Judicial Review & Law - Faculty of Law, The University of Hong Kong

Judicial Review & Law 

Benny Y. T. Tai 

Associate Professor 

Faculty of Law 

University of Hong Kong 

Learning Outcomes 

After attending this session, students should be 

able to: 

• illustrate the concept of jurisdiction 

• explain errors of law that may cause an 

administrative decision to be invalidated by the 

Court 

• analyze the application of the “Anisminic 

principles” in Hong Kong 

• apply principles of statutory interpretation 

1 

2 

Issues 

• What is a jurisdictional error? 

• What is an error of law? 

• Does every error of law go to jurisdiction? 

• What is the status of the “Anisminic 

principles” in Hong Kong? 

• What are the principles of statutory 

interpretation? 

Propose(( 

bill 

Legislative 

Council! 

Empower(( 

&(delimit( 

Cons7tu7onal( 

(review 

Applica7on(for( 

judicial(review 

Market! 

Central 

Government! 

HKSAR 

Government! 

Judicial( 

review 

Judiciary! 

Civil Society; 

Media & 

General Public! 

Power(to( 

review? 

Procedural( 

and( 

substan7ve( 

decisions 

A governance 

problem! 

3 

4

ULTRA VIRES 

Grounds of Judicial Review 

• Illegality 

• Irrationality 

• Procedural Impropriety 

5 

6 

Chief Justice Geoffrey Ma’s speech at 

Ceremonial Opening of the legal Year 2011 

“The judicial oath requires judges to look no further than 

the law as applied to the facts. The starting point and the 

end position in any case, is the law. 

This is the true role of the courts. The courts do not serve 

the people by solving political, social or economic 

issues. They are neither qualified nor constitutionally able 

to do so. However, where legal issues are concerned, this is 

the business of the courts and whatever the context or the 

controversy, the courts and judges will deal with these 

legal issues.” 

 

7 

Issues that court will consider 

in Judicial Review 

law 

as applied 

to the facts 

fairly 

8

4 steps (issues) in Exercising 

Administrative Powers 

procedures 

law 

fact (evidence) 

application 

The concept of 

jurisdiction 

9 

10 

Jurisdictional Error 

Condition Precedent 

12

Jurisdictional Error 

SMOKING (PUBLIC HEALTH) 

ORDINANCE (CAP 371) 

3 (1) The areas described in Part 1 of Schedule 2 

are designated as no smoking areas. 

…(2) No person shall smoke or carry a lighted 

cigarette, cigar or pipe in a no smoking area. 

13 

14 



Part 1 of Schedule 2: 

19. An indoor area in- 

(a) any shop, department store or shopping mall; 

(b) any market (whether publicly or privately 

operated or managed); 

(c) any supermarket; 

(d) any bank; 

(e) any restaurant premises; 



2. ”indoor" () means— 

(a) having a ceiling or roof, or a cover that 

functions (whether temporarily or permanently) 

as a ceiling or roof; and 

(b) enclosed (whether temporarily or 

permanently) at least up to 50% of the total area 

on all sides, except for any window or door, or 

any closeable opening that functions as a 

window or door; 

15 

16

A restaurant with an outdoor extension 

A restaurant with an outdoor extension 

• It has an extension outwards from the main premises up to the 

pavement. 

• It is covered by a blue canopy which functioned as a roof. 

• Plastic curtains were hung on three sides of the canopy, except 

the side adjoining the main premises. These curtains could be 

completely rolled up or unrolled to hang down to ground level. 

• The side of the extension fronting the pavement has an 

entrance with a door on its left portion, viewing it from the 

pavement, and there are flowerbeds to the right of the entrance. 

• The curtains on the left side of the extension (viewing it from 

the pavement) as well as those on the side fronting the 

pavement are rolled down. 

• The curtains on the right side of the extension is not rolled 

down. 

17 

18 

Jurisdictional error of law 

At least 50% of the total 

area of all sides must be 

enclosed, irrespective of 

how the enclosed area is 

distributed among the 

various sides 

The cigarette 

is lighted. 

Jurisdictional error of fact 

Indoor: “at least up to 50% of the total area on all sides” is “at least 

50% of the total area of each and every side ” 

19 

No person shall smoke or carry a lighted cigarette, cigar or 

pipe in a no smoking area 

20

Non-Jurisdictional error of law 

A big hole on the curtain 

is considered to be a 

window and is excluded 

in calculating the total 

area. Total area still above 

50%. 

Non-Jurisdictional error of fact 

He is 

smoking a 

cigarette. 

Indoor: at least up to 50% of the total area on all sides, except for any 

window or door, or any closeable opening that functions as a window 

No person shall smoke or carry a lighted cigarette, cigar or 

pipe in a no smoking area 

or door 21 

22 

Issues that court will consider 

in Judicial Review 

law 

as applied 

to the facts 

fairly 

Error of law 

23 

24

Error of Law 

Vallejos Evangeline Banao v. Commissioner of Registration and 

Another HCAL 124/2010 

1. Administrative decisions without 

legal basis 

(a) administrative decisions made on the basis of 

an unconstitutional law 

 

Foreign Domestic Helpers cases 

25 

26 



Article 24(2)(4) of the Basic Law: 

“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 seven years and 

have taken Hong Kong as their place of permanent 

residence before or after the establishment of the 

Hong Kong Special Administrative Region.” 



Immigration Ordinance: 

“2(4) For the purposes of this Ordinance, a person 

shall not be treated as ordinarily resident in Hong 

Kong- 

(a) during any period in which he remains in Hong 

Kong… 

(vi) while employed as a domestic helper who is 

from outside Hong Kong…” 

27 

28



Article 154 of the Basic Law: 

“The Government of the Hong Kong Special 

Administrative Region may apply immigration 

controls on entry into, stay in and departure from 

the Region by persons from foreign states and 

regions.” 



Meaning of ordinary residence: 

“…if there be proved a regular, habitual mode of 

life in a particular place, the continuity of which 

has persisted despite temporary absences, ordinary 

residence is established provided only it is adopted 

voluntarily and for a settled purpose.” 

29 

30 



Meaning of settled purpose: 

“…[t]he purpose may be one; or there may be several. It may 

be specific or general. All that the law requires is that there is a 

settled purpose. This is not to say that the ‘propositus’ intends 

to stay where he is indefinitely; indeed his purpose, while 

settled, may be for a limited period. Education, business or 

profession, employment, health, family, or merely love of the 

place spring to mind as common reasons for a choice of regular 

abode. And there may well be many others. All that is necessary 

is that the purpose of living where one does has a sufficient 

degree of continuity to be properly described as settled.” 

31 



• V employed as a domestic helper in Hong Kong since 1986. 

• resided in Hong Kong for more than 22 years 

• integrated into the local community; has friends in Hong Kong; 

active member of a church and participates in volunteer work of 

the church in her free time; took various courses in Hong Kong in 

her spare time. 

• husband fully supported her plan and was willing to join her in 

Hong Kong; children had grown up and married and had their 

own families and were financially independent; transferred her 

mini store and the purified water business in Philippine to her 

fourth son. 

• employer and his family members treated her as part of their 

family; supported her application as he wanted to employ her to 

look after his store; indicated that he would continue to provide 

accommodation to her upon the change of her status. 

32

Gutierrez Josephine B. v. Commissioner of Registration and Registration 

of Persons Tribunal HCAL 136/2010 and HCAL 137/2010 

• G has been working in Hong Kong as a foreign domestic helper 

since 1991. Her child, J, was born in Hong Kong on 1 December 

1996 and he is now almost 15 years old. 

• G has been in Hong Kong for almost 19 years; does not have a 

“home” in the Philippines; husband separated since 1992 and he is 

now living with another woman in the Philippines with whom he 

has two children; her children under this marriage are in the 

Philippines are all grown up and having their own lives; 2 of her 

other children are currently working in Hong Kong as FDHs; her 

mother is in the Philippines and is being supported by her other 

children. 



• She does not own any land or property in the Philippines; all of 

her assets are located in Hong Kong; has taken out a Lifetime 

Protection Plus policy with the HSBC that requires instalment 

payments up to the age of 65. 

• G developed her social circle in Hong Kong; active member of the 

Kowloon Filipino Baptist Church; baptized into the Baptist faith 

in February 2003 and worships there every Sunday; takes part in 

the choir during services and is involved in sharing the gospel of 

Christ with new people in the church 

• On the seven years immediately prior to the application of her 

son, there were three occasions when the son was away from 

Hong Kong; on each occasion, upon his return, he was given 

permission to enter and remain in Hong Kong on visitor condition 

33 

34 



Decision of the Court of First Instance: 

“…though it is ultimately for the court to decide what is the law 

pertaining to the ordinary residence and the permanence 

requirements, the primary decision maker who makes the relevant 

finding of facts and applies the facts to the law is the Director (and 

on appeal, the Tribunal). In respect of matters which fall within the 

primary remit of the Director, the court would only intervene on 

traditional judicial review grounds though examining the primary 

decisions with anxious scrutiny given the fundamental nature of the 

right being involved. 

… under this approach, insofar as the application of the relevant 

legal principle involves value judgments, the court would not 

disturb such value judgments on the part of the primary decision 

maker unless it is shown to be unreasonable on the enhanced 

Wednesbury standard.” 

35 




“The permanence requirement makes it necessary for the 

applicant to satisfy the Director both that he intends to 

establish his permanent home in Hong Kong and that he 

has taken concrete steps to do so. This means that the 

applicant must show that his residence here is intended to 

be more than ordinary residence and that he intends and 

has taken action to make Hong Kong, and Hong Kong 

alone, his place of permanent residence.” 

36

Gutierrez Josephine B. v. Commissioner of Registration and 

Registration of Persons Tribunal HCAL 136/2010 and HCAL 137/2010 


“Before one can make a place his or her only permanent 

residence, he or she must take some concrete steps turning 

such aspiration into a realistic proposition in terms of 

long term livelihood at that place. This can either be 

achieved by one’s independent means or the sponsorship of 

other persons. 

If an applicant can produce evidence of such concrete step, 

then the evidence as to the severance of link with the 

country of origin would be relevant in making good a case 

of taking Hong Kong as the only place of permanent 

residence. But an applicant cannot rely on the latter 

without the proof of the former. ” 

37 

Gutierrez Josephine B. v. Commissioner of Registration and 

Registration of Persons Tribunal HCAL 136/2010 and HCAL 137/2010 


“Applying the enhanced Wednesbury test, I am unable to 

say that the conclusion of the Tribunal is irrational or 

unreasonable. Nor do I see how the Tribunal can be 

criticized for failing to take relevant matters into account. 

As regards other matters on the list, none of them can 

really be regarded as concrete step towards taking Hong 

Kong as the only permanent residence of the mother. 

…. unlike the successful applicant in HCAL 124 of 2010, 

there is no evidence to suggest that the employer would 

sponsor her livelihood in Hong Kong in support of her 

application for permanent residence.” 

38 


1. Administrative decisions without 

legal basis 

(b) administrative decisions made on the basis of a 

subsidiary legislation which conflicted with the 

primary statute 

 

39 

Pang Tak Kwai v. Commissioner of Correctional 

Services and Another HCAL1610/2000 

• Pang, a Technical Instructor in the Correctional Services Department. 

• He was charged of the offence of possession of prohibited articles in 

prison contrary to section 18A(1)(a) of the Prisons Ordinance and was 

convicted. 

• Following his conviction, he was dismissed pursuant to rule 255B of the 

Prison Rules (Cap. 234): 

“(1) The punishment of a Chief Officer, subordinate officer or other 

person employed in the prisons who in criminal proceedings is found 

guilty of or pleads guilty to a criminal offence shall be in accordance 

with this rule. 

(4) The Chief Executive may, after considering any representations 

made by the officer or person, award any one or more of the 

punishments he may award under rule 254(b) in respect of a 

disciplinary offence by an officer (other than an Assistant Officer) or 

other person employed in the prisons.“ 

40



• Rule 255B of the Prison Rules was enacted under section 25 of 

the Prison Ordinance: 

“The Chief Executive in Council may make rules providing for … 

(d) the acts which shall be disciplinary offences on the part of any 

officer of the Correctional Services Department or other person 

employed in the prisons and hostels; 

(da) the inquiry by the Commissioner, Deputy Commissioner or 

such other authority as may be prescribed into a disciplinary 

offence by any such officer or other person; 

(db) the procedure to be followed in any case where a disciplinary 

offence or a breach of duty is alleged to have been committed by 

any such officer or other person; 

(dc) the punishment, including- 

(i) dismissal….of such officer or other person for any disciplinary 

offence;..... 




”The principle in this area is succinctly set out in Bennion on 

Statutory Interpretation 3rd Ed. section 58 : (1) Any provision 

of an instrument constituting delegated legislation is ineffective 

if the provision goes beyond the totality of the legislative power 

which (expressly or by implication) is conferred on the delegate 

by the enabling Act. The provision is then said to be ultra vires 

(beyond the powers). This applies even where the instrument 

has been sanctioned by a confirming authority. However the 

instrument is not to be treated as ineffective in any respect on 

the ground of ultra vires unless and until declared to be so by a 

court of competent jurisdiction.” 

(l) all other matters relating to the prisons and hostels.” 

41 

42 




“It is clear that section 25(1)(d), (da), (db) and (dc) are all 

in relation to disciplinary offence. Unless such a criminal 

offence is a disciplinary offence of which rules for 

punishment can be made or comes within the general 

provision of “all other matters relating to the prisons and 

hostels” then the power of the Governor-in-Council who 

made rule 255B for the punishment of a person employed 

in prisons found guilty of criminal offence was not 

authorized by the enabling section in section 25 of the 

Prisons Ordinance.” 

43 




“A ‘disciplinary offence’ means a disciplinary offence 

prescribed by rules made under section 25: section 2 of the 

Prisons Ordinance. Rule 239 provides that any officer of the 

Correctional Services Department or other persons employed in 

the prisons commits a disciplinary offence who, for example, 

without good and sufficient cause fails to carry out any lawful 

order, whether written or verbal, or is subordinate towards any 

officer in the service of the Department whose orders it is for 

the time being his duty to obey. Rule 239 lists 18 such acts. 

It is clear that in order to ascertain whether an act is a 

‘disciplinary offence’, one has to turn to rule 239 and 

nowhere else.” 

44




“As stated in Bennion at page 184 : ‘An enabling enactment 

frequently includes so-called 'sweeping-up words' intended to 

confer residual powers to complete those expressly spelt out..... 

The courts tend to regard such words as being strictly limited in 

scope. '..... "supplementary" means ... something added to what 

is in the Act to fill in details or machinery for which the Act 

itself does not provide -supplementary in the sense that it is 

required to implement what was in the Act'.’ Item (l) clearly 

cannot be used to complete what is expressly left out in 

section 25, namely rules providing for punishment of persons 

employed in prisons found guilty of a criminal offence.” 

45 

2. Administrative decisions contravened 

the terms of legal authority 

-the statutory conditions for exercising an 

administrative power has not been satisfied 

 


46 

Kwan Shung King v. Housing Appeal Tribunal 

HCAL 161/1999 

HOUSING ORDINANCE - SECT 19: 

“(1) Notwithstanding the terms thereof, the 

Authority may terminate any lease- 

…(b) otherwise, by giving such notice to quit as 

may be provided for in the lease or 1 month's notice 

to quit, whichever is the greater.” 


HCAL 161/1999 

Standard-term Tenancy Agreement contains the 

following material terms: 

"(II) The Tenant agrees with the Landlord as follows: 

...(11) Not to use or cause or permit the said flat to be used 

for any illegal or immoral purpose. 

(IV) IT IS HEREBY expressly agreed as follows: 

... (7) For the purposes of this Agreement any act, neglect 

or default of any member of the Tenant's family or of any 

servant of his shall be deemed to be the act, neglect or 

default of the Tenant.” 

47 

48


HCAL 161/1999 

• Kwan, a tenant, entrusted the flat to his son who then 

entrusted it to his friend Fan. Fan was convicted of 

the offence of permitting a place to be used as a 

gambling establishment. Kwan alleged that he and 

his family members did not have knowledge that the 

unit was used for gambling. 

• Housing Appeal Tribunal confirming a notice to quit 

served by the Housing Authority on Kwan: 

“[Kwan], being the tenant of the unit, had 

abstained from taking reasonable steps to prevent 


HCAL 161/1999 


“While it may not be reasonable to confine the 

meaning of a "servant" in Clause 4(g) to a personal 

or domestic attendant or a person employed in a 

house to perform household duties, it certainly 

denotes a employer and employee relationship. The 

plain meaning of the word "servant" does not 

cover a friend, a visitor or a relative.” 

the unit from being used for illegal purposes…” 

49 

50 


HCAL 161/1999 


“…'permit' means one of the two things, either to give 

leave for an act which without that could not be legally 

done, or to abstain from taking reasonable steps to 

prevent the act where it is within a man's power to 

prevent it… 

In my view, it is only within a man's power to prevent an 

act if the man has knowledge or at least suspicion that 

the act will be committed. There is no suggestion that the 

Applicant or any of his family members could reasonably 

have foreseen that Fan would on that isolated occasion 

make use of the flat for gambling activities.” 


HCAL 161/1999 


“The Applicant might well have been a most irresponsible 

tenant by allowing others to have keys to the flat and did 

not care about the matter any more. But such irresponsible 

attitude is not abstaining from taking reasonable steps to 

prevent the flat from being used for illegal purpose when 

he could not have foreseen and had no reasonable 

suspicion that the flat would be so used. 

In the absence of a breach of the tenancy agreement, there 

was no valid basis upon which the Housing Authority 

could serve the notice to quit on the Applicant.” 

51 

52

3. Administrative decisions exceeded the 

scope of legal authority granted under a 

statute 

 


Lam Siu Tai v The Commissioner of Correctional Services and the 

Secretary for the Civil Service 

[2000] 1 HKLRD A1; CA No. 25 of 2000 

• Lam, a prison officer, was found guilty of an offence 

under the Prison Rules. He was heard by a 

Superintendent and was awarded a severe reprimand 

and a fine of $500. 

• The Commissioner of Correctional Services 

reviewed the original punishment and awarded a 

new punishment of a severe reprimand and a fine of 

$20,000. 

• Lam’s monthly salary was HK$53,000 when the 

Commissioner reviewed his punishment. 

53 

54 




Prison Rules, Rule 255C:, 

“…the Commissioner may, of his own motion,… 

review the … punishment… 

(2) Upon a review under this rule the 

Commissioner … may do any of the things 

described in rule 255F… (c) …” 




Prison Rules, Rule 255F: 

“Upon an appeal,… the Commissioner… may- 

…(c) ….substitute any other punishment which 

could have been awarded in the first instance;…” 

55 

56




Prison Rules, Rule 247: 

“The Superintendent may make any of the 

following disciplinary awards- 

(a) (i) administer a fine of an amount not exceeding 

1 day's pay;…” 

57 




Prison Rules, Rule 254: 

“A Chief Officer, subordinate officer (other than an 

Assistant Officer) or other person employed in the prisons 

who is found guilty of or pleads guilty to a disciplinary 

offence may be punished by the award of any one or more 

of the following punishments- 

(a) by the Commissioner- 

…(iii)… forfeiture of pay (excluding allowances) for a 

period not exceeding one month or the period of absence, 

whichever is the greater; 

(iv) a fine not exceeding one month's salary (excluding 

allowances)…” 

58 





“The dispute concerns the meaning of the words ‘any other 

punishment which could have been awarded in the first 

instance’ in item (c) of Rule 255F. The Respondents argued 

that the increased fine is something that the Commissioner 

can impose in the first instance because of the provision of 

Rule 254(a)(iv), namely a fine not exceeding one month's 

salary. 

In my view, the construction urged upon by the 

Respondents is wrong. Punishment which could have been 

awarded in the first instance, means punishment which 

could have been awarded by the Superintendent who 

heard the charge in the first instance.” 

59 


4. Administrative decisions made on the 

basis of a legal error 

 

60

non-jurisdictional 

error of law: 

a valid decision 

61 

Chang Wing Tai, in the matter of an application by for 

leave to apply for judicial review 

MP No. 1987 of 1987 

• Chan was a shareholder in the Overseas Trust Bank. The assets of 

the Bank were acquired by the government by the Overseas Trust 

Bank Acquisition Ordinance. The objects of the Ordinance are to 

provide for the acquisition by the government of the Bank, the 

compensation payable in respect of such acquisition and the 

carrying on of the business of the Bank. 

• S.10 of the Ordinance empowered the Financial Secretary to make 

such regulations as may be necessary for the implementation of the 

objects of the Ordinance. Under the Overseas Trust Bank 

(Compensation of Registered Holders of Shares) Regulations, a 

Tribunal was set up to assess the value of shares in the Bank. The 

schedule of the Regulation lays down detailed criteria how shares 

in the bank are to be valued. 

62 




• Para 3(a)(v) of the schedule of the regulation provides that: 

”3. For the purpose of making calculation under para 2 the Tribunal shall 

(a) disregard... 

(v) the possibility of any claim by the company against any director, 

servant, auditor, adviser or agent of the company and the effect that such 

events may have had on the amount to be calculated under that 

paragraph.” 

• Chan appeared before the Tribunal and alleged that para. 3(a)(v) was 

contrary to the stated purposes of the Ordinance and accordingly ultra 

vires. He argued that it was possible for the government to recover 

substantial sums from the auditors and/or directors. It was most unjust 

that the government may receive damages and the shareholders would in 

effect be excluded from any benefit from actions taken. 

• The Tribunal, however, rejected the argument and decided that that 

paragraph was not ultra vires. Chan now applies for judicial review of 

the Tribunal's decision on the value of the shares. 

63 




Decision of the Court: 

“The important matter to be determined is whether it can be 

claimed that Mr. Justice Mortimer merely made an error in 

law on the face of his Decision or on the other hand 

whether it can be argued that he exceeded his jurisdiction. 

… 

I am … satisfied that Mr. Justice Mortimer did not exceed 

his jurisdiction when making the determination to the effect 

that para. 3(a)(v) of the schedule was not ultra vires. In 

such circumstances it is irrelevant to consider whether he 

was right or wrong. His determination that it was intra 

vires was the end of the matter and final.” 

64

error of law 

on the face of record: 

an exception to 

non-jurisdictional error of law 

not reviewable 

R. v. Northumberland Compensation Appeal Tribunal, 

ex parte Shaw [1952] 1 KB 338 

65 

66 



• Shaw was formerly the clerk to the West Hospital. He was 

dismissed and compensation was paid made under the National 

Health Service (Transfer of Offices and Compensation) 

Regulations, 1948. 

• According to the regulation, the term of service of Shaw would 

be taken into account in calculating his compensation. It was 

decided that only Shaw's service with the Hospital but not also 

his other service with the local government would be considered 

in determining his term of service. Being aggrieved by the 

amount of the compensation awarded to him, he referred the 

matter to the tribunal designated by the regulation. The tribunal 

agreed that the only service to be taken into account was the 

service with the Hospital. 

• Was the decision of the tribunal reviewable by the Court? 



Lord Denning: 

“…the Court of King's Bench has an inherent jurisdiction to 

control all inferior tribunals, not in an appellate capacity, but in a 

supervisory capacity. This control extends not only to seeing that 

the inferior tribunals keep within their jurisdiction, but also to 

seeing that they observe the law. The control is exercised by 

means of a power to quash any determination by the tribunal 

which, on the face of it, offends against the law. The King's Bench 

does not substitute its own views for those of the tribunal, as a 

Court of Appeal would do. It leaves it to the tribunal to hear the 

case again, and in a proper case may command it to do so. When 

the King's Bench exercises its control over tribunals in this way, it 

is not usurping a jurisdiction which does not belong to it. It is only 

exercising a jurisdiction which it has always had.” 

67 

68



Lord Denning: 

“It will have been seen that throughout all the cases there is one 

governing rule: Certiorari is only available to quash a decision 

for error of law if the error appears on the face of the record. 

What, then, is the record?…the record must contain at least the 

document which initiates the proceedings; the pleadings, if 

any; and the adjudication; but not the evidence, nor the 

reasons, unless the tribunal chooses to incorporate them. If the 

tribunal does state its reasons, and those reasons are wrong in 

law, certiorari lies to quash the decision. 

…I am clearly of opinion that an error admitted openly in the 

face of the court can be corrected by certiorari as well as an 

error that appears on the face of the record. The decision must 

be quashed.” 

69 

Exclusion clause 

70 

An example of exclusion clause or ouster clauses 

Section 19, Housing Ordinance: 

(1) Notwithstanding the terms thereof, the Authority may 

terminate any lease- 

(a) without notice, if ,in the opinion of the Authority, the 

land held under the lease has become unfit for human 

habitation, a nuisance, dangerous to health or unsafe… 

(3) No court shall have jurisdiction to hear any 

application for relief by or on behalf of a person whose 

lease has been terminated under subsection (1) in 

connection with such termination. 

Anisminic Ltd. v. Foreign Compensation Commission 

[1969] 2 AC 147 

Lord Reid: 

“It is a well established principle that a provision ousting the 

ordinary jurisdiction of the court must be construed strictly - 

meaning, I think, that, if such a provision is reasonably capable of 

having two meanings, that meaning shall be taken which preserves 

the ordinary jurisdiction of the court. 

…Undoubtedly such a provision protects every determination 

which is not a nullity. But I do not think that it is necessary or 

even reasonable to construe the word ‘determination’ as 

including everything which purports to be a determination but 

which is in fact no determination at all.” 

71 

72


[1969] 2 AC 147 


[1969] 2 AC 147 

• Anisminic owned a mining property in Egypt. 

• Property in Egypt belonging to British subjects was 

sequestrated by the Egyptian Government in 1957. 

Anisminic sold its whole business in Egypt to TEDO. 

By this agreement Anisminic assigned to TEDO any 

claim they might have to receive compensation directly 

from the Egyptian Government: did not any claim it 

might have to receive something from the British 

Government. 

• In 1959, the Egyptian Government compensated the 

British Government and a lump sum was paid to the 

British Government. 

73 

74 


[1969] 2 AC 147 

• The Foreign Compensation (Egypt) (Determination and Registration 

of Claims) Order 1959 made under Foreign Compensation Act, 1950 

authorized the Foreign Compensation Commission to deal with 

compensation payments made by the Egyptian Government. The 

effect of the Order was to confer legal rights on persons who might 

previously have hoped or expected that in allocating any sums 

available discretion would be exercised in their favour. The order 

required that the applicant has to be: 

”(i)...the owner of the property or is the successor in title of such 

person; ....and (ii) that the person referred to as aforesaid and any 

person who became successor in title of such person ....... were British 

nationals.....” 

• Anisminic submitted a claim under the order to the Commission 

concerning its property that was sequestrated by the Egyptian 

Government but was rejected on the ground that his successor in title 

was not a British National. 

• The order included a clause stating that: 

”The determination by the commission of any application made to 

them under this Act shall not be called in question in any court of 


[1969] 2 AC 147 

Lord Reid: 

“It has sometimes been said that it is only where a tribunal acts 

without jurisdiction that its decision is a nullity. But in such cases 

the word ‘jurisdiction’ has been used in a very wide sense, and I 

have come to the conclusion that it is better not to use the term 

except in the narrow and original sense of the tribunal being 

entitled to enter on the inquiry in question. But there are many 

cases where, although the tribunal had jurisdiction to enter on 

the inquiry, it has done or failed to do something in the course of 

the inquiry which is of such a nature that its decision is a nullity. 

It may have given its decision in bad faith. It may have made a 

decision which it had no power to make. It may have failed in the 

course of the inquiry to comply with the requirements of natural 

justice.” 

law.” 75 

76


[1969] 2 AC 147 

Lord Reid: 

“It may in perfect good faith have misconstrued the provisions 

giving it power to act so that it failed to deal with the question 

remitted to it and decided some question which was not remitted 

to it. It may have refused to take into account something which it 

was required to take into account. Or it may have based its decision 

on some matter which, under the provisions setting it up, it had no 

right to take into account. I do not intend this list to be 

exhaustive. ...But if they reach a wrong conclusion as to the width 

of their powers, the court must be able to correct that - not because 

the tribunal has made an error of law, but because as a result of 

making an error of law they have dealt with and based their 

decision on a matter with which, on a true construction of their 

powers, they had no right to deal. ” 

77 


[1969] 2 AC 147 

Lord Reid: 

“…the words ‘and any person who became successor in title to 

such person’ in article 4 (1) (b) (ii) have no application to a case 

where the applicant is the original owner. It follows that the 

commission rejected the appellants’ claim on a ground which they 

had no right to take into account and that their decision was a 

nullity. I would allow this appeal. ” 

78 

4. Administrative decisions made on the 

basis of a legal error 

 


every error of law is a 

jurisdictional error? 

Every error of Law goes to jurisdiction? 

Positive: 

Lord Denning in Pearlman v. Keepers and 

Governors of Harrow School [1979] QB 56 

 

79 

80

Pearlman v. Keepers and Governors of Harrow School 

[1979] QB 56 


[1979] QB 56 

• Pearlman had installed a full central-heating system in the 

premises. He applied to the County Count to have the rateable 

value of the premises be reduced in accordance with Schedule 

8, paragraph 1 (2) of the Housing Act 1974. 

• In order to qualify for a reduction, the improvement must be an 

“improvement made by the execution of works amounting to 

structural alteration, extension or addition.” 

• The County Court refused. 

• Schedule 8, paragraph 2 of the Housing Act 1974 provided that 

decision of the judge in the county court would be “final and 

conclusive.” 

• Was the decision of the county court reviewable? 

81 

82 


[1979] QB 56 

Lord Denning: 

“It has been held that certiorari will issue to a county court judge if he acts without 

jurisdiction in the matter…If he makes a wrong finding on a matter on which his 

jurisdiction depends, he makes a jurisdictional error; and certiorari will lie to quash 

his decision: see Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 

A.C. 147, 208, per Lord Wilberforce. But the distinction between an error which 

entails absence of jurisdiction - and an error made within the jurisdiction - is very 

fine. So fine indeed that it is rapidly being eroded. 

…So fine is the distinction that in truth the High Court has a choice before it 

whether to interfere with an inferior court on a point of law. If it chooses to interfere, 

it can formulate its decision in the words: ‘The court below had no jurisdiction to 

decide this point wrongly as it did.’ If it does not choose to interfere, it can say: ‘The 

court had jurisdiction to decide it wrongly, and did so.’ Softly be it stated, but that is 

the reason for the difference between the decision of the Court of Appeal in 

Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862 and the 

House of Lords [1969] 2 A.C. 147. 

I would suggest that this distinction should now be discarded. The High Court has, 

and should have, jurisdiction to control the proceedings of inferior courts and 

tribunals by way of judicial review. When they go wrong in law, the High Court 


[1979] QB 56 

Lord Denning: 

“..the judge made an error of law when he determined that the 

installation of a full central heating system was not a ‘structural 

alteration ... or addition’ to the house. His decision was made by the 

statute ‘final and conclusive.’ Those words do not exclude remedy by 

certiorari, that is, by judicial review. I would, therefore, allow the 

appeal and make an order quashing his decision…“ 

should have power to put them right.“ 83 

84


Re Racal Communication Ltd. [1981] AC 374 

Conditional (administrative 

tribunals): 

Lord Diplock in Re Racal Communication Ltd. 

[1981] AC 374 Lord Brwone Wilkinson in R v 

Lord President of the Privy Council, ex parte 

Page [1993] AC 682 

85 

86 


• The Director of Public Prosecution applied to the High Court for 

an order to inspect the books of Company R on the ground that 

there is reasonable cause to believe that any officer of the 

Company committed an offence in connection with the 

management of the company's affairs in accordance with s. 441 of 

the Company Act 1948. 

• The application was rejected on the ground that s. 441 only 

applied to offences committed in the course of the internal 

management of a company. 

• An appeal to the High Court's decision was made to the Court of 

Appeal though s. 441 provided that the decision of a High Court 

judge on an application shall not be appealable. 

• The Court of Appeal allowed the appeal. 

• Any error? Did the Court of Appeal have the power to entertain 

an appeal concerning the decision of the High Court? Did the 

Court of Appeal have the power to review the decision of the 


Lord Diplock: 

“In Anisminic [1969] 2 A.C. 147 this House was concerned only 

with decisions of administrative tribunals…It is a legal landmark; 

it has made possible the rapid development in England of a rational 

and comprehensive system of administrative law on the foundation 

of the concept of ultra vires. It proceeds on the presumption that 

where Parliament confers on an administrative tribunal or 

authority, as distinct from a court of law, power to decide 

particular questions defined by the Act conferring the power, 

Parliament intends to confine that power to answering the question 

as it has been so defined: and if there has been any doubt as to 

what that question is, this is a matter for courts of law to resolve 

in fulfilment of their constitutional role as interpreters of the 

written law and expounders of the common law and rules of 

equity. So if the administrative tribunal or authority have asked 

themselves the wrong question and answered that, they have done 

something that the Act does not empower them to do and their 

decision is a nullity.” 

High Court? 87 

88


Lord Diplock: 

“Parliament can, of course, if it so desires, confer upon 

administrative tribunals or authorities power to decide questions of 

law as well as questions of fact or of administrative policy, but this 

requires clear words, for the presumption is that where a decisionmaking 

power is conferred on a tribunal or authority that is not a 

court of law, Parliament did not intend to do so. The breakthrough 

made by Anisminic [1969] 2 A.C. 147 was that, as 

respects administrative tribunals and authorities, the old 

distinction between errors of law that went to jurisdiction and 

errors of law that did not, was for practical purposes abolished. 

Any error of law that could be shown to have been made by them 

in the course of reaching their decision on matters of fact or of 

administrative policy would result in their having asked themselves 

the wrong question with the result that the decision they reached 

would be a nullity.” 

89 


Lord Diplock: 

“But there is no similar presumption that where a decision-making 

power is conferred by statute upon a court of law, Parliament did not 

intend to confer upon it power to decide questions of law as well as 

questions of fact. Whether it did or not and, in the case of inferior courts, 

what limits are imposed on the kinds of questions of law they are 

empowered to decide, depends upon the construction of the statute 

unencumbered by any such presumption. In the case of inferior courts 

where the decision of the court is made final and conclusive by the 

statute, this may involve the survival of those subtle distinctions 

formerly drawn between errors of law which go to jurisdiction and 

errors of law which do not that did so much to confuse English 

administrative law before Anisminic [1969] 2 A.C. 147; but upon any 

application for judicial review of a decision of an inferior court in a 

matter which involves, as so many do, interrelated questions of law, fact 

and degree the superior court conducting the review should not be astute 

to hold that Parliament did not intend the inferior court to have 

jurisdiction to decide for itself the meaning of ordinary words used in the 

statute to define the question which it has to decide.” 

90 


Lord Diplock: 

“The High Court is not a court of limited jurisdiction and its 

constitutional role includes the interpretation of written laws. There 

is thus no room for the inference that Parliament did not intend 

the High Court or the judge of the High Court acting in his 

judicial capacity to be entitled and, indeed, required to construe 

the words of the statute by which the question submitted to his 

decision was defined. There is simply no room for error going to 

his jurisdiction, nor, as is conceded by counsel for the respondent, 

is there any room for judicial review. Judicial review is available as 

a remedy for mistakes of law made by inferior courts and tribunals 

only. Mistakes of law made by judges of the High Court acting in 

their capacity as such can be corrected only by means of appeal 

to an appellate court; and if, as in the instant case, the statute 

provides that the judge,s decision shall not be appealable, they 

cannot be corrected at all.” 

91 

R v Lord President of the Privy Council, ex parte Page 

[1993] AC 682 

• Page was appointed a lecturer in the Department of Philosophy 

at the University of Hull. The letter stated: “The appointment 

may be terminated by either party on giving three months’ 

notice in writing expiring at the end of a term or of the long 

vacation.” 

• As a lecturer, Mr Page became a member of the university 

which is a corporate body regulated by Royal Charter. Section 

34 of the statutes made under the charter provides: 

“1. The vice-chancellor and all officers of the university 

including professors and members of the staff holding their 

appointments until the age of retirement may be removed by 

the council for good cause… 3. Subject to the terms of his 

appointment no member of the teaching research or 

administrative staff of the university (including the vicechancellor) 

shall be removed from office save upon the 

grounds specified in paragraph 2 of this section and in 

pursuance of the procedure specified in clause 1 of this section.” 

• Section 34(2) defines the meaning of "good cause.” 

92


[1993] AC 682 

• Page was given three months' notice terminating his 

appointment on the grounds of redundancy. It is common 

ground that there was no “good cause” within the meaning of 

section 34; the university was relying on the three months’ 

notice term contained in the letter of appointment. 

• Mr Page took the view that on the true construction of section 

34 of the statutes the university had no power to remove him 

from office and terminate his employment save for good cause. 

• Mr Page started an action for wrongful dismissal which action 

was struck out on the grounds that the matter fell within the 

exclusive jurisdiction of the visitor of the university, Her 

Majesty the Queen. 

• Mr Page then petitioned the visitor for a declaration that his 

purported dismissal was ultra vires and of no effect. The petition 

was considered by the Lord President of the Council, on behalf 

of Her Majesty. The petition was dismissed by the visitor. 

• Mr Page then applied by way of judicial review for an order 


[1993] AC 682 

LORD BROWNE-WILKINSON: 

“In my judgment the decision in Anisminic Ltd v Foreign 

Compensation Commission [1969] 2 AC 147 rendered 

obsolete the distinction between errors of law on the face of 

the record and other errors of law by extending the doctrine 

of ultra vires. Thenceforward it was to be taken that 

Parliament had only conferred the decision-making power 

on the basis that it was to be exercised on the correct legal 

basis: a misdirection in law in making the decision therefore 

rendered the decision ultra vires…in general any error of 

law made by an administrative tribunal or inferior court 

in reaching its decision can be quashed for error of law.” 

quashing the visitor's decision. 93 

94 


[1993] AC 682 


“Although the general rule is that decisions affected by 

errors of law made by industrial tribunals or inferior courts 

can be quashed, in my judgment…the rule does not apply in 

the case of visitors. 

In re A Company [1981] AC 374…Lord Diplock pointed 

out, at pp 382-383, that the decision in Anisminic Ltd v 

Foreign Compensation Commission [1969] 2 AC 147 

applied to decisions of administrative tribunals or other 

administrative bodies made under statutory powers: in those 

cases there was a presumption that the statute conferring 

the power did not intend the administrative body to be the 

final arbiter of questions of law.“ 

95 


[1993] AC 682 


“He then contrasted that position with the case where a 

decision-making power had been conferred on a court of 

law. In that case no such presumption could exist: on the 

contrary where Parliament had provided that the decision of 

an inferior court was final and conclusive the High Court 

should not be astute to find that the inferior court's decision 

on a question of law had not been made final and 

conclusive, thereby excluding the jurisdiction to review it. 

In my judgment…there is no jurisdiction in the court to 

review a visitor's decision for error of law committed 

within his jurisdiction.” 

96


S.E. Asia Fire Bricks v. Non-Metallic Products 

[1981] AC 363 

Negative: 

Judicial Committee of the Privy Council in 

S.E. Asia Fire Bricks v. Non-Metallic 

Products [1981] AC 363 

 

97 

98 


[1981] AC 363 

• There was a dispute between S Company and its 

employees. 

• The dispute was referred to the Industrial Court in 

accordance with the Industrial Relations Act 1967. 

• The Industrial Court decided in favour of the employees. 

• Section 29 of the Industrial Relations Act 1967 provided 

that an award of the Industrial Court shall be final and 

conclusive, and no award shall be called in question in 

any court of law. 

• Was the decision of the Industrial Court reviewable? 

99 


[1981] AC 363 

Judicial Committee of the Privy Council 

“The decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation 

Commission [1969] 2 A.C. 147 shows that, when words in a statute oust the power 

of the High Court to review decisions of an inferior tribunal by certiorari, they must 

be construed strictly, and that they will not have the effect of ousting that power if 

the inferior tribunal has acted without jurisdiction or if ‘it has done or failed to do 

something in the course of the inquiry which is of such a nature that its decision is a 

nullity’: per Lord Reid at p. 171. But if the inferior tribunal has merely made an 

error of law which does not affect its jurisdiction, and if its decision is not a nullity 

for some reason such as breach of the rules of natural justice, then the ouster will be 

effective. In Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 

56, 70, Lord Denning M.R. suggested that the distinction between an error of law 

which affected jurisdiction and one which did not should now be "discarded." 

Their Lordships do not accept that suggestion. 

…the error or errors did not affect the jurisdiction of the Industrial Court and their 

Lordships are therefore of opinion that section 29 (3) (a) effectively ousted the 

jurisdiction of the High Court to quash the decision by certiorari proceedings. “ 

100


Approach of Hong Kong courts: 

Positive 

Conditional 

Negative 

101 




Decision of the Court: 

“The important matter to be determined is whether 

it can be claimed that Mr. Justice Mortimer merely 

made an error in law on the face of his Decision or 

on the other hand whether it can be argued that he 

exceeded his jurisdiction. 

Lord Fraser deals with this distinction at page 370 

of S.E. Asia Fire Bricks v. Non-Metallic Products 

[1981] AC 363 (P.C.). He rejects the suggestion 

made by Lord Denning in Pearlman v. Keepers 

[1979] 1 Q.B. 57 that the time had come to discard 

such a distinction.” 

102 

Jill Spruce v University of Hong Kong (Court of 

Appeal) [1991] 2 HKLR 444 

103 


Appeal) [1991] 2 HKLR 444 

• Jill was a senior lecturer of the University of Hong Kong. 

• The terms of the contract between Jill and the University were contained 

in the letter of appointment and the pamphlet named "Term of Service I”: 

"4. (e) i. A teacher may engage in outside practice....outside of or in 

addition to his University duties, in accordance with such regulations as 

the Council may from time to time, but not to the detriment of the 

performance of his University duties.... 

11. The University may at any time terminate the appointment of an 

appointee... subject to the provisions of s.12(9) of the Ordinance.” 

• The University of Hong Kong Ordinance provides that: 

"2(2) 'Good Cause' means such inability to perform efficiently the 

duties of the office, neglect of duty, or such misconduct, whether in an 

official or a private capacity, as rendered the holder unfit to continue in 

office... 

12..(9)...The Council shall not terminate the appointment of any teacher 

except where after due enquiry into the facts and after receiving the 

advice of the Senate on the findings of such enquiry there exists in the 

opinion of the Council good cause for such termination.” 

104


Appeal) [1991] 2 HKLR 444 

• Provisions for consent to outside practice by teachers are to be found in 

the “Memorandum of Guidance and Regulations Governing Outside 

Practice by Teachers” approved by the Council of the University. The 

Memorandum and Regulations were found in the Staff Manual. It was 

stated that the Staff Manual was issued for information only and did not 

form part of the University's contract with its staff. The Memorandum 

and Regulations provide that: 

"I. Approval requirements: (i) A teacher shall not undertake any 

commitment to practice without the approval of his Head of 

Department...” 

• Jill was granted permission to engaged in outside practice. However, this 

permission was withdrawn by Jill's Head of Department, on the ground 

that Jill's outside practice had interfered with her normal University 

duties. 

• Jill continued to engage in outside practice after the permission was 

withdrawn. 

• The Council of the University resolved to terminate the appointment of 

Jill under s.12(9) of the Ordinance. That decision was based upon Jill's 

failure to observe the Memorandum and Regulations. 


Appeal) [1991] 2 HKLR 444 

Decision of the Court of Appeal: 

“…[the decision was] vitiated by error of law on the face of the record 

as to the applicability to the appellant of the Memorandum and 

Regulations. 

…We are bound by Privy Council authority to find that error of law 

on the face of the record does not necessarily import excess of 

jurisdiction on the part of the University albeit there is strong and 

almost contemporaneous House of Lords persuasive authority to the 

contrary. South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic 

Mineral Products Manufacturing Employees Union [1981] AC 363; In 

re Racal Communications Ltd. [1981] AC 374 at p.383 per Lord 

Diplock. The error in the present instance is not one which goes to 

jurisdiction and accordingly the decision of the Council remains 

intra vires and effective until and unless quashed and no remedy other 

• Any error? 105 

106 

than certiorari would seem appropriate.“ 

Thai Muoi v Hong Kong Housing Authority 

HCAL155/1999 

• Thai Muoi was a tenant entered into a tenancy agreement with 

HKHA in respect of a public housing flat. Thai Muoi's husband, 

Ho Lam and their 4 children were also listed as family members in 

the tenancy agreement. 

• Under clause 2(j) of the tenancy agreement, Thai Muoi agreed ‘not 

to use or cause or permit the said flat to be used for any illegal or 

immoral purpose. 

• Clause 4(g) further provides that ‘for the purposes of this 

Agreement any act, neglect or default of any members of the 

Tenant's family or of any servant of his shall be deemed to be the 

act, neglect or default of the Tenant.’ 

• Ho Lam was intercepted at the Customs Arrival Hall, Lowu 

Control Point. He was found to have two packets of raw opium in 

the travelling bag that he was carrying. He was also brought back 

to the flat for a search. Two further packets of raw opium were 

found in a jacket inside a closet in his bedroom. Ho Lam was 

convicted of possession of dangerous drugs and was sentenced to 

the Drug Addiction Treatment Centre. 

107 


HCAL155/1999 

• The Hong Kong Housing Authority (HKHA) issued a Notice to 

Quit to Thai Muoi under section 19(1)(b) of the Housing Ordinance 

(the Ordinance) on the basis that clause 2(j) of the tenancy 

agreement had been violated. 

• Section 19(3) of the Ordinance provides: 

“No court shall have jurisdiction to hear any application for relief 

by or on behalf of a person whose lease has been terminated under 

subsection (1) in connection with such termination.” 

• Thai Muoi appealed against the decision of HKHA to the Tribunal 

in accordance with section 20(1) of the Ordinance. 

• The appeal was dismissed by the Tribunal on 19 August 1999. 

• Thai Muoi applied for judicial review. 

• Whether the decision of HKHA to issue the Notice to Quit is not 

open to judicial review because section 19(3) of the Ordinance 

ousts the jurisdiction of the court? 

108


HCAL155/1999 


“The power of the court to review the decisions of the executive 

authorities and the administrative tribunals on question of law is well 

established. There used to be a distinction between errors of law that 

went to jurisdiction and errors of law that did not. Such distinction has 

become blur as the principles develop in judicial review cases. 

In Anisminic v. Foreign Compensation Commission [1969] 2 AC 147, 

it was held that as respects administrative tribunals and authorities, the 

old distinction between errors of law that went to jurisdiction and 

errors of law that did not, was for practical purposes abolished. Any 

errors of law that could be shown to have been made by them in the 

course of reaching their decision on matters of fact or of 

administrative policy would result in their having asked themselves 

the wrong question with the result that the decision they reached 


HCAL155/1999 


“The decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation 

Commission [1969] 2 A.C. 147 shows that, when words in a statute oust the power 

of the High Court to review decisions of an inferior tribunal by certiorari, they must 

be construed strictly, and that they will not have the effect of ousting that power if 

the inferior tribunal has acted without jurisdiction or if ‘it has done or failed to do 

something in the course of the inquiry which is of such a nature that its decision is a 

nullity’: per Lord Reid at p. 171. But if the inferior tribunal has merely made an 

error of law which does not affect its jurisdiction, and if its decision is not a nullity 

for some reason such as breach of the rules of natural justice, then the ouster will be 

effective. In Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 

56, 70, Lord Denning M.R. suggested that the distinction between an error of law 

which affected jurisdiction and one which did not should now be "discarded." 

Their Lordships do not accept that suggestion. 

…the error or errors did not affect the jurisdiction of the Industrial Court and their 

Lordships are therefore of opinion that section 29 (3) (a) effectively ousted the 

jurisdiction of the High Court to quash the decision by certiorari proceedings. “ 

would be a nullity.” 109 

110 


HCAL155/1999 


“…clauses which seek to oust the power of the court to review the 

decisions of a lower court or an administrative tribunal on question of 

law are never given effect to save in the most exceptional 

circumstances. 

In R v. Hull University Visitor, Ex parte Page [1993] AC 682, …Lord 

Browne-Wilkinson … said…”…in general any error of law made by 

an administrative tribunal or inferior court in reaching its decision 

can be quashed for error of law." 

In South East Asia Fire Brick SDN v. Non-Metallic Mineral Products 

Manufacturing Employees Union and others [1981] AC 363….The 

case of course concerns the decision of a court and not that of a 

statutory body or an administrative tribunal….” 


HCAL155/1999 


“…In any state with separation of the powers, the right of 

the court to supervise the decisions of the executive is 

always zealously guarded against… 

In any event I am not persuaded that section 19(3) of the 

Ordinance is clear enough to override the presumption of 

the legislative intent that decisions by the executive, the 

tribunal or other official are justiciable by way of judicial 

review.” 

111 

112

Gurung Bahadur v Director of Immigration 

[2001] 3 HKLRD 225 

• B comes from Nepal. He is a national of that state. He came to Hong 

Kong as a visitor to be with his wife. 

• A few days later he applied to the Director for a change of his immigrant 

status, seeking to remain in Hong Kong as a dependent of his wife. 

• The Director refused the application on the basis that he was not satisfied 

that the Applicant's wife, the sponsor, was capable of supporting B to a 

reasonable standard of living nor was he satisfied that B was a genuine 

dependent of his wife. 

• B chose to seek redress by making an objection to the Chief Executive in 

Council in terms of section 53 of the Immigration Ordinance. 

• B was advised that the Chief Executive in Council had confirmed the 

decision of the Director. B obtained leave ex parte to bring judicial 

review proceedings against both the Director of Immigration ('the 

Director') and the Chief Executive in Council. 

• B sought to quash a decision of the Chief Executive in terms of which the 

Chief Executive confirmed the Director's decision despite an objection 

made by the Applicant pursuant to section 53 of the Immigration 


[2001] 3 HKLRD 225 

• The Director of Immigration sought to set aside the granting of leave in 

so far as it related to the Chief Executive on the basis that section 64(3) 

of the Interpretation and General Clauses Ordinance bars a person who 

has elected to appeal or submit an objection to the Chief Executive from 

thereafter seeking to judicially review the Chief Executive's decision in 

the matter: 

“The conferring by any Ordinance of a right of appeal or objection to the 

Chief Executive in Council shall not prevent any person from applying to 

the High Court for an order of mandamus, certiorari, prohibition, 

injunction or any other order, instead of appealing or making an objection 

to the Chief Executive in Council, where an application for such an order 

would lie, but no proceedings by way of mandamus, certiorari, 

prohibition, injunction or other order shall be taken against the Chief 

Executive in Council in respect of any such appeal or objection to the 

Chief Executive in Council or any proceedings connected therewith.” 

Ordinance. 113 

114 


[2001] 3 HKLRD 225 


“…section 64(3)…are strong words…As such, I am of the view that if 

section 64(3) is in any way to be subject to the supervisory 

jurisdiction of the High Court it can only be upon the principles first 

enunciated in Anisminic Ltd v. Foreign Compensation Commission 

[1969] 1 ALL ER 208… 

Accordingly, an administrative tribunal (such as the Chief Executive 

in Council determining an appeal) is protected from the supervisory 

scrutiny of the High Court provided it acts and makes its 

determinations within what Lord Wilberforce called its 'permitted 

field'. If, however, it exceeds its jurisdiction in the ways 

contemplated by Lord Reid then, by stepping outside its 'jurisdiction' 

or 'permitted field' it has made an erroneous inquiry and one which is 

a nullity.” 

115 


[2001] 3 HKLRD 225 


“…Anisminic has been criticised as being in disobedience of the 

express instructions of the legislature but it is clear that it remains 

good law, the jurisprudential rationale being that if a tribunal could 

become a law unto itself, it would move dangerously towards 

dictatorship, the personalities presiding on the tribunal, empowered 

with an uncontrollable jurisdiction, becoming the sole judges of the 

validity of their own decisions. 

In my judgment, therefore, it is now settled law, applicable in the 

courts of Hong Kong, that in respect of what I will call 'complete 

ouster' provisions, such as the one appearing in section 64(3), the 

Anisminic principles will be applied.“ 

116


Approach of Hong Kong courts: 

Positive (Thai Muoi; Bahadur) 

Conditional (?) 

Negative (Chang Wing Tai; Spruce) 

 

4. Administrative decisions made on the basis 

of a legal error 

 


If every error of law goes to 

jurisdiction… 

then… 

every error of law will be 

reviewable by the Court 

117 

118 


4. Administrative decisions made on the basis of a 

legal error 


4. Administrative decisions made on the basis of a 

legal error 



then… 

there is no longer any need to keep 

the rule on 

error of law on the face of record 

 



then… 

statutory interpretation will be 

CRITICAL 

119 

120

More on statutory 

interpretation 

 

• Definition and Interpretation Clauses in the Specific 

Statute 

Section 2 

• Interpretation and General Clauses Ordinance 

(Cap. 1) 

Section 2: 

Save where the contrary intention appears … 

Section 3: 

Words and expression 

121 

122 

Statutory Interpretation 



(Cap. 1) 

Section 5: 

Where any word or expression is defined in any 

Ordinance such definition shall extend to the 

grammatical variations and cognate expressions of such 

word or expression. 

Section 7: 

Masculine gender includes the feminine gender; 

singular includes the plural and plural includes the 

singular. 


(Cap. 1) 

Section 10B: 

Where a comparison of the authentic texts (Chinese 

and English) of an Ordinance discloses a difference of 

meaning which the rules of statutory interpretation 

ordinarily applicable do not resolve, the meaning which 

best reconciles the texts, having regard to the object 

and purposes of the Ordinance, shall be adopted. 

123 124



(Cap. 1) 

Section 19: 

An Ordinance shall be deemed to be remedial and shall 

receive such fair, large and liberal construction and 

interpretation as will best ensure the attainment of the 

object of the Ordinance according to its true intent, 

meaning and spirit. 


• Interpretation and General Clauses Ordinance (Cap. 1) 

Section 38: 

Where any Ordinance confers power upon any person to- (a) 

make any subsidiary legislation; (b) make any instrument; or (c) 

exercise any power, and the Ordinance conferring the power 

prescribes conditions, subject to the observance, performance or 

existence of which any such power may be exercised, such 

conditions shall be presumed to have been duly fulfilled if in the 

subsidiary legislation, the instrument or the document 

evidencing the exercise of the power there is a statement that the 

subsidiary legislation or instrument is made, or the power 

exercised, in exercise of, or in pursuance of, the power conferred 

by such Ordinance, or a statement to the like effect. 

126 

125 126 




(Cap. 1) 

Section 39: 

Where any Ordinance confers any power or imposes 

any duty, then the power may be exercised and the duty 

shall be performed from time to time as occasion 

requires. 


Section 40: 

Where any Ordinance confers upon any person power to do or 

enforce the doing of any act or thing, all such powers shall be 

deemed to be also conferred as are reasonably necessary to 

enable the person to do or enforce the doing of the act or thing. 

Where any Ordinance confers power to grant a licence, 

Government lease, permit, authority, approval or exemption, 

such power shall include power to impose reasonable 

conditions subject to which such licence, Government lease, 

permit, authority, approval or exemption may be granted. Where 

any Ordinance confers power to approve any person or thing, 

such power shall include power to withdraw approval. 

127 128




(Cap. 1) 

Section 41: 

Where any Ordinance confers power upon any person 

to issue, grant, give or renew any licence, Government 

lease, authority, approval, exemption or permit, the 

person so empowered shall have a discretion either to 

issue, grant, give or renew or to refuse to issue, grant, 

give or renew such licence, Government lease, 

authority, approval, exemption or permit. 


Section 43: 

Where any Ordinance confers powers or imposes duties upon a 

specified public officer, such public officer may delegate any 

other public officer or the person for the time being holding any 

office designated by him to exercise such powers or perform 

such duties on his behalf, and thereupon, or from the date 

specified by such specified public officer, the person delegated 

shall have and may exercise such powers and perform such 

duties. However, this section does not authorize a specified 

public officer to delegate any person to make subsidiary 

legislation or to hear any appeal. 

129 130 


Common law principles: 

• Rule of literal construction: plain meaning 

• Golden Rule: If the adherence to the literal wording of 

the statute would create an absurdity, the wording may 

be modified to the extent necessary to avoid that 

absurdity 

• Mischief Rule: Consider for what “mischief” or 

problem the statute was designed to provide a remedy 

or where the meaning of the statute is uncertain to 

adopt as afar as possible an interpretation consistent 

with the object of the statute (Purposive Approach, s. 

19, Cap. 1) 

131 


• Use of legislative materials: Pepper v Hart [1993] AC 

593 

(a) Legislation is ambiguous or obscure or led to 

absurdity; 

(b) the material relied upon consisted of one or more 

statements by a minister or other promoter of the Bill 

together if necessary to understand such statements and 

their effect; 

(c) the statements relied upon are clear. 

132

Statutory interpretation 

Lo Siu Lan and Another v. HK Housing Authority 

FACV10/2005 

Literal approach 

HK Housing Authority 

Reviewed 

the 

decision 

Originally 

owned the retail 

and car parking 

facilities in 

public housing 

estates 

Sold the retail and car 

parking facilities in 

public housing estates 

To be listed in 

Applied for 

judicial review 

Madam Lo Siu Lan 

Living in 

public housing estates 

Hong Kong 

Stock Exchange 

133 134 


FACV10/2005 

Section 4(1) of the Housing Ordinance 

provides that: 

“The Authority shall exercise its powers and 

discharge its duties under this Ordinance so as 

to secure the provision of housing and such 

amenities ancillary thereto as the Authority 

thinks fit for such kinds or classes of persons 

as the Authority may, subject to the approval 

of the Chief Executive, determine.” 

135 


FACV10/2005 

Decision of the Court of Final Appeal: 

“To secure the provision of the facilities does not mean that the 

Authority must itself be the direct provider (which would involve 

control by the Authority) or that, having been the direct provider for 

some years, the Authority may not cease to be the direct provider 

(and so relinquish control). There is no basis for suggesting that the 

statute contains any provision, either express or implied, that tenants 

of public rental housing have any statutory right to the continued 

retention and control by the Authority of the retail and carpark 

facilities, while the tenants are still using the facilities. The 

Authority secures the provision of the facilities so long as the 

facilities are available, although they are provided not by the 

Authority but by Link REIT, a third party over whom the Authority 

has no control.” 

136

KAM WING TRAVEL GROUP LTD v. SECRETARY 

FOR JUSTICE for COMMISSIONER FOR 

TRANSPORT HCAL000105/2008 

• K, a public bus service provider, has the passenger 

service licence of a bus it owns cancelled by the 

Commissioner for Transport. K applied to the 

Commissioner for a review of his decision by a Transport 

Tribunal but was a day late after the 21-day period. 

• The Commissioner refused to entertain the application on 

the ground that it was made out of time. 

• Does the Commissioner have the power to extend the 

time for making an application for review or otherwise 

to entertain a late application for review? 




Section 33(1) of the Road Traffic Ordinance: 

“….where the Commissioner…. cancels, suspends or varies 

a passenger service licence under section 31, the applicant 

or the holder of the licence may, within 21 days of being 

notified of the decision of the Commissioner, apply in 

writing to the Commissioner for a review of the 

Commissioner's decision by a Transport Tribunal.” 

137 

138 




Section 72 of the Interpretation and General Clauses 

Ordinance (Cap 1): 

“Where in any Ordinance a time is prescribed for doing any 

act or taking any proceeding and power is given to a court, 

public body, public officer or other authority to extend such 

time, then the power may be exercised by the court, public 

body, public officer or other authority although the 

application for the same is not made until after the 

expiration of the time prescribed.” 




The Court of First Instance decided that: 

“…s. 72 does not assist the applicant for the simple 

reason that the Ordinance simply does not give any 

power to the Commissioner to extend the time 

prescribed for making an application for review. 

In the circumstances, the Commissioner’s decisions 

not to entertain the applications for review cannot 

be faulted.” 

139 

140

Woomera Company Ltd v. Commissioner for 

Transport HCAL 146/2008 

• W did not apply to assign the two marks to vehicles within 

the 12-month period. The application for assignment of the 

marks owned by W was not made until 14 days late. On 

that date W was informed by the Transport Department that 

the marks had expired, and that they could not be assigned 

to the applicant’s vehicles. 

• W applied for extension of time to have the marks assigned 

but was refused by the Commissioner. 

• Any discretion for the Commissioner to allow extension 

of time? Had the Commissioner exercised the discretion? 



Road Traffic (Registration and Licensing of Vehicles) Regulations 

Cap 374 Sub Leg E, (the Regulations): 

Regulation 9 provides that: 

“(2) A person to whom a special registration mark has been allocated 

under subregulation (1) shall, within 12 months after the date of its 

allocation, apply to the Commissioner…for assignment of the special 

registration …” 

Regulation 12I furthers provides that: 

“(6) If, for whatever cause, a personalized registration mark allocated 

under this regulation is not assigned to a motor vehicle within 12 

months after the date of its allocation, the Commissioner may, 

without notice to the personalized registration mark holder, cancel 

that allocation and reallocate the personalized registration mark.” 

141 

142 




“The error made by the Commissioner is to 

assume that the word “shall” is always 

mandatory. It is right that on its face the word 

“shall” implies a mandatory requirement. But 

that is not always the proper interpretation. 

The word “shall” may also be interpreted as 

merely giving permission”… 



v. 

Purposive approach 

143 

144

Town Planning Board v. 

Society for Protection of the Harbour Ltd FACV 14/2003 

Protection of the Harbour Ordinance: presumption 

against reclamation in the harbour; to rebut?! 

compulsory 

material 

consideration ! 

overriding 

public need ! 

145 



• The Secretary for Planning and Lands, under the 

delegated authority of the Chief Executive and pursuant 

to Town Planning Ordinance (TPO), directed the Town 

Planning Board to prepare a new draft outline zoning 

plan (OZP) for the Wan Chai Development Phase II 

project. 

• The Board decided that the OZP as amended is suitable 

for submission to the Chief Executive in Council for 

approval under section 8 of the TPO. 

• Society for Protection of the Harbour commenced the 

judicial review action to challenge the decision of the 

Board on the grounds that the Board has made an error in 

law in reaching the decisions in that it had misinterpreted 

the section 3 of The Protection of Harbour Ordinance 

(PHO) and had failed to apply the correct legal 

principles. 

146 



Section 3 of the Protection of the Harbour 

Ordinance provides that: 

"(1)The harbour is to be protected and preserved as 

a special public asset and a natural heritage of 

Hong Kong people, and for that purpose there shall 

be a presumption against reclamation in the 

harbour. 

(2) All public officers and public bodies shall have 

regard to the principle stated in subsection(1) for 

guidance in the exercise of any powers vested in 

them.” 



Long Title of the Protection of the Harbour 

Ordinance provides that: 

“An Ordinance to protect and preserve the 

harbour by establishing a presumption against 

reclamation in the harbour.” 

147 

148




“In applying a purposive approach to interpretation, the legislative purpose must 

first be identified. It is sometimes not easy to discern the purpose of a statute or a 

particular provision. In the present case, there is no difficulty in identifying the 

legislative purpose. It is referred to in the preamble to the Ordinance and is spelt out 

in s 3(1) itself. The purpose is to make sure that the harbour will be so 

protected…There must be protection, that is, it must be kept from harm, defended 

and guarded. And there must be not merely protection. 

Reclamation would result in permanent destruction and irreversible loss of what 

should be protected and preserved under the statutory principle. The statutory 

presumption was therefore enacted to implement the principle of protection and 

preservation. It is a legal concept and is a means or method for achieving protection 

and preservation. Its legal effect is not to impose an absolute bar against any 

reclamation. It does not prohibit reclamation altogether. As a presumption, it is 

capable of being rebutted.” 




“The critical question is: as a matter of statutory interpretation, what should be regarded as 

sufficient to rebut it? 

This question of interpretation is to be approached, bearing in mind that considerable 

reclamation has already taken place and that the need to protect and preserve the harbour is 

therefore all the more important and compelling. 

Having regard to the strong and vigorous statutory principle of protection and preservation, 

it would plainly be wrong to interpret the presumption against reclamation merely as a 

compulsory material consideration to which the decision-maker must pay due regard in 

undertaking a weighing exercise for the purpose of deciding whether the public benefits of 

the proposed reclamation would outweigh the need to preserve the harbour. This was 

essentially the Board's approach and it must be rejected. On this approach, the presumption 

against reclamation is relegated to no more than a planning consideration required by statute 

to be taken into account. And the strong public need to prevent permanent destruction and 

irreversible loss of the harbour is demoted to the same level as any other town planning 

need. Such an approach is clearly inconsistent with the statutory principle of protection and 

preservation and the legislative intent behind it.” 

149 

150 




“In order to implement the strong and vigorous statutory principle 

of protection and preservation, the presumption must be 

interpreted in such a way that it can only be rebutted by 

establishing an overriding public need for reclamation. This can 

conveniently be referred to as "the overriding public need test". 

The statute, in conferring on the harbour a unique legal status, 

recognises the strong public need to protect and preserve it. The 

statute envisages that irreversible loss to the extent of the 

reclamation would only be justified where there is a much stronger 

public need to override the statutory principle of protection and 

preservation.” 

151 




“A need should only be regarded as overriding if it is a compelling and present need. The 

need has to be compelling so that it has the requisite force to prevail over the strong public 

need for protection and preservation. And it has to be a present need in the sense that taking 

into account the time scale of planning exercises, the need would arise within a definite and 

reasonable time frame. If the need would not arise over such a time frame, it would not have 

the strength to displace the presumption. 

A compelling and present need goes far beyond something which is "nice to have", 

desirable, preferable or beneficial. But on the other hand, it would be going much too far to 

describe it as something in the nature of the last resort, or something which the public 

cannot do without. 

Where there is a reasonable alternative to reclamation, an overriding need for 

reclamation would not be made out. There would be no such overriding need since the 

need could be met by the alternative means. 

…It would obviously not be sufficient for the decision-maker to incant the test and assert 

that the test has been met. This would only be paying lip service to the test. There must be 

materials before the decision-maker to satisfy him that there is an overriding public need for 

reclamation so as to rebut the presumption against it. To enable him to be so satisfied, the 

materials in the case in question must be cogent and convincing.” 

152

Ho Choi Wan and Another v. Housing Authority 

FACV No. 1 of 2005 



• The rents chargeable for public housing are assessed by the 

Housing Authority with affordability being an important factor. 

One of the principal means used by the Housing Authority to 

calculate affordability of rents over the years has been the use of 

what is known as the median rent-to-income ratio (“MRIR”). 

• For the 20 years prior to the 1997 amendments, public housing 

rents had been consistently reviewed and revised every 2 years. 

The reviews and revisions always resulted in increases in the rent 

charged. 

• Since 1998, the Housing Authority in view of the economic 

downturn at the time made several decisions to waive rent 

increases. Since the amendments to the Ordinance in 1997, there 

have been no rent increases. 

• Since 1999, the Housing Authority also made several decisions to 

defer rent reviews for a total of 340,609 flats in 128 estates. 

153 

154 



Section 16 of the Housing Ordinance provides that: 

“(1) Subject to this Ordinance, the Authority may – 

(1A)(a) Any determination of variation of rent after the 

commencement by the Authority under subsection (1)(a) in 

respect of any class (whether determined by the nature of the 

land or status of the lessee) of land in an estate for residential 

purposes shall only take effect at least 3 years from the date 

on which any immediately preceding determination in 

respect of the same such class of land came into effect. 

(b) The rent determined under paragraph (a) in respect of any 

such class of land shall be of such amount that the median 

rent to income ratio in respect of all classes of land in all 

estates let for residential purposes, as determined by the 

Authority, shall not exceed 10%. 

155 



Decision of the Court of Final Appeal on the 1 st 

Issue: 

“ ’A determination of variation of rent’ means a 

decision to vary rents. It does not include a 

decision of no variation of rent. ‘Variation of rent’ 

must involve some change to the rent and a 

decision not to make any change simply cannot be 

a determination of ’variation of rent’. Further, in 

the central provision, a determination of variation is 

something which ‘takes effect’ on a date which is 

subject to the frequency limitation. A decision to 

leave rents unchanged does not involve a date when 

that decision ‘takes effect’”. 

156



Decision of the Court of First Instance on the 2 nd Issue: 

“…the context of a statute is not limited to its text…. In 

short, ‘context’ can include, among other things, the 

mischief which the statute is intended to remedy. In fact, 

this contention appears to be undisputed by the respondent. 

….the term ‘mischief’, as used in statutory interpretation, 

has two different meanings. One meaning is identified … 

as ‘a mischief on the ground’, that is, a factual condition 

that is causing concern: ‘social mischief’.“ 

157 



Decision of the Court of First Instance on the 2 nd Issue: 

“…it is clear that the Legislative Council intended s. 16(1A)(a) to enhance the 

tenants’ protection by lengthening the times between which rent reviews can take 

effect. In doing so, the Legislative Council must have assumed the respondent 

would continue its consistent practice of reviewing rent regularly. To put it in 

another way, in making the 1997 amendment (especially in enacting s. 16(1A)(a)) 

in such factual setting, the statute must by necessary implication have intended the 

respondent should continue with such practice, albeit the cycle should from hence 

on be 3 years instead of 2. 

If s. 16(1A)(a) by itself (and read in the factual and/or social setting in which it 

was introduced) is somehow still insufficient to show, by necessary implication, it 

intends that the respondent is under a duty to review rent regularly, s. 16(1A)(a), 

when read together with s. 16(1A)(b), should be sufficient for this purpose. It is 

inconceivable that in (a) lengthening the rent review cycle, and (b) placing a 

maximum on the amount of rent which the respondent may determine to increase, 

the Legislative Council somehow intended that the respondent be free to in effect 

get away from such restriction by departing from its past practice.” 

158 



Decision of the majority of the Court of Final Appeal on the 2 nd Issue: 

“…the appellant submits that the Authority is under a statutory duty to review and 

vary rents to a level that accords with the 10% MRIR. …It is not suggested by the 

appellant that the duty contended for is an express duty imposed by the statute. 

Plainly, it is not. Can the duty be implied? The relevant statutory provisions do 

not provide any basis for such implication and the duty contended for must be 

rejected. Section 16(1)(a), which is relied on, confers the power to let. Read in the 

context of the object laid down in s. 4(1), this power must be exercised by the 

Authority in a manner which is consistent with the provision of affordable 

housing. These provisions were on the statute book prior to the enactment of the 

central provision. Neither s. 4(1) nor s. 16(1)(a) refer to, let alone define, what 

amounts to affordable housing. Under these provisions, the question of 

affordability is a matter for the judgment of the Authority. The central provision in 

s. 16(1A) enacted in 1997 does not take the matter further. The 10% MRIR 

limitation provided for therein does not purport to be a statutory definition of 

affordability. It is introduced as a limitation which must be adhered to by the 

Authority for any determination of variation of rent if one is made.. 

159 



Decision of Justice Bokhary PJ of the Court of Final Appeal on 

the 2 nd Issue: 

“Our constitution the Basic Law speaks of the ICESCR in the same 

breath as it does of the International Covenant on Civil and Political 

Rights (“the ICCPR”)…. 

..Hong Kong may not have legislated for economic, social and 

cultural rights in their entirety. But as far as housing is concerned, we 

have the Housing Ordinance. The context in which a statute is to be 

construed means …its context in the “widest sense”. If it were 

necessary to do so in order to establish that the Authority is dutybound 

to provide affordable housing, it might well be possible to 

pray the ICESCR powerfully in aid of construing the Housing 

Ordinance to impose that duty. “ 

160



Decision of Justice Bokhary PJ of the Court of Final Appeal on the 2 nd 

Issue: 

“The limitation which paragraph (a) places on the frequency of variations 

of rent is obviously meant to help public housing residents in times of 

rising income. For in such times any variation would naturally be an 

increase. It is true that on a literal reading paragraph (a) would limit the 

frequency of any variation, whether by way of reduction or by way of 

increase. 

…But …paragraph (a) should not be read to inhibit rent reductions in 

times of falling income. I hold that s.16(1A)(a) does not in any way limit 

the frequency of rent reductions. The Authority can - and should - reduce 

rent as frequently as practicable to carry out its duty to provide 

affordable housing. 

…In order to comply with its statutory duty to provide affordable housing 

to households that cannot afford private sector housing, the Authority must, 

in my judgment, reduce public housing rent to the extent necessary for 

bringing the median rent to income ratio down to a level that does not 

exceed the 10% cap.“ 

161 



v. 

Purposive approach 

v. 

“Expert” approach 

162 

Shiu Wing Steel Ltd v. Director of Environmental 

Protection FACV No. 28 of 2005 

• The Hong Kong Airport Authority (“HKAA”) 

proposed to construct a permanent air fuel farm 

(“PAFF”) for the storage of aviation fuel at a site. 

• Shui Wing Steel Ltd. (“SWS) operates a steel mill 

on a site adjacent to the site proposed for the 

PAFF. Within the steel mill, extremely hot 

processes are carried out and hot steel is stored. 

 



Environmental Impact Assessment Ordinance: 

s.5: environmental impact assessment study brief 

(SB) 

s. 6: environmental impact assessment report (EIA 

report) to comply with SB and TM 

s.7: public inspection of EIA report 

s. 8: approval of EIA report 

s. 10: environment permit 

s.16: Technical Memorandum (TM)



Issue: 

whether the decisions of the Director to approve the 

EIR report and to grant an environmental permit 

were illegal on the ground that the report did not 

contain a quantitative risk assessment (“QRA”) 

which embraced the scenario of a catastrophic 

failure of a fuel storage tank with an instantaneous 

or almost instantaneous loss of a 100% of the tank’s 

contents and that was a wrong interpretation of the 

technical memorandum (“TM”) and the SB as a 

matter of law? 

 



Clause 3.3.10.1. of the SB provides that: 

“The risk to the life…shall be assessed. The 

Applicant shall follow the criteria for evaluating 

hazard to life as stated in Annexes 4 and 22 of the 

TM in conducting hazard assessment and include 

the following in the assessment: 

…(iii) comparison of individual and societal risks 

with the Criteria for Evaluating Hazard to Life 

stipulated in Annex 4 of the TM… 

 



Section 4.3.1(c) of the TM requires that the 

assessment methodology employed in 

assessing hazards to human life should be 

capable of : 

“Impact Evaluation: an evaluation of the 

anticipated changes and effects shall be made 

with respect to the criteria described in 

Annexes 4 … 



Clause 2.1 of Annex 4 provides that: 

“[t]he criterion for hazard to human life is to 

meet the Risk Guidelines, as shown in 

Figure 1”.

Figure 1, 

Annex 4 of 

the TM: 



Decision of the CFA: 

“When the court construes language which 

affects legal rights and duties, it is constrained 

to arrive at a single meaning to define those 

rights and duties. That meaning may apply to 

one or more sets of facts but there can be only 

one meaning of the language so construed…” 

 

 




“If the Director, in approving an EIA report, is 

found to have misunderstood the requirements of 

the SB and the TM, his misunderstanding may 

suggest error in his decision that the requirements 

have been met …But the question of the 

EIA report’s meeting the requirements of the SB 

and TM is for the Court to determine. It is a 

question of construction, albeit the TM and the SB 

are to be construed not as legislative instruments 

but as they would be understood by an expert risk 

assessor.” 

 




“The specific and mathematical expression of 

accident frequency in Figure 1 shows that, for the 

purpose of assessing the risk to human life, a QRA 

cannot be limited to risks that can be predicted, 

expected or anticipated… 

…the methodology employed must be capable of 

“predicting” environmental changes and effects 

which are “anticipated” as mere possibilities, 

albeit possibilities with serious consequences to 

human life if they should eventuate. 

…the Director's decisions…must be quashed.”

Chu Yee Wah v. Director of Environmental Protection 

HCAL 9/2010, CACV 84/2011 

Hong Kong-Zhuhai-Macau Bridge! 

173 


HCAL 9/2010, CACV 84/2011 

• The Highways Department (“HD”) is the project proponent of the 

Hong Kong section of the proposed Hong Kong-Zhuhai-Macau 

Bridge project. The respective study briefs were issued in November 

2003, December 2007 and April 2008. 

• The EIA reports were delivered to the Director on 15 June 2009. The 

EIA Report for the TM-CLK Link ("the TM-CLK Link EIA 

Report") was delivered to the Director of Environment in August 

2009. The Director advised the HD that the reports were suitable for 

public inspection on 13 August 2009. 

• The Director approved the EIA Reports on 23 October 2009. 

• The Director issued environmental permits on 4 November 2009. 

• Chu challenged the Director’s decision to approve the EIA reports 

and his subsequent decisions to issue environment permits. 

174 


HCAL 9/2010, CACV 84/2011 


“…two distinct approaches to the control of pollution. 

One approach…is to impose limits on the quantities of 

polluting matter which a given activity may emit. The 

other approach, …is to provide a framework for 

specific directives imposing quantitative limits on the 

extent to which the environment may be polluted. A 

specific regulation… gives effect to the former 

approach by requiring applicants for relevant permits to 

satisfy the Environment Agency that they are using the 

best available techniques calculated to prevent, or at 

least to minimise, the emission of polluting matter 

irrespective of whether the emission would cause a 

breach of an overall pollution limit…” 

175 


HCAL 9/2010, CACV 84/2011 


“In my opinion, the EIAO is to be understood as incorporating 

the two approaches…and is not to be construed as if the only 

relevant yardstick is whether particular benchmarks are 

exceeded. If environmental protection is to be meaningful, it 

seems to me that it must aim to minimise the environmental 

impact of any project and, in the case of air quality, by 

minimising the amount of pollutants released into the 

atmosphere. It would be contrary to the purpose of the EIAO, 

which recognises that the environment is worthy of protection, if 

the statutory scheme in this jurisdiction were to be construed as if 

it treated the environment like a bucket into which waste may be 

deposited until it is full. That approach does not protect the 

environment. Instead, protecting the environment means 

endeavouring to minimise the environmental impacts of a 

proposed project.” 

176


HCAL 9/2010, CACV 84/2011 


“The first issue turns on the construction of the TM and 

SBs. The approach to their construction is governed by 

Shiu Wing Steel, which is authority that the construction 

of the TM and SBs, 

"… is a question of law for the court if the Director’s 

decision is being judicially reviewed. …” 

"… the question of the EIA report’s meeting the 

requirements of the SB and TM is for the Court to 

determine. It is a question of construction, albeit the TM 

and the SB are to be construed not as legislative 

instruments but as they would be understood by an 

expert risk assessor. …” 

as well as in a "practical down-to-earth way"[24].” 

177 


HCAL 9/2010, CACV 84/2011 


“I agree with the learned judge the EIAO 

incorporates both of the two approaches…I am 

further of the view that the duty to minimize 

pollution would not depend on the extent of the 

pollution footprint of a designated project. Whatever 

the footprint of a project ((90%-80%) or 

(90%-30%)) a proponent must minimize pollution. 

Furthermore, unlike the learned judge, I do not 

believe it is necessary to construe the TM or the SB 

as requiring a stand-alone assessment in order that 

the Director can decide what mitigating measures 

should be adopted.” 

178 


HCAL 9/2010, CACV 84/2011 

Other decisions of the Director challenged in the case 

but confirmed by the judges in CFI and CA): 

• the TM and SBs require the EIA Reports to explain how 

the input data used in the PATH model used in the 

assessment of air quality was compiled and verified and 

to disclose the results generated by it but this is not done 

in the EIA Reports. 

• the assessment year selected does not represent the 

reasonably worst-case scenario for background air 

quality as required by the SBs and has failed to 

demonstrate how the AQOs will not be breached as a 

result of the HKZM projects going into operation before 

2031. 

• the EIA Reports failed properly to assess ozone as 

required by the TM and SBs. 

179 


HCAL 9/2010, CACV 84/2011 

Other decisions of the Director challenged in the case 

but confirmed by the judges in CFI and CA): 

• the EIA Reports failed to assess sulphur dioxide (SO 2 ) as 

required by the TM and SBs. 

• the EIA Reports do not provide a quantitative or 

qualitative assessment of the projects’ impact on public 

health as required by the TM and that the omission of 

such an assessment means that the Director could not 

perform her statutory duty under the EIAO. 

• the EIA Reports should have but failed to assess the 

health risk posed by pollutants outside the AQOs, such as 

toxic air pollutants (TAPs) and fine suspended 

particulates (PM 2.5 ) and hence, the Director did not 

perform her statutory duty under the EIAO. 

180

Medical Council of Hong Kong v. 

David Chow Siu Shek FACV No. 3 of 2000 

• Dr. Chow, a registered medical practitioner, was convicted in the 

High Court on two counts of conspiracy to defraud. He was 

sentenced to two years' imprisonment. 

• The Medicial Council ordered that Dr Chow's name be removed 

from the Register for a period of three years under s.21(1)(ii) of 

the Medical Registration Ordinance: 

“If…the Council is satisfied that any registered medical 

practitioner - 

(a) has been convicted in Hong Kong or elsewhere of any offence 

punishable with imprisonment;…the Council may, in its 

discretion (ii) order the name of the registered medical 

practitioner to be removed from the General Register for such 

period as it may think fit ... ” 

• Dr Chow pleaded guilty to 19 charges of failing to keep proper 

records of dangerous drugs, contrary to Dangerous Drug 

Ordinances for offecnes committed one day before the order for 

removal was made.” 

 



• Three years passed from the time when the order for removal took 

effect. Dr. Chow lodged a written application with the Council 

seeking the restoration of his name to the Register. 

• Section 25(3) of the Ordinance provides that: 

“Any person whose name has been removed from the General 

Register under the provisions of this Ordinance…may apply to the 

Council for the restoration of his name to the General Register and 

the Council in its absolute discretion and after such inquiry and 

subject to the submission of evidence that he has not been 

convicted in Hong Kong or elsewhere of any offence punishable 

with imprisonment and has not been guilty of misconduct in a 

professional respect while practising in Hong Kong or elsewhere 

and to such conditions, as it may consider desirable, may either 

allow or refuse the application, and if it allows the same, shall 

order the Registrar on payment by the applicant of the prescribed 

fee to restore the name of the applicant to the General Register, 

and thereupon the Registrar shall restore the name accordingly.” 

• The Medical Council refused the application. 

 



Justice Bokhary PJ: 

One: striking a balance to conflicting understandings of the 

provisions 

Two: interpretation in the context of other statutes in pari 

material 

Three: avoiding circularity 

Four: according meaning and substance to each provision 

Five: reluctance to find a radical change by a side-wind 

 



Justice Bokhary PJ: 

“I interpret ss 21(1)(ii) and 25(3) of the Medical Registration 

Ordinance as follows. First, I reject the notion of automatic 

entitlement to restoration. Secondly, I hold that all registered 

medical practitioners whose names have been removed from the 

register, including those whose names have been removed for a 

specified period only under s.21(1)(ii), are covered by s.25(3) which 

makes it relevant to restoration whether, quite apart from the matters 

which led to the removal of his name from the Register in the first 

place, the person seeking the same has otherwise ‘been convicted in 

Hong Kong or elsewhere of any offence punishable with 

imprisonment’ or has otherwise ‘been guilty of misconduct in a 

professional respect while practising in Hong Kong or elsewhere’.”

Readings 

• Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill, 

Hong Kong Administrative Law (Hong Kong: Lexis 

Nexis Butterworths, 2010), pp. 352-361 

• Excerpt from the judgment of Justice Bokhary PJ Lord 

Diplock in Medical Council of Hong Kong v. David 

Chow Siu Shek FACV No. 3 of 2000 

• Ivan Hare, “The Separation of Powers and Judicial 

Review for Error of Law,” in Forsyth C. and Hare I. 

(eds.) The Golden Metwand and the Crooked Cord, 

(Oxford; Clarendon Press, 1998) 

Reference 

• Criag, Administrative Law ( Sweet & Maxwell, 

6th edn, 2008), Chapter 14. 

• Wade & Forsyth, Administrative Law (Oxford 

University Press, 10th edn. 2009), pp. 211-229 

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Judicial Review & Law - Faculty of Law, The University of Hong Kong

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