measure but will only intervene
to strike down the impugned provision as unconstitutional if “the option
chosen is clearly beyond the spectrum of reasonable options” to deal
with the problem.

How should the courts determine which standard to use

- [106]: the choice of the standard for the Court’s intervention depends
on the extent of the appropriate margin of discretion,
determined by factors which affect the proportionality analysis in the
circumstances of the particular case. In cases calling for a wide margin
of discretion, the “manifest” threshold may well be apposite, whereas
cases admitting of a narrow or no margin of discretion are more
appropriately analysed on the basis of “reasonable necessity”. Which
standard or threshold to choose therefore depends on the
appropriate width of the margin.
- Appropriate width of the margin depends on (1) significance of right and extent of
interference with the right and (2) the measure’s content and features (Identity and
constitutional role of decision-maker –Special competence of decision-maker)
- [109]: The specific right invoked may have a low significance and the
lower the significance, the broader the margin of discretion is likely to
be.
- [112]: lower interference of right => broader margin of discretion (easier to justify)

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 - [115]: If assessment of the proportionality of the measure calls for the
application of purely legal principles and an assessment by Court, the
primary decision-maker having no special competence or expertise=>
use reasonable necessity directly
- [116]: where the decision-maker is likely to be better placed than the
Court to assess what is needed in the public interest=> use ‘manifestly
without reasonable foundation’ as the court needs to consider the view
of the decision maker (eg national security cases) and because of
separation of power

Why did the CFA introduce the formulation of “reasonable necessity” (Strict vs reasonable)

- Fok Chun Wa v Hospital Authority: problem of strict necessity test: a judge would be
unimaginative indeed if he could not come up with something a little less ‘drastic’ or a
little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike
legislation down.
- Rationale: Flexibility for the court to give value judgment
- If use the test of manifestly without reasonable foundation, deviates too much from the
norm; difficult to justify
- Case law: other options available do not mean that the existing legislation is invalid

4. In Hysan Development, what specific types of cases did the CFA use to
illustrate circumstances it would defer to the original decision-maker
when applying the proportionality test?
Cora Chan: deference refers to the court giving leeway to the government in assessing the legality of
the latter’s decisions.

[98]: In some circumstances it will be appropriate for the courts to recognise that there is an area of
judgment within which the judiciary will defer, on democratic grounds…

[117] The Court is likely to take such an approach, for instance, in relation to matters touching on
national security. In Hong Kong there are, additionally, limitations placed on the Court’s role on
questions touching on defence and foreign policy

Fok Chun Wa v Hospital authority involving mainland Chinese visitors to be charged a higher rate
when giving children in public hospital => appellant argued that she shared a relevant similarity with
an eligible person in that both were bearing the child of HK resident and HK would be the centre of
life for both upon the birth of the child

Caveat : no core value contravened – in certain situations, less deference accorded ( core value : more
deferential -> reasonable necessity ) Low significance (e.g. expression through pornography) scrutiny
would be less, the court give more deference
(same principles applied in Kong Yunming v the director of Social Welfare and Yao Man Fai v the
Director of Social Welfare)

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General tips: to read what has not been said

Courts are forced to be in the position to use legal reasoning to justify a harder position, which is
politically necessary

Rationale legal argument together: can put in politics part

5. What are the commonly cited reasons for deference? Are they valid
(generally and in the context of Hong Kong)?

Deference: Best balance between competing interest in terms of restriction of right

Cora Chan: (general)

1. Whether the governmental authority possesses special institutional competence

2. Whether the governmental authority has special constitutional competence to deal with the
matter

a. Whether the matter warrants stronger checks and balances by the court, in which case the
court possesses a stronger constitutional duty to intervene

b. Whether the constitution expressly precludes or weakens the court’s involvement in a

particular matter

c. Whether the government authority possesses the democratic legitimacy to decide the
matter

The court can exhibit deference by

- Relaxing the standard of review

- Relaxing the cogency of the evidence required from the government to meet the standard
(afford a degree of weight to the government’s judgment that the legal standard has been
met)

- Less common: Adjusting the burden of proof (requiring the litigant to prove rather than
the government)

[117] The Court is likely to take such an approach, for instance, in relation to matters touching on
national security. In Hong Kong there are, additionally, limitations placed on the Court’s role on
questions touching on defence and foreign policy (1) (institutional competency)

Caveat: Cora Chan p.215: Chu Woan Chyi v Director Immigration: the government was unable to
point to any evidence demonstrating that the applicants posed a security threat=> the court ready to
accept that the government’s decision met the requisite admin law standards as the burden of proof
rested with the applicant

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However, after QT, the rule might have ruled differently in deferential disposition

Socio -economic policies on allocating scarce resources : more deferential

Fok Chun Wa v Hospital authority involving mainland Chinese visitors to be charged a higher rate
when giving children in public hospital => appellant argued that she shared a relevant similarity with
an eligible person in that both were bearing the child of HK resident and HK would be the centre of
life for both upon the birth of the child

Caveat : no core value contravened – in certain situations, less deference accorded ( core value : more
deferential -> reasonable necessity ) Low significance (e.g. expression through pornography) scrutiny
would be less, the court give more deference
(same principles applied in Kong Yunming v the director of Social Welfare and Yao Man Fai v the
Director of Social Welfare)

Immigration decisions: because BL vests the executive branch with the responsibility for overseeing
immigration control

Political judgments (Kwok Cheuk Kin v Secretary for Constitutional and Mainland affairs): courts are
constitutionally and institutionally unequipped to rule on them (but unclear what are political
judgment cases that warrants deference, courts seem to suggest that any decision on electoral rights
that they deem politically controversial=> wide margin of discretion)

Moral judgments:
- situations involving the definition of a social institution: the courts have emphasized that
a social institution must be defined by society, but not the courts eg. W: their approach
suggested that who is entitled to marry should be defined by societal views, albeit the
changing ones thought the majority of judged ruled in favour of the applicant
- moral controversy when the court is of view that there is no one right answer to question

Court needs to deal with the policy with 2 standards because of the characteristics of such system

Should pay less deference argument

- HK suffered democratic deficit, so the court should protect the rights of people more
- Political structure: underlying structure of HK, the deference should be more in line with
the political structure in HK now (less deference should comply with UK system instead,
not HK)

Critiques: (general)
- the courts adopt a spatial approach to deference, carving out the whole subject areas as
automatically warranting a small or large degree of deference: though this approach
increases the predictability, it is insufficiently sensitive to the forces for and against
judicial control within a subject matter=> eg even the courts lack expertise to adjudicate
nsl matter, very important rights may be at stake
- neglecting the nature of issues: they might be in the same area, but does not mean they are
of the same nature
- may lead to the risk of the courts affording a double dose of deference (eg in Fok Chun
Wa, the court afforded deference once it diluted the proportionality test to the looser test
and then again defer to government’s view, the same reason (the court’s lack of

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 institutional competence) underlay both counts of deference (the courts still have a
tendency to defer even after these 2 tests)
- nature of interest at stake and the extent should affect standard of review
- the court should not consider the primary decision maker being more institutionally and
constitutionally more competent (if a question of logic, the court will not be competent, if
value judgment problem, the court also do that always) => should not assume a
government’s good ability and good faith
- the court shall not consider that certain types of value judgments are best made by
democratically accountable bodies, as courts are mandated to ensure that the policy
decisions made by the government comply with the law and constitutional values

in the context of HK:

- the courts adopt a spatial approach to deference, carving out the whole subject areas as
automatically warranting a small or large degree of deference=> is insufficiently sensitive
to the forces for and against judicial control
- clear theme of democracy in BL: difficulties of assessing socioeconomic policy should be
dealt with through the 2nd means of deference but not by diluting the legal standards that
the government is in principle required to meet
- BL vesting decision-making power in the executive of legislature is not a reason to grant
greater degree of deference (no institutional confidence) (potential problems: there will
overriding on the political branch white they are not experts in socioeconomic matters,
may not balance the different needs of different ppl very well=> strong argument that the
court does not have institutional competency)
- Could be argued that courts can defer to LegCo and CE (more democratic than publicly
accountable officials ): not true in HK (1. LegCo and CE are elected in a biased way in
HK, may distort or misrepresent what the wider public wants (this may be true) 2. Those
elected by direct election may not suggest what the public wants either (but how does the
court ascertain what the public wants: courts are experienced in determining the means
and ends of a measure))
- Easier for government to establish an argument for policies made by civil servants as they
follow the process only
- Deference to decision maker only if they are usually right in 3 rd and 4th limb: in HK, the
executive and legislature's undisputed lack of sensitivity to minority right should be
considered here=> not likely a good practice to defer
- Oblique manner HK government treated security info in Chu Woan Chyi litigation and
real concerns that it may simply accept security advice from PRC without independent
vetting the court shall not defer or at least require the former to disclose the broad
skeleton of assessment

6. The CFA in HKSAR v Ng Ngoi Yee Margaret [2024] HKCFA 24 drew a

distinction between proportionality at two levels. What are the two
levels?

Background: LKH No 2 :can be divided to systematic (on legislation) and operational (on decisions
by public officials pursuant to legislation) proportionality challenges

[21]: Thus, the Court of Appeal in LKH No 2 was distinguishing between constitutional challenges at
two levels, differentiating between challenges relating to:
(a) legislative rules or provisions which are said to encroach upon a guaranteed right and
which are alleged to be unconstitutional in themselves irrespective of any facts
(“systemic” challenges); and

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 (b) acts or decisions of public officials performed or taken pursuant to a relevant
legislative or policy rule which are alleged to impinge upon such a right in the
circumstances concerned (“operational” challenges).

HKSAR v Ng Ngoi Yee Margaret: should modify the scope and terminology
 [29]: It would help if the distinction were drawn between (i) a challenge to the
constitutionality of a rule or policy itself (a “rule challenge”); and (ii) a
constitutional challenge to an impugned act or decision (a “decision challenge”)
taken pursuant to the relevant rule

7. What are the pros and cons of using the proportionality test to assess
limitations on rights? Does the structured proportionality test absolve
courts from making difficult value judgments?
Pros
- Clear structure for the court to decide on the constitutionality of the issues, step by step
analysis
- Require measures that are reasonably necessary, fairly balanced, affords sufficient
protection to rights (principles are reasonable to consider whether a measure is
proportional)
Cons
- the test itself requires the court to make value judgment but in certain issues (eg national
security) Hysan: [78] This requires the Court to make a value judgment as to whether the
impugned law or governmental decision but the court is slow to intervene the decision
maker as it would not like to exercise value judgment: have the assumption that the
decision maker has a more superior expertise than the court (discretion, but more
confined value judgement
- Value judgment eg legitimate aim (same-sex marriage): protection of one man one
woman marriage, why is that a legitimate aim
- Proportionality (in ERO): value judgment CFI: CE should not be given more power to
legislate back door; CFA otherwise
- In the context of HK may not be applicable: the test provides a common base ground to
develop their test; but given the divergence of political system => how applicable is the
proportionality test in our system given we have an executive led system in contrast with
full separation of power (the executive branch may be more likely than not to resist the
idea for the court to review, esp in politically sensitive cases, as it would like to follow (or
obliged to follow) PRC’s instructions
-

Pre Hysan:

In its first PA decision post-handover, the CFA in Ng Kung Siu also retained the colonial aversion to
structured proportionality (SP). Therein, when determining the constitutionality of a statutory ban on
flag desecration, the CFA merely assessed whether there was a legitimate aim for the law and whether
the law was necessary.

A three-stage PA was finally endorsed by the CFA for rights adjudication in Leung Kwok Hung v
HKSAR.