Who (decision statutory body

maker)

Public body Non-statutory body

(e.g. Polytechnic U v  Act for the public benefit and not for
Next Magazine) private profit (public function)
 Wholly party publicly funded (public fund)
 Subject to government supervision (public
scrutiny)

Judiciary junior E.g. Cheng kai Nam. Gary.

1.
2.

Chief executive e.g. Koo Sge Yiu (2006)

1.
2.

Whom (locus standi) --decision affected

 Directly affected party

 Anyone whose sufficient interests are adversely affected.
 Secretary for justice act as a relator actor
 Assume secretary for justice is such person as in the DQ case
What (remedies)
 O 53 r. (1)

Certiorari (only in  assumes that a decision has been made and that applicant want to quash the
public law ) decision
 Against non-statutory public body

declare the position in law; especially in constitutional ground; it may be issued  Koo Sze Yiu & Another v Chief
Declaration 声明
to either public bodies or private bodies and since it’s not an order it need not Executive of HKSAR (2006)
be obeyed . HKCU 1152: declared the
 Only available in respect of Constitution rights or legal rights. statute was unconstitutional and
 Ervice case provided a “temporary validity
 Koo Sze Yiu & Another v Chief Executive of HKSAR (2006) HKCU order.
1152: declared the statute was unconstitutional and provided a
“temporary validity order.

Mandamus (only in To compel the authority to preform--duties under the law (e.g. give reasons,  Hysan case: Granted an order to
public law) reconsider the decision) reconsider the decision

Prohibition (only in  Prevented from carrying out an unlawful decision.

public law)  Prevent sth from happening in advance
 Against nono-statutory public body

Damagers
Compensation 补偿

injunction To stop from ongoing conduct.

 When

 Application for judicial review must be made within Extension declined Extension
3 mouths from the date when the decision was  Extension: Need good accepted
made, as required by Order 53 of the Rules of the case for extension(not
high court ordinary reason )
 A53 r (4)--3 mouths rule
 Peter of
 How Rule against bias
(ground for JR )  Bias : pecuniary interest
 Personal relationship
 Case : Barnsley licensing justices
3rd reasonable man text
actual bias ;
apparent likelihood bias.

Traditional ground Breach of natural justice --a right to be heard 1. apparent bias

 The decision-maker shall have no conflict of interest for the

decision they make.
 Case: Barnsley licensing association (1967):If a right-minded
persons would think in that circumstances, there was a real
likelihood of bias, then he should not sit ;A 3ed reasonable
man would think there was a real likelihood of bias.

2. Actual bias

 Actually established to be prejudiced; prejudice in favor or

against a party

3. Pecuniary interest

 Dimes v Grand Junction Canal (1852): no man is to be a judge

of his own case.
 1. Lord Chancellor held shares in the company that was a party
to the
proceedings before him→ Lord Chancellor was disqualified from
sitting as a judge in the case.
2.Not only that in their decree that they are not influenced by
their personal interest, but to also avoid the appearance of
laboring under such an influence.
 Deacons v White & Case (2003)
1.Unless the pecuniary interest is nominal only, the one
should better
withdraw from making the decision.
2.there is no bias if the financial interests were too remote to
benefit the decision maker.

Modern ground Illegality

 Ultra vires 越权
 Legislative Council (Powers and
Privileges) Ordinance (people do not follow the decision maker)
 Breach the prossiger

Irrationality: Wednesbury  If the decision was also reached by another person, then it
 Chu Hoi Dick v Secretary for Home Affairs must not be
(2007): unreasonable

Procedural impropriety 83A. Personal Pecuniary Interest to be Disclosed

In the Council or in any committee or subcommittee, a Member
shall not move any motion or amendment relating to a matter in
which he has a pecuniary interest, whether direct or indirect, or
 speak on any such matter, except where he discloses the nature
of that interest.
 If no interest, there is no breach of the rules;
 If indirect interest establishes, It breach the 83A of the
rules; and
 If direct interest establishes, It breach the 83A and 84 of
the rules

Irrelevancy  Such a duty is called the “Tameside Duty” where it requires

 Red Hair Case - Taking into consideration every decision-maker “to take reasonable steps to equip
extraneous matter. himself with the necessary relevant information to enable
 Wong Chik Wai - Where the decision was himself to make an informed decision.”
manifestly unreasonable.
 Secretary of State for Education and
Science v Tameside MBC [1977]:

Non feasance
 Failure to perform
 Statutory duty

Misfeasance

Lack of juridical

Constitutional ground  Breach of BL in HK.  Gary Cheng kai Nam (2001) --Art 9 of BL-- (vs. inferior cost)
(BL)  Article 30: The freedom and privacy of  Hysan (2016) --Art 6 ,105 of BL.
communication of Hong Kong residents shall  Long hair (prison case) --Art 25 (2019)
be protected by law.  Koo Sge Yiu ---Art 30 of BL. (2006). (vs CE)
  Article 39: The provisions of 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

 

Defense Use it

 Wednesbury reasonableness:  Wide power: as he /she fit

公共机构履行不合理
 power exercise within four corners
unreasonableness(1947): the
decision is so unreasonableness, 
no other reasonable would deal
the same.
 It would be unreasonable if no
other reasonable authority
would decide in the same way.
Discretion(酌情权)
of law.e.g. statutory power
The decision maker draws the
discretion.
Gary Cheng kai Nam
 Narrow: Chu Yee Wah;
 HKTV:
 - Application case: change of police
 Legitimate expectation
 Public interest vs. Discretion 自由裁量权
 Broadcasting authority vs. CE in council ---s 10 (1) not
binding.
 Wide discretion provided by law

National security  Council of Civil Service Unions v Minister for the Civil
 E.g. GCHQ Service (1984) UKHL 9 (GCHQ Case)

Public interest: public law. Public  Proportionality text (balance the different kind of interest when
policy, public authority there is clash of public interest)
 Rivals of public interest.
  Where such power is conferred,
they may not be exercised to
benefit interests alone with no
advantage to the public. Decision
maker may not exercise such
power further their own private
interests or even the interests of
their agency or their friends.
 A public office holder has acted
honestly and reasonably.
 Application: proportionality test :
 Hysan Development Co Ltd v
Town Planning Board (2016) 19
HKCFAR 372
Confidential: E.g. JC Mitchel (Chinese 
university of hk)--maybe by the on
the Art 7 of BL
 Hysen: economic interest vs environment
 Environment vs development: chu yee wah
 prevention of cultural heritage vs transport improvement and
development: E.g.: Zhuhai/ Chu Yee Wah (environment vs
development)
 Freedom expression vs confidential nationality security public
order etc. E.g.: Koo Sge Yin
challenge by:
Conway v Rimmer (1968)
-the appellant sues the respondent for damages for malicious
prosecution. As a result of these event he has found it being
sought the existence of five documents was disclosed including
a probationary report.
-debate: there are two kinds of public interest which may clash.
then Proportionality apply
 Hysan text (2016)
In an Application by J. L. Mitchell and Others for an Order of
Certiorari (1976) HKCU 74