Seminar on Judicial Review
- Some Recent Developments
Professor Christopher Forsyth
21st March 2014
Civil Service Training and Development Institute
Civil Service Bureau
Some Reminders:
The Importance of Judicial Review
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“The growing number of judicial reviews in
Hong Kong should be viewed in a
‘constructive and positive way’ by both the
public and the government, the Chief Justice
[Andrew Li Kwok-nang] said
yesterday….‘Judicial review was the
cornerstone of good governance ensuring its
legality and fairness’”
South China Morning Post, December 11th,
2008.
Recognition of The Importance of
Judicial Review
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“Although defeats in judicial reviews can be
hard to swallow immediately, I am convinced,
and I know my conviction is shared by many
of my colleagues in the government, that the
commitment to the high standards of legality,
reasonableness and fairness, will improve
public administration….[Judicial review]
principles were now entrenched in the
government’s thinking process” Wong Yanlung, Secretary for Justice, reported in the
South China Morning Post, December 12th,
2008.
The Rise of Discretionary Power
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How does judicial review come to be so
important?
Judicial review has become so important
because of the growth in the power of the state
(across the world) during the 20th century.
If the state is to care for its citizens from the
cradle to the grave, to protect their environment,
to educate them at all stages, to provide them
with employment, training, houses, medical
services, pensions, and, in the last resort, food,
clothing, and shelter, it needs a huge
administrative apparatus.
The Rise of Discretionary Power
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Relatively little can be done merely by passing
Ordinances (and leaving it to the courts to enforce
them). There are far too many problems of detail, and
far too many matters which cannot be decided in
advance. No one may erect a building without planning
permission, but no system of general rules can
prescribe for every case.
Thus there must be discretionary power. If
discretionary power is to be tolerable, it must be kept
under two kinds of control: political control through
LegCo, and legal control through the courts. .
Judicial Review
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The response of the law to the growth in the
discretionary powers of the state has been the
development of administrative law (or judicial review)
The primary purpose of administrative law is to keep
the powers of government within their legal bounds,
so as to protect the citizen against their abuse. The
powerful engines of authority must be prevented
from running amok.
‘Abuse’, it should be made clear, carries no
necessary innuendo of malice or bad faith.
Government departments may misunderstand their
legal position as easily as may other people, and the
law which they have to administer is frequently very
complex and uncertain.
Judicial Review
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Abuse is therefore inevitable, and it is all the more
necessary that the law should provide means to
check it.
The practical application of the rule of law means
that the government must have legal warrant for
what it does and that if it acts unlawfully the citizen
has an effective legal remedy, usually know as
judicial review.
On this elementary foundation has been erected an
intricate and sophisticated structure of rules, which
are basically judge-made rules of common law.
What is Judicial Review?
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Judicial Review is a means by which the courts can
supervise how public servants, Government Departments
or other public bodies and authorities exercise their
powers or carry out their duties.
It is part of the rule of law. In HKSAR it rests on the
common law and article 35(2) of the Basic Law which
says:
“Hong Kong residents shall have the right to institute legal
proceedings in the courts against the acts of the
executive authorities and their personnel”
So there is no escape from it. It is part of the legal
landscape in Hong Kong.
There is a special procedure known as “the application
for judicial review” which will be mentioned below.
The Courts and Civil Servants
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But is wrong to see judicial review as a trial of strength
between the courts and the civil servants.
The court and the public servant both serve the state;
they should co-operate in ensuring the highest possible
standards of public administration.
The court should not “second guess” the civil servant
(who should know more about the matter than the judge).
And the civil servant should recognise that he will
sometime err in law in making decisions and the judge’s
task for - which he has both the authority and the
expertise- is to set him right.
There should in other words be an alliance between law
and public administration.
The Alliance between Law and
Administration
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In R. v. Lancashire CC ex p. Huddleston [1986] 2 All ER 941 at 945 Lord
Donaldson said:
“...the wider remedy of judicial review and the evolution of what is, in
effect, a specialist administrative or public law court is a post-war
development. This development has created a new relationship
between the courts and those who derive their authority from the
public law, one of partnership based on a common aim, namely the
maintenance of the highest standards of public administration. With
very few exceptions, all public authorities conscientiously seek to
discharge their duties strictly in accordance with public law and in
general they succeed. But it is must be recognised that complete
success by all authorities at all times is a quite unattainable goal.
Errors will occur despite the best of endeavours. ... The courts must
and do recognise that, where errors have, or are alleged to have,
occurred, it by no means follows that the authority is to be criticised.
In proceedings for judicial review, the applicant no doubt has an axe
to grind. This should not be true of the authority.”
These remarks are equally applicable in the HKSAR.
JOYS
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The UK’s response to the growing influence
of judicial review has been the production of
a booklet called “The judge over your
shoulder”.
It is affectionately known as JOYS
At first this was controversial in the legal
profession as it told civil servants how to
make their decisions “judge proof”.
But now it is widely considered to have led to
an improvement in the quality of decisionmaking in the UK.
HONG KONG JOYS
 In 2010 Hong Kong received its own JOYS.
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“The judge over your shoulder” is the title of a slim
book designed to inform civil servants of what they
need to know in making decisions, so that they can
make lawful decisions; and thereby make better
decisions and avoid the embarrassment to self and
department that a successful judicial review brings.
So I commend this book to you.
The Fundamental Distinction between
Merits and Review
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It is vital that the courts and the civil service should recognise
and respect their distinct areas of competence.
“The system of judicial review is radically different from the
system of appeals. When hearing an appeal the court is
concerned with the merits of a decision: is it correct? When
subjecting some administrative act or order to judicial review,
the court is concerned with its legality: is it within the limits of
the powers granted? On an appeal the question is ‘right or
wrong?’ On review the question is ‘lawful or unlawful?’ (Wade
and Forsyth)
There must always be a range of possible outcomes which the
civil servant can choose. Often called the “margin of discretion
or appreciation”
General Principles of Good
Administration: Jurisdiction
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That public authorities should only act within their jurisdiction, ie within
their legal powers.
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Here, for instance, is section 8 of the Landlord and Tenant (Consolidation)
Ordinance 2004:
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“(1) The landlord or tenant of any premises to which this Part applies
may apply to the Commissioner [of Rating and Valuation] in the specified
form for his assessment of the standard rent of such premises.
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So the Commissioner has the power to determine the standard rent of
“premises” but the applicant must be a (a) landlord or tenant (so not a
licensee) and (b) the “premises” must be in Hong Kong.
So the first inquiry is into whether these matters (a) & (b) are established.
If not, then whatever the Commissioner may have done is null and void.
This seems simple and self-evident.
But some very difficult and subtle questions arise.
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General Principles of Good
Administration: Procedural Propriety
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Decision-makers must always act fairly.
The phrases “the duty to act fairly” and “the rules of natural
justice” are usually used interchangeably.
The first rule of natural justice is audi alteram partem (to hear
the other side). This means that the decision-maker must listen
carefully to what those affected by their proposed decision have
to say about it.
The second rule of natural justice is nemo judex in sua causa
(no one a judge in their own cause). This means that decisionmakers should not have an improper predilection to decide one
way or another, i.e. they should not be or appear to be biased.
These rules are imposed because those affected have a “right
to be heard” and, also, because they ensure that the decisionmaker will be better informed and so will make a better
decision.
Procedural Fairness I
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There is an ancient principle also widely recognised
in the modern world that those affected by a decision
have a right to be heard by an impartial decision
maker before a decision adverse to them is taken.
Hearing before deciding ensures that the decisionmaker is better informed (often those affected as the
best source of relevant information); and
Those affected will feel they have been fairly treated
even if the decision is adverse to them.
Procedural Fairness II:
Varying Content
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Lloyd v. McMahon (1987):
“…the rules of natural justice are not engraved on
tablets of stone. To use the phrase which better
expresses the underlying concept, what the
requirements of fairness demand when anybody,
domestic, administrative or judicial, has to make a
decision which will affect the rights of individuals
depended upon the character of the decision-making
body, the kind of decision it has to make and the
statutory or other framework in which it operates….”
Procedural Fairness III
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Thus “hearings” do not always have to be oral but
are often on paper. Crucial factual disputes do
require an oral hearing for resolution.
But the person concerned needs to know the case
he has to answer and this requires the disclosure of
adverse reports and similar documents.
Information gained in confidence does not generally
have to be disclosed but disclosure of the gist of that
information will suffice.
Procedural Fairness IV
The Rule against Bias
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The rule against bias is a rule against the appearance of bias.
This is illustrated by R. v. Sussex Justices ex p. McCarthy [1924] 1
KB 256
What had happened was that a solicitor was acting for a client
who was suing a motorist for damage caused in a road accident.
The solicitor was also acting clerk to the justices before whom the
same motorist was convicted of dangerous driving and he retired
with them when they were considering their decision. The fact that
the clerk’s firm was acting against the interests of the convicted
motorist in other proceedings was held to invalidate the conviction,
even though it was proved that the justices had not in fact
consulted the clerk and that he had scrupulously refrained from
saying anything prejudicial.
This is the origin of the phrase that: ‘justice should not only be
done, but should manifestly and undoubtedly be seen to be done’
(Lord Hewart)
The Test of Apparent Bias
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Where there is no automatic disqualification
it then has to be determined whether the
judge’s or decision-maker’s interest in the
matter is sufficient to justify disqualification.
After decades of debate between the tests of
“reasonable suspicion of bias”, “real
likelihood of bias” and “ real danger of bias” a
modern test of apparent bias has emerged.
The Modern Test of Apparent Bias
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The test of bias laid down in Lawal v. Northern Spirit
Ltd [2003] UKHL 35 (following a dictum in Porter v.
Magill [2001] UKHL 67, [2002] 2 WLR 37 (HL)) was
‘whether the fair-minded and informed observer, having
considered the facts, would conclude that there was a
real possibility that the tribunal was biased’.
This test effectively (parties in fact agreed) adopted for
Hong Kong by the CFA in Deacons (A Firm) v. White &
Case Ltd [2003] HKCFA 17; FAMV23/2003 and Sun
Honest Development Ltd v. Appeal Tribunal
(Buildings) [2005] HKCA 178; CACV000254/2004.
The Application of the Modern Test
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The modern test is easy to state but difficult to apply.
This is a useful statement of the law in Locabail (UK) Ltd. v. Bayfield
Properties Ltd [2000] 2 WLR 870 (CA)
Lord Woolf, Sir Richard Scott and Sir Thomas Bingham laid down that
while everything will depend upon the facts and the nature of the issue to
be decided, objections could not be based on religion, ethnic or national
origin, gender, age, class, means or sexual orientation of the judge. Nor,
ordinarily, would the judge’s educational, social, employment or service
background, nor his political associations, professional associations (e.g.
membership of an Inn of Court), membership of social, sporting or
charitable bodies (including Masonic associations), prior judicial
decisions or views expressed in textbooks, lectures or articles, nor the
fact that he had in the past received instructions from a party (or the
parties’ legal representatives) be relevant. But a history of personal
friendship or animosity between the judge and a member of the public
associated with the case (e.g. as party or witness ) may disqualify the
judge.
Although this case is limited to judges it seems that administrative
decision-makers are similarly treated.
Human Rights and Judicial Review
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The Basic Law is the primary source of law in Hong
Kong and provides in Chapter Three for the
protection of the fundamental rights and freedoms of
Hong Kong residents.
In addition there is the International Covenant on
Civil and Political Rights “as applied to Hong Kong
shall remain in force and shall be implemented
through the laws of the Hong Kong Special
Administrative Region” (BL 39).
Human Rights and Judicial Review
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In addition the provisions of the ICCPR are
given effect by the Bill of Rights Ordinance
(Cap 383).
The rights protected under the BL or the
ICCPR are stated in broad and general terms
Human Rights and Judicial Review
For instance, article 27 BL states: “Hong
Kong residents shall have freedom of speech,
of the press and of publication; freedom of
association, of assembly, of procession and of
demonstration; and the right and freedom to
form and join trade unions, and to strike.”
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Human Rights and Judicial Review
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But plainly such rights are subject to restriction.
Freedom of speech can not extend to shouting fire in
a crowded theatre!
So the question is generally whether a particular
restriction is justified.
This questions is decided by the judges and
represents a significant increase in the power of
judges.
Human Rights and Judicial Review
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But the judges do not make those decisions
according to their personal opinions.
They do so by applying the test of proportionality.
The essential point being that the restriction on the
right is proportionate to the justification for the
restriction.
Ie that a “sledgehammer has not been taken to crack
a nut”!
Some Recent Cases:
Socio – Economic Rights
Kong Yunming v The
Director of Social
Welfare
FACV No. 2 of 2013 on
appeal fromCACVNo.
185 of 2009
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Basic Law Protects
Socio-Economic Rights
By Article 36, the Basic Law provides:
 “Hong Kong residents shall have the
right to social welfare in accordance
with law. The welfare benefits and
retirement security of the labour force
shall be protected by law.”
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The Facts (from Press Summary)
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In November 2005, the Appellant was granted a one-way permit by the
Mainland authorities for settlement in Hong Kong with her husband. Her
husband died the day after she arrived in Hong Kong. In March 2006, she
applied for Comprehensive Social Security Assistance (“CSSA”). Her
application was rejected by the Director of Social Welfare (the “Director”)
due to the requirement, since 1 January 2004, that all applicants for CSSA
must have been residents of Hong Kong for at least seven years. Prior to
2004, the residential condition of eligibility for CSSA was one year’s
residence. The Director also refused to exercise his discretion to waive
the residence requirement in the Appellant’s case. The Appellant’s appeal
to the Social Security Appeal Board against the Director’s refusal to grant
her CSSA was dismissed.
The Appellant sought judicial review to challenge the constitutionality of
the seven-year residence requirement under the CSSA Scheme.
“Manifestly without Reasonable
Justification”.
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Where the disputed measure involves
implementation of the Government’s socioeconomic policy choices regarding the allocation of
limited public funds without impinging upon
fundamental rights or involving possible
discrimination on inherently suspect grounds, the
Court has held that it has a duty to intervene only
where the impugned measure is “manifestly
without reasonable justification”.
The Reasons for that Conclusion
(Ribeiro PJ’s Judgment)
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In the present case, the Government has claimed
that the seven-year residence requirement pursues
the legitimate purpose of curbing expenditure so as
to ensure the sustainability of the social security
system. In my view that claim is not made out. The
seven-year restriction conflicts with two important
social policies which are simultaneously embraced
by the Government, namely the OWP family reunion
policy and the population policy aimed at
rejuvenating our ageing population.
Ribeiro PJ contd
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There is no evidence as to the level of savings
actually achieved and achievable as a result of
adopting the seven-year rule. On the contrary,
everything points to the actual savings being modest
and of an order that cannot sensibly be described as
designed to safeguard the system’s sustainability.
The Government has indeed admitted that the new
residence requirement is not driven by the need to
reduce CSSA expenditure on new arrivals.
Bokhary NPJ
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Departures from equality have to be justified. The
departure from equality brought about by the
requirement of 7 years’ residence cannot be justified.
Its effect – and its declared objective, too, it might be
added – is essentially to draw a distinction between
permanent residents and non-permanent residents
in regard to the right to social welfare. This
distinction is drawn in the face of a constitutional
guarantee which extends to all residents without
distinction.
FDH and the Right of Abode
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Vallejos Evangeline Banao v Commissioner
of Registration & Registration of Persons
Tribunal
FACV Nos. 19 and 20 of 2012 on appeal
from
CACV Nos. 204 and 261 of 2011
FDH and the Right of Abode
(from press summary)
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Article 24(2)(4) of the Basic Law provides
that persons not of Chinese nationality who
have entered Hong Kong with valid travel
documents, have ordinarily resided in Hong
Kong for a continuous period of not less than
7 years and have taken Hong Kong as their
place of permanent residence shall be
permanent residents of Hong Kong.
FDH and the Right of Abode
(from press summary)
 Section 2(4)(vi) of the Immigration Ordinance states
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that a person employed as a FDH who is from
outside Hong Kong is not to be treated as “ordinarily
resident” in Hong Kong and so cannot become a
Hong Kong permanent resident.
So an FDH, although resident in HKSAR for many
years, never became permanent residents..unless
section 2(4)(vi) is unconstitutional.
FDH and the Right of Abode
(from Press Summary)
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The nature of FDHs’ residence in Hong Kong is highly
restrictive. Permission for a FDH to enter Hong Kong is tied to
employment solely as a domestic helper with a specific
employer with whom the FDH must reside under a specified
contract. The FDH is obliged to return to the country of origin at
the end of the contract and is told from the outset that
admission is not for the purposes of settlement and that
dependents cannot be brought to reside in Hong Kong. The
quality of their residence is therefore far-removed from what
would traditionally be recognised as “ordinary residence” and
the Court thus held that FDHs do not, as a class, come within
the meaning of “ordinarily residence” as used in the Article. As
the meaning of the Article interpreted purposively and in context
was clear
FDH and the Right of Abode
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So section 2(4)(iv) was not unconstitutional;
and the FDH, no matter how long they lived
in Hong Kong did not acquire permanent
residence here.
In effect “ordinarily resident” in the BL (article
2(4)) is given its meaning by section 2(4) of
the Immigration Ordinance.
W v Registrar of Marriages
FACV No. 4 of 2012 on appeal from CACV No. 266 of
2010 (from press summary)
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Judgment of Ma CJ and Ribeiro PJ
The Appellant was a post-operative male-to-female
transsexual person who has undergone sex
reassignment surgery (“SRS”) at hospitals managed
by the Hospital Authority in Hong Kong. She and her
male partner wish to get married but the Respondent
refused to celebrate their marriage, deciding that she
does not qualify as “a woman” under the Marriage
Ordinance (“MO”) and the Matrimonial Causes
Ordinance (“MCO”).
W v Registrar of Marriages
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The Appellant brought judicial review proceedings
..contending that she ought in law to count as a
woman for the purposes of marriage. She argued
that (i) on a true and proper construction, the words
“woman” and “female” in sections 21 and 40 of the
MO include a post-operative male-to-female
transsexual; and (ii) if not, these two sections are
unconstitutional having regard to her right to marry
under Article 37 of the Basic Law and/or Article 19(2)
of the Hong Kong Bill of Rights (“HKBOR”) and/or
her right to privacy under Article 14 of the HKBOR.
W v Registrar of Marriages
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Article 37 of the Basic Law and Article 19(2) of
HKBOR protect the right to marry. While the
institution of marriage is necessarily subject to legal
regulation, such legal rules must not be inconsistent
with and operate so as to impair the very essence of
that right. The Court noted that in present-day multicultural Hong Kong, the nature of marriage as a
social institution had undergone far-reaching
changes and the importance of procreation as an
essential constituent has much diminished.
W v Registrar of Marriages
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In restricting the criteria for ascertaining a person’s
gender to merely biological factors, the Court held
that the relevant provisions in the MCO and MO are
inconsistent with and fail to give proper effect to the
constitutional right to marry. In denying a postoperative transsexual woman like W the right to
marry a man, those provisions realistically preclude
her from marrying at all. They therefore impair the
very essence of W’s right to marry. As such, the
Court held that the provisions are unconstitutional.
The Dissent of Chan PJ
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Chan PJ held that recognition of transsexual marriages is a
radical change of the traditional concept of marriage and
marriage is an important social institution which has its basis in
the social attitudes of the community. … There is no evidence
whether social attitudes in Hong Kong have changed to the
extent of abandoning or fundamentally altering the traditional
concept of marriage. The Court should not invoke its power of
constitutional interpretation to recognize transsexual marriages
in the absence of such evidence. To do so would amount to
making a new policy on a social issue which has far-reaching
ramifications and which can only be made after public
consultation. This is not the business of the Court.
Conclusion
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The ever growing significance of human
rights litigation.
The involvement of the courts in issues of
social and economic policy.
Judiciary becomes involved in controversy
and subject to more criticism than in the past.
Life for civil servants becomes more difficult.
Question & Answer Session
Civil Service Training and Development Institute
Civil Service Bureau