ADMINISTRATIVE LAW (LLAW 3093)

UNIVERSITY OF HONG KONG

Ernest Ng
Barrister-at-law
Parkside Chambers, Hong Kong
PRACTICAL ASPECTS OF ADMINISTRATIVE LAW: 2 WEEKS

¡ Beyond the Courts: Tribunal Practice

¡ Judicial Review: Targets of Judicial Review
¡ Public / Private
¡ Decision / Others
¡ Decision with Consequences / Prematurity, Utility
¡ Procedure
¡ Standing
¡ Time
¡ Other aspects
PREMATURITY / ACADEMIC
PREMATURITY

¡ Last lecture: “substantive legal consequence” – reflecting the need for a “decision” (or target)
¡ No decision likely -> premature.
¡ See esp Financial Secretary v Wong (Last Lecture).
ACADEMIC QUESTIONS

¡ Traditional Reluctance to address academic issues: -

¡ Inconsistent with adversarial model and risking to deal with tasks the Court ill equipped to deal with
¡ People affected may not have opportunity to put the arguments to Court
¡ Waste of judicial resources
ACADEMIC QUESTIONS

¡ Not absolute: ex parte Salem [1999] 1 AC 450:

¡ “unless there is a good reason in the public interest to do so, as for example (but only by way of example) when a discrete
point of statutory construction arises which does not involve detailed consideration of facts and where a large number of
similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”
ACADEMIC QUESTIONS

¡ Hong Kong: Chi Fai Motors v Commissioner for Transport [2004] 1 HKC 465
¡ App was a operator of public light buses (Hung Hom and Whampoa). R also granted Kwoon Chung Motors
Co Ltd permission to operate free bus services between a shopping centre in Whampoa and certain areas
in Homantin and Tokwawan since 1998.
¡ Having regard that its business had been adversely affected by Kwoon Chung, JR’d R’s decision granting
approval to Kwoon Chung to operate free bus services in competition with its franchised services.
¡ The relevant approvals to Kwoon Chung expired on 12 September 2002.
¡ Application for JR dismissed for want of real issue for determination because Kwoon Chung’s licence was
no longer valid at the time of the hearing.
¡ Shortly before the JR, Kwoon Chung JR’d R’s decision refusing to extend its licence.
¡ App argued duty to consult, and R submitted that the question had become academic since the relevant
approval had expired.
ACADEMIC QUESTIONS

¡ Hong Kong: Chi Fai Motors v Commissioner for Transport [2004] 1 HKC 465: Held
• Generally courts did not have jurisdiction to give an advisory opinion on hypothetical facts or disputes which had
become academic because there were simply no events to form the basis for the question to be answered.
However, even though the real dispute that drove the parties to litigation (the lis) was no longer in existence, if
the relevant facts giving rise to the dispute were real and had actually taken place, the court had the jurisdiction
to hear and determine the question in issue. In deciding whether or not to do so, the court would closely
examine the relevance or utility of any decision and should hear the parties where there was good reason in the
public interest for doing so (pp. 47—3)
ACADEMIC QUESTIONS

¡ Hong Kong: Chi Fai Motors v Commissioner for Transport [2004] 1 HKC 465: Held
• Where the same point was likely or might well arise as between the same parties, this was an a fortiori situation
for the court to proceed to determine the question in controversy. The court might also consider the question
where there were conflicting decisions. In this case, the point might well actually arise again as between the
same parties. The question of consultation as regards the provision of free bus services alongside existing bus
service was a sufficiently general one for any determination by the court to provide at least some useful guidance
for the future (pp. 473-475)
• Court noted - the controversy between the parties was thus an on-going one and should be fully explored and
argued (pp. 473-474).
PROCEDURE
THE BASICS
TOPICS TO COVER

¡ Procedural Framework: -
¡ How: The Order 53 of the Rules of the High Court (Cap. 4A) & The “Form 86”
¡ Who: (a) Standing or “Locus Standi” (b) Proper Respondent
¡ What to review: The “Decision”: Reviewability (*Covered in L2)
¡ When to apply: The 3 Month Limit and Promptitude
¡ Substantive Application
¡ Relief (Briefly)
SECTION 21K, HIGH COURT ORDINANCE

(1) An application to the Court of First Instance for one or more of the following forms of relief—
(a) an order of mandamus, prohibition or certiorari;
(b) an injunction under section 21J restraining a person not entitled to do so from acting in an office to which that section
applies,
shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

(2) An application for a declaration or an injunction (not being an injunction mentioned in subsection (1)) may be made in
accordance with rules of court by way of an application for judicial review, and on such an application the Court of First
Instance may grant the declaration or injunction claimed if it considers that, having regard to—
(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;
(b) the nature of the persons and bodies against whom relief may be granted by such orders; and
(c) all the circumstances of the case,
it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be
SECTION 21K, HIGH COURT ORDINANCE

(3) No application for judicial review shall be made unless the leave of the Court of First Instance has been
obtained in accordance with rules of court; and the court shall not grant leave to make such an application
unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
(4) On an application for judicial review the Court of First Instance may award damages to the applicant if— […]
(5) If, on an application for judicial review seeking an order of certiorari, the Court of First Instance quashes the
decision to which the application relates, the Court of First Instance may remit the matter to the court,
tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the
findings of the Court of First Instance.
(6) Where the Court of First Instance considers that there has been undue delay in making an application for
judicial review, the Court may refuse to grant— […]
(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time
within which an application for judicial review may be made.
ORDER 53 OF THE RHC

¡ Key Provisions
¡ O. 53 r. 1 (Scope)
¡ O. 53 r. 3 (Leave)
¡ O. 53 r. 4 (Time / Delay)
¡ O. 53. r. 5 (Formal Commencement / Mode of Application)
¡ O. 53 r. 7 (Damages)
¡ O. 53 r. 8 (Interlocutories)
INHERENT JURISDICTION

¡ What else to cover?

¡ E.g Substitution of Applicant
FORM 86 & FORM 86A

¡ Application for Leave to Apply for Judicial Review: Form 86

¡ Leave granted:The Originating Summons to apply for Judicial Review: Form 86A
SAMPLE FORM 86

¡ Note the Details

¡ Formatting may differ
SAMPLE FORM 86

¡ Note the Details

¡ Formatting may differ
SAMPLE FORM 86

¡ Note the Details

¡ Formatting may differ
THE LEAVE STAGE
PURPOSE OF THE LEAVE STAGE

¡ Theoretical Rationale: -
¡ Safeguard public authorities by deterring and eliminating clearly ill founded claims without the need for a
full hearing of the matter
¡ More efficient management of the caseload.
¡ May also be advantageous for the applicant to know the preliminary view of the Court earlier
PURPOSE OF THE LEAVE STAGE

¡ The purpose to “weed out hopeless case”

¡ “The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for
prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the
court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the
uncertainty in which public officers and authorities might be left as to whether they could safely proceed with
administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
¡ Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982]
AC 617 at pp. 642-643
PURPOSE OF THE LEAVE STAGE

¡ Applied in Hong Kong in Kwok Cheuk Kin v Chief Executive in Council HCAL 169/2013; 7/2014
(unrep., 19.06.2014) at
¡ §6 (…At the leave application (stage one), the test is designed to weed out hopeless or meddlesome applications only…)
and
¡ §17 (…As emphasised by all the Law Lords in the Fleet Street Case, the leave stage is there only to weed out
obviously hopeless and meddlesome cases and should not be turned into a protracted and lengthy hearing on
arguments.…)
THE “REASONABLE ARGUABILITY” TEST: THE PO FUN CHAN V
WINNIE CHEUNG CASE

¡ Pre-Po Fun Chan: “Potential Arguability”:

“Whether the materials before the court have disclosed matters which on further consideration might
demonstrate an arguable case for the grant of the relief sought.”
See: Ho Ming Sai & Others v Director of Immigration [1994] 1 HKLR 21 (KempsterJA, Litton JA
and Godfrey J).
Note: Originated from Inland Revenue Commissioners v National Federation of Self-Employed and
Small Businesses Ltd [1982] AC 617 at pp.643H-644B
THE “REASONABLE ARGUABILITY” TEST: THE PO FUN CHAN V
WINNIE CHEUNG CASE

¡ Now: Reasonable Arguability

“14. The requirement for leave to apply for judicial review is an important filter introduced by statute. Section 21K(3)
of the High Court Ordinance (Cap.4) and O.53 r.3(1) of the Rules of the High Court (Cap.4, Sub.Leg.). Its purpose is
to prevent public authorities from being unduly vexed with unarguable challenges. Whilst in a society governed by the
rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by
public authorities on judicial review, the public interest in good public administration requires that public authorities
should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should
third parties affected by their decisions face such uncertainty.
THE “REASONABLE ARGUABILITY” TEST: THE PO FUN CHAN V
WINNIE CHEUNG CASE

¡ Now: Reasonable Arguability

“15. The purpose of the leave requirement would be better served by the adoption of the arguability test instead of
the potential arguability test. The granting of leave to apply for judicial review is a matter for the court's discretion to
be exercised judicially. The test which should be applied is the arguability test. Under this test, arguability must mean
reasonable arguability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A
reasonably arguable case is one which enjoys realistic prospects of success. Whilst the test adopted represents a
higher threshold than the potential arguability test, claims which are reasonably arguable would be given leave to go
forward under it. It is in the public interest that challenges which are not reasonably arguable should not be given
leave to proceed.”
QUESTIONS

¡ Is the “reasonable arguability test” a test that serves its intended purpose?
¡ Thomson (2018) at p. 113: criticizes the test as “uncertain”.
¡ Thomson (2018) at p. 115: the more time spent, the less justifiable as a filter
¡ Further questions: -
¡ What if – in a case concerning human rights, it is indisputable that rights have been engaged?
¡ How does it square with the trend of ordering of “rolled up hearing”? (to be introduced below)
STANDING / LOCUS STANDI
A JURISDICTIONAL REQUIREMENT

¡ Section 21K(3) of the HCO:

¡ "the court shall not grant leave to make [an application for leave to apply for judicial review] unless it considers that the
applicant has a sufficient interest in the matter to which the application relates”. See also O.53 r.3(7) of the RHC.

¡ The question of an applicant’s standing is a matter which goes to the jurisdiction of the court to
entertain the application.The court has no discretion to grant leave unless the applicant can show
a sufficient interest in the matter to which the application relates: Re Wong Chi Kin CACV 80/2014
(unrep., 26.09.2014) §11.

¡ It is a mixed question of facts and law, and not pure discretionary: Inland Revenue Commissioners v
National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at pp.643H-644B
THE TEST

¡ Leave Stage: Except in obvious cases, an applicant's locus is met if the court is satisfied that the
applicant has shown a prima facie case of sufficient interest in the matter.
¡ Substantive Stage:The question can then be further considered substantively on whether the
applicant has established sufficient interest in the matter in light of the full arguments and
evidence.
THE TEST

¡ Personal Standing
¡ Personally affected
¡ A wide array of interest, benefits or detriments
¡ Representative Standing
¡ Not directly affected but act in representation
¡ e.g. Guardian to Organization representation a portion of population to public interest
¡ Person
KWOK CHEUK KIN V COP TEST

¡ Full Test set out in §45, summary as follow: -

¡ If App directly affected: the applicant should have little difficulty (§45(1))
¡ If App sues for public interest, Court adopts a holistic approach and look at e.g. the merits of the
application, the importance of vindicating the rule of law, the importance of the issue raised, the existence
and absence of any other challengers who have a greater interest in the matter, and the nature of the
breach of duty against which relief is sought (§45(2))
¡ Mere existence of issue of public interest insufficient (§45(3))
KWOK CHEUK KIN V COP TEST

¡ Full Test set out in §45, summary as follow: -

¡ Merits alone not sufficient (at §45(4))
¡ The need to show sufficient interest is an important “filter” (at §45(5))
¡ Where App claims to sue in representative capacity, Court will consider whether he is genuinely advancing
a public interest in making the application or is motivated by other reasons (at §45(6)

¡ Affirmed in Kwok Cheuk Kin v President of Legislative Council for and on behalf of the Legislative
Council [2021] 1 HKLRD 1247; adopted in 803 Funds Ltd v Director of Buildings [2021] 2 HKLRD
1274 in respect of a corporation.
A REMINDER:

¡ AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 at §170:

“…For the reasons I have explained, such an approach cannot be based upon the concept of rights, and must instead
be based upon the concept of interests. A requirement that the applicant demonstrate an interest in the matter
complained of will not however operate satisfactorily if it is applied in the same way in all contexts. … the protection
of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined
by a court, any more than it requires that every allegation of criminal conduct must be prosecuted. …. What is to be
regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and
thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the
purposes of judicial review in that context.
QUESTIONS

¡ Consider the conflicts between access to Court and the requirement of locus standi

¡ What if to deny an applicant’s application on the basis of standing would allow an unlawful regime
to persistent?
TIME
O. 53 R. 4 OF THE RHC

“4.Delay in applying for relief (O. 53, r. 4)

(1) An application for leave to apply for judicial review shall be made promptly and in any event
within three months from the date when grounds for the application first arose unless the Court
considers that there is good reason for extending the period within which the application shall
be made.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order,
conviction or other proceeding, the date when grounds for the application first arose shall be taken to
be the date of that judgment, order, conviction or proceeding.
(3) The preceding paragraphs are without prejudice to any statutory provision which has the
effect of limiting the time within which an application for judicial review may be made.”
SECTION 21K(6) OF THE HCO

¡ ” (6) Where the Court of First Instance considers that there has been undue delay in making an
application for judicial review, the Court may refuse to grant —
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or
substantially prejudice the rights of, any person or would be detrimental to good administration.”
”PROMPTNESS”

¡ The test is “Promptitude” and not whether it is within “3 months”

¡ Reference to cases:
¡ Law Chun Loy v Secretary for Justice HCAL 13/2005 (unrep., 26.10.2006), Hartmann J
¡ Re Thomas Lai [2014] 6 HKC 1, G Lam J
¡ AW v Director of Immigration [2016] 2 HKC 293, Lam VP
LAW CHUN CHOI V SJ

¡ Applicant directed to retire in 2003, apply to JR in 2005, leave granted on paper, eventually leave
refused.
¡ Recognised that “A failure to act promptly, therefore, and in any event within three months,
constitutes of itself undue delay” (at §7, citing R. v. Stratford-on-Avon District Council, ex parte
Jackson [1985] 1 WLR 1319 , at 1325:
"… we have concluded that whenever there is a failure to act promptly or within three months there is 'undue delay.'
Accordingly, even though the court may be satisfied in the light of all the circumstances, including the particular position of the
applicant, that there is good reason for that failure, nevertheless the delay, viewed objectively, remains 'undue delay.' The court
therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the
substantive application on the grounds of undue delay if it considers that the granting of the relief sought would be likely to
cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good
administration."
LAW CHUN CHOI V SJ

¡ Also emphasis that the primary test was “promptness”

“9. What must also be emphasised is that O.53, r.4(1) does not permit an applicant simply to sit back and wait until
the three month period stated in the order is drawing to a close before instituting action. The primary requirement
of O.53, r.4(1) is promptness. The fact that an application has been made within three months does not necessarily
mean that it has been made promptly. There may be occasions when an applicant who has filed his application for
leave within the three months time period will still be judged to be guilty of undue delay.”
LAW CHUN CHOI V SJ

¡ The Approach would thus be: -

¡ If made within 3 months, Court consider “promptitude:
¡ Outside 3 months, undue delay is deemed
¡ If fails either then (1) consider whether “good reasons” and (2) whether “likely to cause hardship or
prejudice or would be detrimental to good administration”.
RE THOMAS LAI

¡ Consider the various factors the Court may consider in an extension of time:
¡ (1) The length of the delay. Obviously the longer the delay, the more cogent the reason has to be for extending time.
¡ (2) An explanation for the delay. While O 53 r 4(1) requires a good reason for extending time, rather than a good excuse for
the delay, it is simply common sense that the presence of a credibly valid explanation for the delay will strengthen, and
conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence
to be granted to him in the court’s discretion.
¡ (3)The merits of the substantive application. Again it is common sense that the merits of the challenge of the
administrative decision is a significant matter to be taken into account. It is however by no means the sole criterion.
¡ Caution (!)
¡ where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’:
Po Fun Chan p 693B-C.
¡ “sleep on your rights and, even if your cause is meritorious, you may find the gates locked against you’”: Law Chun Loy at
§13
¡ The court is entitled to delve more deeply into the merits. Its function is not just to filter out the unarguable, but also to
see whether indulgence in the form of extension of time should be granted to the applicant.
RE THOMAS LAI

¡ Consider the various factors the Court may consider in an extension of time:
¡ (4) Prejudice.The question of prejudice has two sides: the prejudice to the applicant if time is not extended,
and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of
time.
¡ (5) Whether the application raises questions of general public importance, and whether those questions are
likely to have to be resolved by the courts in any event, are also relevant considerations. I shall return to
these aspects at the end.
AW V DIRECTOR OF IMMIGRATION

¡ Affirmed Re Thomas Lai and held that it applies also to cases involving claims for humanitarian
protections (at §35)
¡ Also noted that “Quite clearly, the time taken to apply for and obtain legal aid could not account
for the failure to file the notice of application within time.” (at §§ 37, 48-49)
AFTER LEAVE
AFTER LEAVE APPLICATION

¡ If leave is refused on paper:

¡ If no oral hearing is sought, the case ends here, subject to appeal. Unless Court orders an oral hearing.
¡ If oral hearing is sought, then proceed to oral leave hearing, with or without evidence from the proposed
evidence.
¡ If leave is refused after oral hearing
¡ The case ends here, subject to appeal.
AFTER LEAVE APPLICATION

¡ The “Initial Response”

¡ The Court may order “Initial Response” from the proposed respondent should it think it may assist the
Court
¡ See Re Leung Kwok Hung HCAL 83/2012 (28.09.2012) at §40:
“Recently, a practice has been introduced: where a judge considers that it is necessary for the proper performance of the
filtering function in a leave application to have input from the putative respondent after reading the papers filed by the
applicant, he or she would give written directions for the service of the papers on the putative respondent and for the
filing of a short initial response (usually confined to not more than 3 pages in light of the observations in R (Ewing) v
Deputy Prime Minister [2006] 1 WLR 1260) by the putative respondent. The applicant would be given the opportunity to
comment on the initial response. If these written exchanges provide the necessary information for the proper
performance of the filtering function, an oral hearing can be obviated and costs can be saved thereby…”
AFTER LEAVE APPLICATION

¡ If leave is granted: -
¡ Then Applicant will issue formal proceedings by Originating Summons
¡ Evidence (or additional evidence) may follow
¡ Interlocutories may be made
¡ Expert evidence
¡ Discovery
¡ Cross-examination etc.

¡ Fix for Substantive Hearing

AFTER LEAVE APPLICATION
Application for Leave

Consideration of Merits (Paper) Consideration of Extension of Time

Optional: Inv for Initial Response

Depends: Holding of Oral Hearing w evidence from the Resp

Refusal of Leave [END] Order of Rolled Up Hearing Grant of Leave

Formal Commencement by OS
Depends: Evidence from Resp

Depends: Evidence from Resp

Rolled Up Hearing [END] Substantive Hearing [END]

LAST RESORT / ALTERNATIVE REMEDIES
JUDICIAL REVIEW AS LAST RESORT

¡ Generally speaking, an applicant for judicial review must first exhaust alternative remedies before seeking judicial
review. It is only in "extraordinary or highly exceptional circumstances" that the court will allow a departure from
this general rule: Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234 at §§
114-117 and 130

¡ Note: The principle does bar judicial review. The question is whether the court should exercise its discretion to
refuse to proceed to judicial review (as the judge did at the permission stage) or to grant relief under judicial
review at a substantive hearing.
JUDICIAL REVIEW AS LAST RESORT

¡ Rationale:
¡ Ensures the courts give priority to statutory procedures as laid down, respecting legislature’s judgment about what
procedures are appropriate for particular contexts.
¡ Avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the
same underlying subject matter.
¡ Minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may
be adequate to meet the justice of the case
¡ Promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue
pressure of work so that it remains available to provide speedy relief in other judicial review cases
See: R(Glencore Energy UK Ltd) v Revenue and Customs Commissioners [2017] 4 WLR 213 at §§54-56.
DUTY OF THE PARTIES
DUTIES OF THE PARTIES

¡ On the Applicant:The Duty of Full and Frank Disclosure

¡ On the Respondent:The Duty of Candour
¡ On both parties: General duties as a civil litigant.
APPLICANT: FULL AND FRANK DISCLOSURE

¡ An applicant bears a duty of full and frank disclosure in the ex parte application for leave and any
breach of such duty may result in leave being set aside.
¡ The duty of full and frank disclosure extends beyond disclosure of material facts, it also extends to
disclosure of potential legal answers to the claims of an ex parte applicant.
¡ See e.g. Re Leung Kwok Hung HCAL 83/2012 (unrep, 28 September 2012).
RESPONDENT: DUTY OF CANDOUR

¡ A duty placed on the decision maker to be full and frank to both the court and the other side (the
applicant) in disclosing all relevant facts and documents, which may relate to the actual reasons for
a decision (as in the present case) or to any other aspect that is relevant in the judicial review
proceedings. A respondent is invariably in a position to be full and frank; after all, he or she will be
in possession of all the relevant facts going to a decision: Chu Woan Chyi v Director of Immigration
[2009] 6 HKC 77 at §§13-16.
¡ Recent example: HKT Ltd v Secretary for Commerce and Economic Development [2019] 1 HKRLD
833; Lee Chu Ming Martin v Permanent Magistrate, Eastern Magistracy [2020] HKCFI 2028.
GENERAL: POST - CIVIL JUSTICE REFORM

¡ The Court has the “Underlying Objectives” under Rules of the High Court (Cap. 4A) Order 1A r. 1:
¡ (a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to
proceedings before the Court; (b) to ensure that a case is dealt with as expeditiously as is
reasonably practicable; (c) to promote a sense of reasonable proportion and procedural economy
in the conduct of proceedings; (d)to ensure fairness between the parties; (e) to facilitate the
settlement of disputes; and (f) to ensure that the resources of the Court are distributed fairly.
¡ The parties to any proceedings and their legal representatives shall assist the Court to further the
underlying objectives of these rules: (O. 1A) r. 3)
RELIEF
RELIEF

¡ Quashing Order / Certiorari

¡ Mandatory Order / Mandamus
¡ Injunction / Prohibition Order
¡ Declaration
¡ Damages(?)
¡ Also: Interim Relief