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This chapter examines unreasonableness and irrationality as grounds of judicial review. It begins with an examination of Wednesbury unreasonableness as a standard of review, before considering it as both a substantive and a procedural threshold. It is suggested that there may be a lowering of the Wednesbury threshold in Hong Kong, particularly as a standard of procedural review. The intensity of review under Wednesbury unreasonableness is then examined, both as a lower and as a higher intensity of review. It is argued that, and explained how, unreasonableness and irrationality are and should be treated as distinct concepts and grounds of review, before the role of reasons is considered in relation to unreasonableness and irrationality.
This chapter gives an overview of remedial mechanisms associated with administrative law other than those afforded by judicial review, administrative tribunals, the Ombudsman and the Legislative Council Redress System. It provides an introduction to Commissions of Inquiry, including a table of all Commissions of Inquiry conducted in Hong Kong since 1966. An overview is given of the role and work of the Independent Commission Against Corruption (ICAC), and the fight against corruption in Hong Kong. The Equal Opportunities Commission (EOC) is introduced and its main powers and functions set out. An overview is given of the role and powers of the Privacy Commissioner for Personal Data, and also of the Audit Commission.
This chapter gives a detailed discussion of the remedies that are available on an application for judicial review. It discusses the main procedural rules on remedies, before introducing the remedies of certiorari, prohibition, mandamus, declaration (including suspension of a declaration and orders of temporary validity), injunction (including interim injunction), and damages, restitution and recovery of a sum due. It discusses the discretionary nature of remedies, including their relationship with statutory appeals mechanisms, prematurity of application, delay, waiver, acquiescence, the undeserving applicant, futility, no prejudice and inevitability. The chapter concludes with a discussion of judicial review proceedings continued as though begun by writ.
This chapter considers the constitutional foundation of judicial review in Hong Kong. It begins with an overview of the constitutional foundation of judicial review under UK sovereignty, before turning to its foundation under PRC sovereignty. The PRC Constitution and the Basic Law are considered as potential constitutional foundations of review, along with a consideration of judicial review in the context of ‘one country, two systems’. The relationship between judicial review and both the common law and the rule of law is then explored, along with a brief consideration of whether and to what extent legislative supremacy might offer a potential constitutional foundation in Hong Kong. The chapter concludes with an overview of constitutional review, its relationship with administrative review, and human rights.
This chapter considers the taking into account of irrelevant considerations, and the failure to take into account relevant considerations, as grounds of judicial review. This includes a discussion of the intensity of review if a relevant consideration is taken into account.
This new text provides the most comprehensive and up-to-date coverage of administrative law in Hong Kong. It includes original commentary on judicial review, administrative tribunals, the Ombudsman, the Legislative Council Redress System, Commissions of Inquiry, the Independent Commission Against Corruption, the Equal Opportunities Commission, the Privacy Commissioner for Personal Data, the Audit Commission, subsidiary legislation and more. Drawing on law, policy and practice, it offers detailed analysis while maintaining accessibility, charting developments as Hong Kong continues to evolve as a Special Administrative Region of the People's Republic of China. Administrative Law in Hong Kong is essential reading for judges, practitioners, policymakers, academics, students and commentators with an interest in public law, governance and administration.
This chapter considers two grounds of judicial review which constitute insufficient retention of discretion, namely unlawful delegation, and divestiture and relinquishment. The discussion of unlawful delegation begins by introducing the Carltona principle and a consideration of the extent to which the principle is constitutionally apposite in Hong Kong. Factors such as the status of the delegator and the delegate, the nature of the delegated power and the relationship between agency and delegation, are also considered. The chapter then discusses divestiture and relinquishment of discretion.
This chapter considers breach of legitimate expectations as a ground of judicial review. After introducing the conceptual aspects of this ground, it explores the key requirements for successful establishment of the ground including those relating to the representation (if any) given by the public body, the role of knowledge and (detrimental) reliance, the legitimacy of the applicant’s expectation, legitimate expectation as a relevant consideration when exercising discretion, the role of overriding policy considerations, and both procedural and substantive protection of legitimate expectations by the courts. This includes a discussion of key cases such as Ng Siu Tung v Director of Immigration and R v North and East Devon Health Authority, ex parte Coughlan. Finally, the chapter considers whether and to what extent ultra vires representations can generate legitimate expectations.
This chapter gives a detailed discussion of delay arising as an issue at the leave stage in an application for judicial review. The relevant principles and rules are introduced, followed by an explanation of the requirement for promptness. The various reasons which may justify an extension of time are then explored, followed by a consideration of the rule that the court has discretion to refuse to grant leave or any relief sought on the application for judicial review if it considers that the granting of 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.
This chapter begins with a detailed discussion of statutory exclusion of review, in particular by means of the statutory ouster clause. This is followed by considering statutory limitation of review, including both the time-limited ouster and the partial ouster. Non-justiciability is considered as a bar to judicial review proceedings. The chapter concludes with a discussion of the variable intensity of review, in particular deference seen in such contexts as the Chief Executive’s power to pardon criminal offenders or commute their penalties, and prosecutorial discretion.
This chapter discusses improper purposes, improper motives and abuse of power as grounds of judicial review. The discussion of improper purposes and improper motives includes consideration of multiple purposes or motives and the approach of the courts in determining the legality of a decision-maker’s actions in such a case. Abuse of power and misuse of power form the subject of discussion in the remainder of the chapter.
This chapter considers standing to make an application for judicial review. It describes the principles and rules relating to the requirement to demonstrate a sufficient interest in the case to which the application relates. It then discusses personal standing and representative standing, the latter of which is divided into proxy, organisational and public interest standing. This concludes with a discussion of costs in public interest standing applications.