Week 5: Grounds of Judicial

Review I - Illegality

Michael Ramsden
Professor of Law
 Introduction to Illegality
• Illegality review concerned with the
compatibility of executive acts with legislation:
“the four corners”.
• Premised on the notion that unfettered
statutory discretions is inimical to the rule of
law (Padfield v Minister for Agriculture, Food
and Fisheries [1968] 1 All ER 694 HL).
• An exercise in statutory interpretation:
Interpretation and General Clauses Ordinance
(Cap. 1), s.19.
 Introduction to Illegality
• Identifying the “four corners”:
– Problem of vague statutory language, conflicting or
uncertain purposes, and excessively broad conferrals of
discretion (“as the authority thinks fit”).
– Constitutional theory relevant to understanding
competing judicial approaches to the scope of “law”: red
light versus green light theory (e.g. Roberts v Hopwood
[1925] AC 578).
• Focus:
– Six indicators of illegality explored here: improper
purpose; fettering discretion; relevant/irrelevant
considerations; excess of power; wrongful delegation;
error of fact.
 Illegality (1): Purpose
• Methods for determining statutory purposes:
– Literal interpretation: e.g. Section 4(1) Housing Ordinance “to secure
the provision of housing and such amenities ancillary thereto” (Lo Siu
Lan v Hong Kong Housing Authority (2005) 8 HKCFAR 363).
– Preamble is relevant but not decisive: Li Yiu Kee v Chinese University
of Hong Kong [2010] HKEC 1159.
– Context of scheme as a whole, e.g.:
• That public spending has to be reasonable: Roberts v Hopwood
[1925] AC 578 HL.
• The promotion of the Chinese language as the ‘principal
language’ of instruction is one of several statutory objectives
CUHK must balance: Li Yiu Kee.
• The ‘affordability’ principle just one objective underpinning the
Health Authority Ordinance: Fok Chun Wa v Hospital Authority
[2012] HKEC 471 (CA).
 Illegality (1): Purpose
• Cannot use power to achieve an improper purpose:
– Using land management powers to penalise a rugby club for its
support of a tournament in apartheid South Africa: Wheeler v
Leicester City Council [1985] AC 1054.
– Using purchasing powers to boycott Shell products: R v Lewisham
London Borough Council, ex parte Shell UK Ltd [1988] 1 All ER
938.
– Using public library powers to further political objectives: R v
Ealing London Borough Council, ex parte Times Newspapers Ltd.
• Possible to ‘kill two birds with one stone’, but improper purpose
must not be the dominant one:
– Extraneous purpose (development potential) did not materially
influence the decision to resume land for MTR construction:
Incorporated Owners of Wah Kai Industrial Centre v Secretary for
Justice [2000] 2 HKLRD 458.
 Illegality (2): Fettering discretion
• Legitimate to adopt policies to structure discretion,
especially when wide discretion: Wise Union
Industries Ltd v Hong Kong Science and Technology
Parks Corp [2010] 1 HKC 60.
• Must keep an open mind when adopting policies –
“guidelines, not tramlines”: British Oxygen v Board
of Trade [1969] 2 All ER 18 CA.
• Absence of exceptions to a given policy is evidence
of fetter: Lo Yuet Hing v Hong Kong Housing
Authority [2002] HKCU 1138 CFI.
 Illegality (3): Relevant Considerations
• Decision maker should take relevant considerations into account and refrain from taking
irrelevant considerations into account when coming to his decision.
• Difference between “mandatory” and “discretionary” considerations.
– Mandatory consideration – those that must be taken into account in the statute
expressly or impliedly:
• Express: e.g. Control of Obscene and Indecent Articles Ordinance, s.10(1) tribunal
‘shall have regard to…’.
• Implied:
– Context of a decision - e.g. R v Secretary of State for the Home Department,
ex p Venables [1998] AC 407 (implied context that a politician exercising
sentencing powers must act like a judge and thus ignore a public petition for
a harsher sentence for convicted murderers).
– That statute would require the authority to keep an open mind when
exercising discretion and thus take into account individual circumstances (see
cases on next slides).
– Discretionary consideration – those that the authority chooses to take into account
provided that it is reasonable to take these into account and rationally related to the
statutory scheme (with relevancy here determined under Wednesbury
unreasonableness, considered next week).
 Illegality (3): Relevant Considerations
• Epoch Group Ltd v Director of Immigration [2011] 3 HKLRD
H2.
– Applicant was organiser of a performing arts event, associated
with the Falun Gong. They invited a touring dance and music group
to perform seven shows in Hong Kong. The applicant submitted to
the Immigration Department 93 applications for employment
visas. The Director of Immigration approved all such employment
visas for the dancers and musicians, except for six individuals
whose roles related mainly to backstage work (lighting, audio,
music), on the ground that this work could be readily performed by
the local work force in Hong Kong, and so did not meet the
established criteria under the General Employment Policy.
– General Employment Policy provides that non-residents can work
in Hong Kong where they, amongst other matters, "possess special
skills, knowledge or experience of value to and not readily
available in Hong Kong”.
 Illegality (3): Relevant Considerations
• Epoch Group Ltd v Director of Immigration [2011] 3 HKLRD H2
– Court of First Instance (Andrew Cheung J) found that the Director of
Immigration fettered his discretion and failed to have regard to relevant
considerations:
• Inappropriate to apply General Employment Policy, directed at
professionals, to members of a travelling performance group.
• “Carried to extreme, the guidelines would mean that unless, for
instance, a violinist in an overseas orchestra is of such skill and
experience that is not readily available in Hong Kong, he could not be
allowed in as a member of an orchestra invited to perform in Hong
Kong for one or two nights. Likewise, unless an overseas footballer can
demonstrate that his skills are superior to that of all footballers in
Hong Kong, he cannot be allowed in as a team member of his club
invited to come to Hong Kong to participate in an international
tournament or a friendly match.”
• Director should have regard to three relevant considerations: (1)
distinct value of cultural and artistic exchanges to society; (2) that
each member of the performing arts group belonged to a team
coming in to Hong Kong for a very short period of time; (3) look to
group’s own assessment about who they need to undertake roles
within the team.
 Illegality (3): Relevant Considerations
• MA v Director of Immigration [2011] HKEC 28.
– Four mandated refugees and one screened-in torture claimant had
been in Hong Kong for periods between 5-10 years awaiting
resettlement to a safe third country. They sought permission to work
in order to subsist and due to deterioration in mental health.
– Director of Immigration purported to have a policy that would permit
refugees to work in “exceptional circumstances”.
– The Director of Immigration rejected all of their requests, giving only
very general and brief responses that did not address the individual
circumstances of the applicants.
– Court of First Instance (Andrew Cheung J) held that the Director had
failed to properly take into account all relevant considerations,
particularly that the applicants: (a) were in genuine need of
protection in a foreign land; (b) had been stranded in Hong Kong for a
very substantial period of time; (c) had little prospect of resettlement
in the near future; (d) had little choice but to stay in Hong Kong
pending resettlement; and (e) given their prolonged period of
unemployment, could be at risk of mental suffering.
 Illegality (4): Excess of Power
• Identifying statutory powers (e.g. to compensate, tax, detain,
investigate)
– Express, e.g.:
• Section 8A(1) – Fire Services Ordinance (Cap.95) “Within a
reasonable period after a fire in or on any premises has been
extinguished, the Director or any member authorized by the
Director in writing on producing, if so required, the document
showing the member's authority, may enter the premises for the
purpose of investigation into the cause of or other matters
relating to the fire.”
• Section 146(2)(c) – Chinese Medicine Ordinance (Cap.549) ”[A]n
inspector authorized under this section shall, for the purpose of
enforcing the provisions under this Ordinance and its regulations,
have powers to seize, remove and detain any article, document
or thing which appears to him to be or to contain evidence of an
offence against this Ordinance.”
•
Illegality
Implied powers:
(4): Excess of Power
• The implied power needs to be “necessary” in that it is “reasonably required” for the
effective exercise of the express power: PCCW-HKT Telephone Ltd v Telecommunications
Authority (2005) 8 HKCFAR 337.
• A power is not incidental because it is convenient, desirable or profitable: Hazell v
Hammersmith and Fulham London Borough Council [1992] 2 AC 1; PCCW-HKT Telephone
Ltd v Secretary for Commerce and Economic Development (2017) 20 HKCFAR 592.
• Cannot imply a power which entails a penal element, a tax, or an interference in
people’s lives, unless clear: Man Hing Medical Suppliers (International) Ltd v Director of
Health [2015] 3 HKLRD 224; PCCW-HKT Telephone Ltd v Secretary for Commerce and
Economic Development (above); Kwok Cheuk Kin v Secretary for Health [2022]
HKCFI 3225 (CFI).
• Specific provision prevails over a general one when construing powers: Kwok Cheuk Kin v
Secretary for Health [2022] HKCFI 3225 (CFI)
• An unduly harsh outcome (disproportionality) would suggest it is unreasonable to fashion
an implied power: Re Sea Dragon Billiard and Snooker Association [1991] HKCU 406.
• Regard must be had to the division of governmental responsibilities in identifying implied
powers: Wong Kam Kuen v The Commissioner for Television and Entertainment Licensing
[2003] 2 HKLRD 596 CA.
 Illegality (4): Excess of Power
• Man Hing Medical Suppliers (International) Ltd v Director of Health
[2015] 3 HKLRD 224
• Health inspectors determined the applicant (an online wholesaler) to be selling
unregistered proprietary Chinese medicine (pCm), so seized them under s.146(2)
(f) of the Chinese Medicine Ordinance (Cap. 549) and instructed the applicant to
recall the products from customers, also putting out a public recall announcement.
• All pCms are required to be registered: the applicant’s two moisturising throat
products were not (“Ryukaku San" ( 龍角散 ), which were imported from Japan).
Applicant took the view they were just herbal candies, the health authority
regarded them as Chinese medicine whose effects had not been tested so
potentially unsafe. Court refused to decide whether they were indeed Chinese
medicine especially given the conflicting expert evidence. So, the judicial review
focused on the scope of statutory powers to recall.
• Applicant argued that there was no express or implied statutory power to recall
the products so that these decisions were unlawful. Director argued that an
incidental power arises under s.146(2)(c) and/or (f) in that it empowers an
inspector to "to seize, remove and detain any article ... which appears ... to be or
contain evidence of an offence against this Ordinance."
 Illegality (4): Excess of Power
• Man Hing Medical Suppliers (International) Ltd v Director of
Health [2015] 3 HKLRD 224
• CFI Held:
• No express power: ordinary meaning of the words to "seize,
remove and detain" are different in nature from the
meaning of "recall” [45].
• Director’s argument that it would be impractical to seize
from every premises (thus justifying the recall power) is no
more than effectively saying this power would aid
administrative convenience, per Hazell [49].
• The effect of fashioning a “recall” power would be that any
shop or customer who does not comply with it would be
committing an offence: an implied power in this instance
would need to be clear and obvious [51].
 Illegality (5): Wrongful delegation
• General rule that a power can only be exercised by the
person conferred: Barnard v National Dock Labour Board
[1953] 2 QB 18.
• Need to evaluate whether the statute expressly or
impliedly permits delegation. A matter of statutory
interpretation: Interpretation and General Clauses
Ordinance (Cap. 1), sections 43-44.
• If permitted, delegation must be authorised: Wise Union
Industries Ltd v Hong Kong Science and Technology Parks
Corp [2010] 1 HKC 60.
 Illegality (5): Wrongful delegation
• Indicative factors to take into account in assessing whether
implied delegation lawful:
– Statutory language – permissive or restrictive: Kwan Wan
Chee Alisa v City University of Hong Kong [2013] HKEC 232.
– Nature of power delegated - clerical, serious
consequences/punitive powers: Michael Rowse v Secretary
for the Civil Service [2008] HKCU 1037 CFI.
– Seniority of delegator/suitability of delegee: Carltona v
Commissioners of Works [1943] 2 All ER 560 CA; HKSAR v
Lee Ming Tee & Anor (2001) 4 HKCFAR 133 (Carltona
principle applied to “a Secretary in the HKSAR
Government”); Attorney General v Chiu Tat-cheong [1992]
2 HKLR 84.
 Illegality (6): Error of Fact
• Factual determinations arise in a wide variety of
scenarios, for example:
– Dutiable Commodities (Liquor) Regulations (109B),
that the Liquor Licencing Board shall not grant a
liquor licence unless it is satisfied (a) that the
applicant is a fit and proper person to hold the
licence; (b) that the premises to which the
application relates are suitable for selling or
supplying intoxicating liquor, (c) that in all the
circumstances the grant of the licence is not contrary
to the public interest.
 Illegality (6): Error of Fact
• Where a mistake of fact amounted to unfairness could be
challenged where:
(1) there must have been a mistake as to an existing fact,
(2) the fact or evidence must have been ‘established’ in
that it was uncontentious and objectively verifiable,
(3) the appellant must not be responsible for the mistake,
(4) the mistake must have played a material (or though not
necessarily decisive) part in the tribunal’s reasoning:
(see: E v Secretary of State for the Home Department
[2004] 2 WLR 1351; Smart Gain Investment v Town
Planning Board [2007] HKCU 1817).
 Illegality (6): Error of Fact
• Error of fact established – illustrations:
– Concerning the zoning designation of the applicant’s land as a
conservation area mistakenly assuming it contained ‘wooden
slopes and river valley’ when it contained low quality vegetation
in an area of low-rise residential developments: Smart Gain
Investment v Town Planning Board [2007] HKCU 1817.
– The location of a restaurant applying for a liquor licence,
mistakenly thought to be at the quieter end of Upper Station
Street, Sheung Wan when in fact it was near the junction with
Hollywood Road: Orrico Philippe v Municipal Services Appeals
Board [2014] HKEC 1388.
– That other bars on Wyndham Street were subject to the same
stringent licencing conditions as those of “ICON” bar, when in fact
they were not: Sabinano II Marcel R v Municipal Services Appeal
Board [2014] HKEC 370.
 Illegality (6): Error of Fact
• Illustrations where there had been no error of fact:
– The issuance of a notice to quit on the applicant on the
basis that he must have known that his wife was
conducting a fortune telling business from the public
housing flat, given that this was a factual conclusion that
the decision maker carefully weighed: Wan Yung Sang v
Housing Authority [2011] HKEC 907.
– The omission of the applicant’s Russian address when
applying for a dependant visa, although noted by the
immigration authority, was not material to the decision to
refuse her the visa: Tatiana Chinko v. Director of
Immigration HCAL 45/2005.