fairly - Faculty of Law, The University of Hong Kong

Learning Outcomes 

Judicial Review & 

Procedural Fairness 

After attending this session, students should be 

able to: 

• explain the principles of natural justice 

• analyze whether the principles of natural justice 

have been infringed 

• reflect on the further development of procedural 

fairness 

Benny Y. T. Tai 

Associate Professor 

Faculty of Law 

University of Hong Kong 

1 

2 

Issues 

• What are the principles of natural justice? 

• Under what conditions will the principles of natural 

justice be applicable? 

• What is the legal test on bias? 

• What are the features of fair hearing? 

• What are the benefits from a duty to give reason? 

• Under what situation will fairness require reason be 

given? 

• What are the requirements of an adequate reason? 

• What is the relationship between the common law and 

statutory requirements on procedural fairness? 

• Under what situation will the principles of natural justice 

be not applicable? 

• How will the requirement of procedural fairness 

develop? 

Issues that court will consider 

in Judicial Review 

law 

as applied 

to the facts 

fairly 

3 

4

Council of Civil Service Unions v. Minister for the 

Civil Services [1985] A.C. 374, Lord Diplock 

“I have described the third head as ‘procedural 

impropriety’ rather than failure to observe basic 

rules of natural justice or failure to act with 

procedural fairness towards the person who will 

be affected by the decision. This is because 

susceptibility to judicial review under this head 

covers also failure by an administrative tribunal 

to observe procedural rules that are expressly 

laid down in the legislative instrument by which 

its jurisdiction is conferred, even where such 

failure does not involve any denial of natural 

justice.“ 

5 

R v. Home Secretary, ex parte Doody [1994] 1 AC 531, 

at 560, Lord Mustill 

“What does fairness required in the present case? My 

Lords, I think it unnecessary to refer by name or to quote 

from, any of the often-cited authorities in which the courts 

have explained what is essentially an intuitive judgment. 

They are far too well known. From them, I derive that (1) 

where an Act of Parliament confers an administrative 

power there is a presumption that it will be exercised in a 

manner which is fair in all the circumstances. (2) The 

standards of fairness are not immutable. They may change 

with the passage of time, both in the general and in their 

application to decisions of a particular type. (3) The 

principles of fairness are not to be applied by rote 

identically in every situation. What fairness demands is 

dependent on the context of the decision, and this is to be 

taken into account in all its aspects.“ 6 

R v. Home Secretary, ex parte Doody [1994] 1 AC 531, 

at 560, Lord Mustill 

“ (4) An essential feature of the context is the statute 

which creates the discretion, as regards both its language 

and the shape of the legal and administrative system 

within which the decision is taken. (5) Fairness will very 

often require that a person who may be adversely affected 

by the decision will have an opportunity to make 

representations on his own behalf either before the 

decision is taken with a view to producing a favourable 

result; or after it is taken, with a view to procuring its 

modification; or both. (6) Since the person affected 

usually cannot make worthwhile representations without 

knowing what factors may weigh against his interests 

fairness will very often require that he is informed of the 

gist of the case which he has to answer.“ 

7 

Leung Fuk Wah Oil v. Commissioner of Police 

CACV 2744/2001 

• Leung was a sergeant of the Hong Kong Police. He was in 

serious financial difficulties. He was charged with two 

disciplinary offences, pursuant to section 3(2)(e) of the 

Police (Discipline) Regulations for failing to be prudent 

in his financial affairs by incurring unmanageable size of 

debts whereby his efficiency as a police officer was 

impaired. 

• A disciplinary hearing took place in early 1999. A 

Superintendent was appointed as the appropriate Tribunal. 

Leung was found guilty of the offence on 28 March 1999. 

• The Tribunal then referred the punishment to a Senior 

Police Officer who imposed a penalty of reduction to the 

rank of police constable and dismissal from the force. 

• The Force Disciplinary Officer confirmed the finding of 

guilt and penalty. 

8


CACV 2744/2001 

• Leung then appealed to the Commissioner of Police. The 

Deputy Commissioner of Police exercising the delegated 

authority of the Commissioner dismissed the appeal. 

• Leung applied for judicial review to quash the decisions 

of the Tribunal, the Senior Police Officer and the Deputy 

Commissioner of Police on the ground that certain 

documents considered by the Deputy Commissioner 

were not disclosed to him. 

• Hartman J. dismissed the application in respect of the 

decisions of the Tribunal and the Senior Police Officer. 

However, he quashed the decision of the Deputy 

Commissioner. 

• Both Leung and the Commissioner appealed. 

9 


CACV 2744/2001 

Decision of the Court of Appeal: 

“Fairness requires the material to be disclosed so that the appellant 

may have a chance to respond to it.…the judge was right when he 

considered that the material needed to be disclosed as a matter of 

fairness…The real question in this appeal is whether the nondisclosure 

vitiates the decision of the Commissioner and requires it 

to be quashed. 

…Having considered all the circumstances of this case, it is 

abundantly clear that the disclosure of the new documents to Mr. 

Leung would not have made the slightest difference to his petition 

to the Commissioner… 

Judicial review is a discretionary remedy. If the breach of the 

principle of fairness does not produce a substantial prejudice to 

the applicant, the court is bound to take this into account in 

deciding whether relief should be given. This is consistent with the 

concept that the court should not substitute its own decision for that 

of the decision-maker.“ 10 

ULTRA VIRES & 


Judicial Review and Procedural Fairness 

Three rules of natural justice (duty to act 

fairly) 

• The First Rule: Right to Unbiased Decision 

• The Second Rule: Right to Fair Hearing 

• The Third Rule: Right to reason 

 

11 

12


Right to Unbiased 

Decision 

 

Right to Fair Hearing 

 

Right to reason 

 

Before the decision is 

made 

During the making of 

the decision 

After the decision 

is made 

Michael Rowse 

v. 

Secretary for the Civil Service 

and Others 

HCAL 41/2007 

13 

14 

Background 

• After SARS in 2003, the Chief Executive 

announced an economic relaunch campaign. 

• Michael Morse (MR), Director-General of 

Investment Promotion, head of Invest HK 

acted as the Secretary of Economic Relaunch 

Working Group (ERWG) and Economic 

Relaunch Strategy Group (ERSG). 

• HK$1 billion was budgeted under the control 

of Invest HK. 

Background 

• In June 2003, MR was approached by Mr James 

Thompson, Chairman of the American Chamber 

of Commerce in Hong Kong. 

• Mr Thompson proposed an international 

entertainment festival should be held. 

• In early July 2003, AmCham made a formal 

presentation to ERWG; the festival was to consist 

of a number of pop concerts featuring 

internationally known actors. 

• The ERWG approved AmCham‘s proposal in 

principle subject to Invest HK‘s scrutiny of, and 

satisfaction with, AmCham‘s detailed budget. 

15 

16

Background 

• Invest HK reviewed the proposed budget. 

• The budget was very roughly drawn, especially in 

respect of ‘talent‘ costs which were estimated to 

make up some 70% of the budget. 

• Performers were listed; no negotiations had been 

concluded; the list was aspirational and the costs 

were broadly indicative. 

• The ERWG prepared to work with the initial 

proposed budget and approved a maximum of HK 

$100 million for festival. 

17 

Background 

• The Harbour Fest fell far short of expectations. Media 

comment was generally negative. Members of the 

Legislative Council expressed concern. 

• In October 2003, the Audit Commission commenced its 

review. 

• The Audit Commission observed that many of the problems 

had arisen because “too little time was available to do too 

many things.“ 

• In November 2003, the Chief Executive appointed an 

Independent Panel to inquire into the handling of the 

festival. 

• In its report, the Independent Panel was critical of MR, 

finding that, as Government‘s controlling officer, he had not 

adequately discharged his responsibilities. 

• Chief Executive directed that disciplinary action against MR 

be held. 

18 

Background 

• An Inquiry Committee was appointed by the 

Secretary for the Civil Service, acting under 

delegated authority. 

• Two members of the Committee: Chairman, 

Mr Wilfred Tsui, the Judiciary Administrator 

and Mr Lo Yiu Ching JP, the Permanent 

Secretary for the Environment, Transport and 

Works (Works) 

19 

Five Charges 

There were five charges of misconduct: 

(a) failing to ensure that the budget proposed critically examined 

by Invest HK and that the ERWG was fully and adequately 

advised on the proposed budget (substantiated); 

(b) failing to ensure that an effective mechanism was in place to 

enable the Government to monitor the organisation of the 

Harbour Fest properly and to ensure that the Government‘s 

interest in the use of public funds allocated to the festival was 

adequately protected (partially substantiated); 

(c) failing to ensure that the Government‘s interests were adequately 

protected in the sponsorship contract (partially substantiated); 

(d) failing to ensure that a critical review of ticket pricing strategy 

was carried out thereby prejudicing the Government‘s position 

(partially substantiated); 

(e) failing to establish procedures and mechanisms whereby a 

detailed budget and all statements of account in relation to the 

festival would be subject to the scrutiny and approval by Invest 

HK prior to and during the course of the festival as a result of 

which the Government‘s interests in the proper monitoring of 

the festival were prejudiced (partially substantiated). 

20

Background 

• The Secretary for the Civil Service accepted the 

Inquiry Committee‘s findings in full and imposed 

penalty: 

– a severe reprimand 

– a fine equivalent to reduction in salary by two 

increments for 12 months 

– a caution that, in the event of further misconduct, 

serious consideration would be given to removing 

MR from the Civil Service 

• MR applied for judicial review. 

Issue 1: 

Impartiality of the Inquiry Committee 

• Tsui, in anticipation of his retirement, had made 

an application for the waiver of the ‘sanitisation‘ 

period; that is, the period during which, 

immediately following his retirement, he could 

not take up other work; delayed making his 

application for a waiver of his sanitisation 

period until after the report had been submitted 

and the Secretary for the Civil Service had 

accepted its findings. 

21 

22 

Issue 1: 


• Lo, with his retirement also looming, was the subject of an 

application made by his department for his re-employment. 

- There was no delay in the application. 

- Lo had been appointed to the Inquiry Committee some three 

months before the application for his re-employment. 

- Though the application stood to benefit him, it was essentially 

incidental. The application was made for the benefit of the 

Bureau to meet its operational needs. 

- The application was first subject to the scrutiny of an 

independent statutory body, Public Service Commission, 

whose concern would be solely the operational needs and 

succession planning. This would place constraints on the final 

decision-making discretion of the Secretary for the Civil 

Service. 

23 

Issue 1: 


• The Secretary for the Civil Service, who had 

appointed both Committee members, and to 

whom their report would be submitted, was the 

person who would finally decide, or be materially 

instrumental in deciding, whether to grant the two 

applications. 

• Any apparent bias? 

24

Issue 1: 


• Test for apparent bias: “The Court must 

f i r s t a s c e r t a i n a l l t h e r e l e v a n t 

circumstances and then ask whether those 

circumstances would lead a fair-minded 

and informed observer to conclude there 

was a real possibility that the tribunal was 

biased.“ 

Deacons v. White & Case Ltd Liability 

Partnership (2003) 6 HKCFAR 322. 

25 

Issue 1: 


Hartmann J.: 

“…the applicant‘s concerns in respect of Mr Tsui were set 

to one side when, among other things, he learnt that Mr Tsui 

had delayed making his application for a waiver of his 

sanitisation period until after the report had been 

submitted and the Secretary for the Civil Service had 

accepted its findings.“ 

26 

Issue 1: 


Hartmann J.: 

“An informed observer would, of course, have been aware of the fact 

that Mr Lo had been appointed to the Inquiry Committee as far back 

as late September 2004, some three months before the application for 

his re-employment. An informed observer would also have been 

aware of the process by which all applications of the kind made by Mr 

Lo were processed; namely: 

• The application would only have been made by the Bureau itself 

on the basis of operational need. 

• The application would have been referred to the Public Service 

Commission, an independent statutory body, which would have 

considered the application on the merits. 

• Any decision made by the Secretary for the Civil Service to reemploy 

Mr Lo would only have been made if the Public Service 

Commission – as it did in the present case – had given its approval. 

…I do not believe that it would have given rise in the mind of a fairminded, 

independent observer to a real possibility that Mr Lo, and 

through him the Committee itself, may have been biased.“ 

27 

Issue 2: Standard of Proof 

Duty of a disciplinary tribunal: 

– not under any obligation to expressly state what 

standard of proof; 

– but if a disciplinary tribunal chooses to give some 

indication of the standard of proof it has adopted, it 

should do so in terms that make it clear it has 

adopted the correct standard; 

– a failure to do so may indicate that the Tribunal has 

not fully understood the correct test to be applied 

and that it could not therefore, in the systematic 

manner demanded, have applied the correct test. 

28


The correct standard: 

- balance of probability 

- a single standard: a tribunal may be satisfied as to an 

evidential matter if it considers, on all the evidence, that it 

was more likely than not 

- the tribunal must have in mind as a factor – to whatever 

extent is appropriate in the particular case – that the more 

serious the allegation the less likely it is that the event 

occurred and, hence, the stronger should be the evidence 

before the tribunal concludes that the matter has been 

established on the balance of probability (See A Solicitor v. 

The Law Society of Hong Kong,, FACV 24/2007). 

29 


The Committee directed itself on the standard of proof: 

“The Defence advocated a higher standard of proof than ‘a 

mere balance of probability‘, at least to ‘a high degree of 

probability‘. 

This Committee does not want to get involved in legalistic 

definition of what the two terms mean. What the 

Committee can confirm is that it was relied only on the 

documentary evidence submitted by the parties and oral 

testimony of the witnesses. The onus of proof is on the 

Assisting Officer to produce evidence to substantiate the 

Charges. Where there is no documentary evidence and the 

oral evidence by witnesses are in conflict, the benefit will 

go the Accused Officer.“ 

Was the correct standard applied? 

30 


Hartmann J.: 

“…that direction, it seems to me…fails to take into 

account what any standard of proof demands; that is, a 

review of the strength of the evidence. Even when there is 

no conflict, the evidence simply may not be cogent enough. 

It seems to me that certain of the core issues that fell for 

determination by the Inquiry Committee demanded not only 

an accurate assessment of what it was that the evidence was 

intended to proof but whether understood in context, it was 

compelling enough to do so.“ 

31 


Hartmann J.: 

“…by way illustration only, the Committee may have 

directed itself as follows: ‘The accused officer [the 

applicant] has a long and unblemished record. He has held 

positions of considerable responsibility. The charges 

against him are serious. They allege misconduct on his part 

by way of a failure to discharge his duties to the standard 

expected of an officer of his rank. Having regard to his 

history of service, his alleged misconduct must be 

improbable. That being the case, the more compelling must 

be the evidence needed to satisfy us on the preponderance 

of probability that, instead of striving to do his best in 

circumstances of extreme difficulty, the applicant was guilty 

of oversight and neglect and was therefore guilty of 

misconduct.‘“ 

32

Issue 3: Denial of legal representation 

• MR applied to have legal representation in the 

disciplinary proceeding. 

• The Secretary for Civil Service refused legal 

representation on the basis of a policy that legal 

representation would only be permitted for 

compelling reasons. 

• Is this the proper test? 

• If the fairness test is applied in this case, should 

legal representation be allowed? 


Public Service (Disciplinary) Regulation s.8(3) 

provides that: 

“The officer may be assisted in his defence by- 

(a) another public servant, other than a legally 

qualified officer, who may be a representative 

member of a staff association represented on the 

Senior Civil Service Council; or 

(b) such other person as the Chief Executive may 

authorise.“ 

33 

34 


• Under the Regulation, the CE has the discretion to 

authorise representation of an officer by ‘such other 

person‘ as the officer may choose, that ‘other person‘ 

must include a lawyer. There is a discretion to permit 

legal representations if the circumstances were 

appropriate. It is a matter, in each and every case, of 

what fairness requires. 

• Under common law, there is no absolute right to be 

legally represented before an administrative tribunal, 

even a tribunal with the power to impose swingeing 

penalties, there is a discretion vested in the tribunal to 

permit legal representation if fairness requires it. 

35 


Hartmann J.: 

“I am of the view that the approach adopted by the Secretary for the 

Civil Service was erroneous. His function was simply to weigh all 

the factors relevant to the applicant‘s application and to come to a 

judgment as to what fairness required in his case. Instead, it seems 

that he approached the matter on the basis that he must adhere to a 

policy, seemingly well established, to the effect that legal 

representation would not be permitted unless compelling 

circumstances were demonstrated. In so doing, the Secretary was 

fettering his discretion. 

…For him the threshold test was…one of…attempting to determine 

whether, on consideration of all relevant factors, an exception should 

be made to the general rule laid down by the policy. But, in my 

opinion, what fairness dictates in determining whether legal 

representation should or should not be granted is not to be constrained 

by the shackles of some set policy, still less a policy that puts the bar 

as high as the requirement to show compelling circumstances…there 

can be no threshold test of ‘exceptionality‘. “ 

36


Hartmann J.: 

“This leads me to consider whether, despite its shortcomings, the 

decision made by the Secretary for the Civil Service in fact 

prejudiced the applicant in any material way. It is well established 

that a breach of the rules of fairness will not inevitably lead to an 

administrative decision being quashed. 

…In my judgment, these circumstances created a complex 

scenario…the difficulties and the nuances of explaining to the 

Inquiry Committee the unique problems faced in that situation plainly 

required the services of a legally qualified advocate trained to 

separate out the relevant from the irrelevant and to express in the 

clearest manner possible the subtle and complex difficulties that 

would have arisen in undertaking the Harbour Fest. 

I am satisfied that the decision to deny the applicant legal 

representation, having regard to the exceptional circumstances of his 

case, may well have materially prejudiced him in the presentation of 

his case. In short, the decision denied him natural justice.“ 

37 

Issue 4: 

Dual role played by the Department of Justice 

• DOJ acts as a legal adviser to Government in respect of disciplinary 

proceedings brought against civil servants guilty of misconduct. 

• A law officer in the DOJ gave advice concerning the prosecution: 

(a) the institution of the disciplinary proceeding (advising whether 

there was a prima facie case against the accused officer; 

considering the draft charges, and giving advice concerning the 

accused officer‘s request for legal representation); (b) during the 

course of the hearings before the Inquiry Committee (giving 

advice to those responsible for the prosecution of the proceedings); 

(c) the report of the Inquiry Committee (considering the report to 

advise whether the proceedings were in order and whether the 

findings of the Inquiry Committee were supported by evidence 

presented during the hearings.) 

• The same law officer gave advice to the Secretary for the Civil 

Service (giving advice whether the accused officer was or was not 

guilty of any breach of discipline and the appropriate penalty to be 

given. 

• Any apparent bias? 

38 

Issue 4: 


• Test for apparent bias: “The Court must 

f i r s t a s c e r t a i n a l l t h e r e l e v a n t 


circumstances would lead a fair-minded 

and informed observer to conclude there 

was a real possibility that the tribunal was 

biased.“ 



39 

Issue 4: 


Hartmann J.: 

“…in my view, there was an inherent conflict in 

playing an integral advisory role in the prosecution 

of the applicant for breach of discipline and 

thereafter playing an integral role in advising the 

Secretary for the Civil Service whether to find the 

applicant guilty of any such breach. 

…a fair-minded and informed observer, having 

considered the facts, would have concluded that 

there was a real possibility of bias on the part of Mr 

Wingfield arising out of his dual advisory role.“ 

40

Issue 5: Non-disclosure to MR of the advice given by 

the law officer to the Secretary for the Civil Service 

• The advice given to the Secretary for the 

Civil Service concerning the findings of 

the Inquiry Committee and the viability of 

those findings by the law officer was not 

disclosed to MR. 

• Was this unfair? 

41 

Issue 5: Non-disclosure to MR of the advice given by 

the law officer to the Secretary for the Civil Service 

Hartmann J.: 

“It is now well established, certainly in respect of disciplinary 

proceedings, that it is unfair for a tribunal to receive evidence 

or submissions from one of the parties without the other 

parties having the opportunity to comment on them. 

…In the present case, it must be understood that the ultimate 

judge of the applicant‘s culpability was the Secretary for the 

Civil Service. In that sense, he constituted ‘the tribunal‘.…All 

that came before constituted the gathering of evidence and the 

rendering of advice so that the Secretary could make his 

decision. As such, in my opinion, it was quite clearly a breach 

of the rule of fairness for the Civil Service Bureau, on the 

advice of the Department of Justice, to give advice to the 

Secretary concerning the decision to be made by him without 

giving the applicant the opportunity to see that advice and, if he 

wished, to comment on it.“ 

42 

Issue 6: Unreasonableness of the findings of the 

Inquiry Committee 

• Charge (a): MR had failed to ensure that the budget 

proposed by AmCham for Harbour Fest had been 

critically examined by Invest HK and whether the ERWG 

had been fully and adequately advised on the proposed 

budget when funding approval was considered at the 

meeting of the ERWG. 

• The Inquiry Committee found that the charge was 

substantiated. 

• The Inquiry Committee found that the talent costs, TV 

production costs and marketing costs had not been 

subject to critical examination by Invest HK. 

• There was unchallenged evidence that the budget was 

understood to be indicative and that those costs that were 

capable of verification had been verified. 

• Were the decisions on the findings of the Inquiry 

Committee unreasonable? 

43 



Hartmann J.: 

“It is not for the court to examine the merits of the Inquiry 

Committee‘s findings. This court‘s jurisdiction is restricted 

to a review of the lawfulness of the decision-making 

process. 

I confess to having considerable sympathy for the 

applicant‘s contention: what could be verified was 

verified… 

There may not have been direct evidence of the 

consequences of any failure – if it be such – on the part of 

the applicant. But the Committee was entitled to consider 

all the relevant circumstances at the time and to come to a 

finding as to the standard of performance to be expected of 

an officer of the applicant‘s rank and experience. This court 

must be slow to interfere with a judgment to that end.“ 

44



Hartmann J.: 

“It is to be remembered that ‘misconduct‘, as it is defined 

in the Disciplinary Guide, is a broad concept, one that can 

best be understood by civil servants who are bound by that 

concept. 

Was the decision nevertheless irrational? Another Inquiry 

Committee may well have come to a different conclusion – 

I may have done so – but that is not to the point. In my 

judgment, whether the determination was right or wrong, 

I do not see how it can be described as a decision which 

no reasonable Inquiry Committee could have reached.“ 

45 

Issue 7: Chief Executive acting ultra vires in 

delegating his powers 

• MR made his representations to the Chief Executive as 

appeal against the decision of the Secretary for the Civil 

Service under s.20 of the Public Service 

(Administration) Order. 

• The Chief Executive delegated to the Chief Secretary 

the authority to determine MR‘s appeal. 

• The Chief Secretary, having carefully considered the 

case, had decided to uphold the findings as to culpability 

and penalty. 

• Had the CE acted ultra vire by delegating his power to 

consider MR‘s appeal? 

46 



Section 20, Public Service (Administration) Order: 

(1) Every officer who has any representations of a public or 

private nature to make to the Government of HKSAR 

should address them to the Chief Executive. The Chief 

Executive shall consider and act upon each representation 

as public expediency and justice to the individual may 

request. 

(2) The Chief Executive may appoint a review board to 

advise him on such representations addressed to him 

relating to appointment, dismissal and discipline of public 

servants as he things fit.“ 



Section 19, Public Service (Administration) Order: 

“(1) Subject to subsection (2), the Chief Executive may 

delegate to any public servant or any other public officer 

any powers or duties conferred or imposed on him by 

sections 3 and 9 to 18. 

(2)The Chief Executive shall not delegate the power to 

make regulations under section 21(2).“ 

47 

48



Hartmann J.: 

“As to the powers of delegation given to the Chief 

Executive under s.63 of the Interpretation and General 

Clauses Ordinance, Cap. 1, it was not disputed that this 

section relates only to delegation of statutory powers and 

was not therefore relevant to the delegation of power under 

an executive order. 

In reading the relevant provisions of the Administration 

Order in context, and giving to those provisions their 

ordinary English meaning, I confess that I have 

considerable difficulty with [the] contention that the power 

to delegate powers and functions under s.20 is implicit.“ 

49 



Hartmann J.: 

“S.19(1) provides that the Chief Executive‘s power to delegate 

is limited to certain specifically identified sections. If the Chief 

Executive‘s powers and functions under s.20 were always 

‘understood‘ to be subject to delegation, why was s.20 not 

included as a relevant section in s.19(1)? On any ordinary 

reading, its omission, it seems to me, must have been intended. 

…what is sought to be delegated is not an ancillary or 

peripheral power, one that is incidental. What is sought to be 

delegated is the power to determine appeals by civil servants… 

the power relates to matters of discipline which can carry 

consequences of real seriousness.“ 

50 



Hartmann J.: 

“It is a power therefore of importance. To the extent that 

the power goes to the determination of disciplinary appeals, 

it is a power which has many of the features of a judicial 

power. 

I must conclude that the Chief Executive acted outside of 

the powers given to him in the Administration Order when 

he purported to delegate the determination of the 

applicant‘s s.20 appeal. The delegation being invalid, so 

too was the Chief Secretary‘s decision made pursuant to 

that delegation.“ 

Issue 8: failure of CS to give reasons 

rejecting MR‘s appeal 

• The decision of the Chief Secretary that MR‘s appeal 

should be dismissed was conveyed to MR by a letter. No 

reasons for the decision were given. 

• MR sought reasons but was refused. 

• Was there a duty to give reason by the Chief Secretary? 

51 

52



Hartmann J.: 

“s. 20 does not impose a statutory duty to give reason. 

As to the common law position…this is not to say that there now 

exists any rule of common law to the effect that a public authority 

must always give reasons for its decisions. Nor, as I understand it, 

does there exist a duty generally to give reasons subject only to 

reasonable exceptions that have evolved by way of empirical 

experience. 

… what will be implied by our courts is only so much as is necessary 

by way of procedural safeguards to ensure fairness. But the standards 

of fairness are not. 

In the light of those principles,…it was necessary in each case to 

conduct an analysis of “the character of the decision making body, 

the kind of decision it has to make and the statutory or other 

framework in which it operates.“ 

53 



Hartmann J.: 

“I am satisfied that the Chief Secretary had no duty in law to give 

reasons in the present case. I say so for the following reasons: 

(i) As I have said, s.20 of the Administration Order imposes no 

general duty to give reasons. 

(ii) The appeal was not to an outside body; for example, to a 

division of the High Court, which, as a stranger to the 

disciplinary code contained in the Administration Order, may be 

expected to give reasons to explain its approach. The appeal 

remained within the Civil Service. 

(iii) The Chief Secretary did not assume any form of inquisitorial 

role. The Inquiry Committee had already heard the relevant 

evidence, made its findings of fact and submitted a detailed 

report. The Chief Secretary was required to do no more than 

review the contents of the report and the applicant‘s 

representations and to assess them in light of his own 

knowledge and experience as a civil servant.“ 

54 



Hartmann J.: 

“(iv) There was no appeal to any higher body and no need therefore 

to supply reasons for the benefit of that body…what must be 

remembered is that the entire process is administrative. The 

Chief Secretary is not a judge. 

(v) Reasons may be required in a case when the interest at issue is 

highly regarded by the law; for example, when the issue is 

dismissed from service. In the present case, however, no such 

punishment was at risk on appeal. The penalty imposed on the 

applicant, while obviously a blow for him personally, did not 

threaten his continued service at his attained rank. 

(vi) …there may be occasions when, for example, a first instance 

decision on its face is so aberrant that any review of such a 

decision demands communicated reasoning. But…I do not see 

that, on its face, any finding of the Inquiry Committee was so 

aberrant as to demand some explanation for its acceptance.“ 

Applicability of 

Natural Justice 

55 

56

Ridge v. Baldwin [1964] A. C. 40 

57 


• Ridge, became chief constable of the County Borough of Brighton 

in 1956, after serving in the Brighton Police Force for some 33 

years. 

• Ridge had been arrested on October 25, 1957, and subsequently 

tried on a charge of conspiring with the senior members of his 

force and others to obstruct the course of justice, and had been 

suspended from duty on October 26. 

• He was acquitted on February 28 but the other two members of the 

force were convicted and in sentencing them the trial judge, 

Donovan J., made a statement which included grave reflections on 

Ridge‘s conduct. 

• At a meeting of the watch committee, the police authority, on 

March 7, 1958, it was resolved that he should be dismissed. The 

watching committee gave no notice to Ridge of the grounds on 

which the committee proposed to act and no opportunity to hear 

Ridge‘s own defence was offered. 

58 


• The power of dismissal is contained in section 191 (4) of 

the Municipal Corporations Act, 1882: 

“The watch committee, or any two justices having 

jurisdiction in the borough, may at any time suspend, and 

the watch committee may at any time dismiss, any 

borough constable whom they think negligent in the 

discharge of his duty, or otherwise unfit for the same.“ 

• Should the principle of natural justice be applicable in 

this case? 

• Was there a breach of the rule of fair hearing? 

59 


Lord Reid: 

“…cases of dismissal. These appear to fall into three classes: 

dismissal of a servant by his master, dismissal from an office held 

during pleasure, and dismissal from an office where there must be 

something against a man to warrant his dismissal. 

The law regarding master and servant is not in doubt. There cannot 

be specific performance of a contract of service and the master can 

terminate the contract with his servant at any time and for any reason 

or for none. But if he does so in a manner not warranted by the 

contract he must pay damages for breach of contract. 

…Then there are many cases where a man holds an office at 

pleasure. …It has always been held, I think rightly, that such an 

officer has no right to be heard before he is dismissed and the reason 

is clear. As the person having the power of dismissal need not have 

anything against the officer, he need not give any reason. 

…the third class which includes the present case. There I find an 

unbroken line of authority to the effect that an officer cannot lawfully 

be dismissed without first telling him what is alleged against him 

and hearing his defence or explanation.“ 

60


Lord Reid: 

“The matter has been further complicated by what I believe to be a 

misunderstanding of a much-quoted passage in the judgment of Atkin L.J. 

in Rex v. Electricity Commissioners Ex parte London Electricity Joint 

Committee Co.( [1924] 1 K.B. 171, 205; 39 T.L.R. 715) He said: 

‘... the operation of the writs [of prohibition and certiorari] has extended to 

control the proceedings of bodies which do not claim to be, and would not 

be recognised as, Courts of Justice. Wherever any body of persons having 

legal authority to determine questions affecting the rights of subjects, and 

having the duty to act judicially, act in excess of their legal authority, they 

are subject to the controlling jurisdiction of the King‘s Bench Division 

exercised in these writs.‘ 

If …it is never enough that a body simply has a duty to determine what the 

rights of an individual should be, but that there must always be something 

more to impose on it a duty to act judicially before it can be found to 

observe the principles of natural justice, then that appears to me impossible 

to reconcile with the earlier authorities. 

I can see nothing ‘superadded‘ to the duty itself. Certainly Lord Atkin did 

not say that anything was superadded. And a later passage in his judgment 

convinces me that he, inferred the judicial character of the duty from the 

nature of the duty itself.“ 

61 

Nature of 

decision maker 

Nature of the 

interest of the 

person affected 

62 

Kinds of Interest 

traditional legal rights 

63 

64

Cooper v. The Board of Works for the Wandsworth 

District (1893) 14 CBNS 180 

65 



• Under the s. 76 of the Metropolis Local Management Act, 

any person shall give seven days‘ notice to the district 

board of his intention to build before he begins to build a 

new house. 

• In default of such notice it shall be lawful for the district 

board to demolish the house. 

• C built his house without giving such notice and the 

Wandsworth district board decided to pull down and 

demolish his house. 

• Should the principles of natural justice be applicable in 

this case? 

• Did the Wandsworth district board have the power to 

demolish the house without giving any notice to C and 

offering him an opportunity of being heard? 

66 



WILLES, J. 

“I apprehend that a tribunal which is by law invested 

with power to affect the property of one of Her 

Majesty‘s subjects, is bound to give such subject an 

opportunity of being heard before it proceeds: and 

that that rule is of universal application, and founded 

upon the plainest principles of justice.“ 

Lau Tak-pui v. Immigration Tribunal 

[1992] 1 HKLR 374 

67 

68


[1992] 1 HKLR 374 

• The Immigration Tribunal established under the Immigration 

Ordinance in exercising its power under s. 53D of the Ordinance 

determined that Lau had not been born in Hong Kong, that the 

removal order made by the Deputy Director of Immigration was 

therefore valid and that his appeal against such orders should be 

dismissed. 

• There is no express provision requiring the Tribunal to give reason. 

• The Tribunal did make a statement explaining the ground for its 

decision as follows: 

“After careful consideration of the evidence given by all parties 

concerned and by the witnesses presented, the Tribunal has come 

to the conclusion that the Appellants, have not discharged the 

burden of proof that they were born in Hong Kong and therefore do 

not enjoy the right of abode in Hong Kong under s. 2A of the 

Immigration Ordinance. The appeal is dismissed.“ 

• Should the principles of natural justice be applicable in this 

case? 

• Was there a duty to give reason? 

• Was that reason an adequate one? 

69 


[1992] 1 HKLR 374 


“Hong Kong Immigration Tribunal was and is a fully judicial and 

non-domestic body when hearing such appeals … it exercises powers 

affecting the liberty and residential and citizenship rights of 

appellants pursuant to statutory provisions of some complexity. These 

are special circumstances which, quite apart from any implication to 

be derived from the wording of s. 53D, as to which I express no 

opinion, require as a matter of fairness the provision of outline 

reasons showing to what issues the Tribunal has directed its mind and 

the evidence upon which it has based its conclusions. 

Turning then to the adequacy of the reasons given in the respective 

appeals they show that the only issue …fell for their determination, 

namely the appellants‘ places of birth, had been addressed and, by 

necessary implication, that all the evidence germane to that issue had 

been considered.“ 

70 

O‘Reilly v. Mackman [1983] 2 A.C. 237 

public law interests 

71 

72


• O‘Reilly was serving a long sentence of imprisonment. 

A disciplinary award of forfeiture of remission of 

sentence was made by the Board of Visitors of Hull 

Prison in the exercise of their disciplinary jurisdiction 

against O‘Reilly. 

• O‘Reilly wanted to challenge the decision on the ground 

that the Board failed to observe the rules of natural 

justice. 

• The action was commenced by originating summons, 

i.e. by private law proceeding. 

• Should the principles of natural justice be applicable 

in this case? 

• Was the matter a public law or a private law matter? 

• Can public law matter be proceeded in private law 

proceeding? 

73 


Lord Diplock: 

“It is not…contended that the decision of the board 

awarding him forfeiture of remission had infringed or 

threatened to infringe any right of the appellant derived 

from private law, whether a common law right or one 

created by a statute. Under the Prison Rules remission of 

sentence is not a matter of right but of indulgence. So far as 

private law is concerned all that each appellant had was a 

legitimate expectation, based upon his knowledge of what is 

the general practice, that he would be granted the maximum 

remission, permitted by …the Prison Rules, of one third of 

his sentence if by that time no disciplinary award of 

forfeiture of remission had been made against him. So the 

second thing to be noted is that none of the appellants had 

any remedy in private law.“ 

74 


McInnes v Onslow-Fane [1978] 1 WLR 1520 

Lord Diplock: 

“In public law, as distinguished from private law, however, such 

legitimate expectation gave to each appellant a sufficient interest to 

challenge the legality of the adverse disciplinary award made against 

him by the board on the ground that in one way or another the board 

in reaching its decision had acted outwith the powers conferred upon 

it by the legislation under which it was acting; and such grounds 

would include the board‘s failure to observe the rules of natural 

justice: which means no more than to act fairly towards him in 

carrying out their decision-making process, and I prefer so to put it. 

In the instant cases where the only relief sought is a declaration of 

nullity of the decisions of a statutory tribunal, the Board of Visitors of 

Hull Prison, as in any other case in which a similar declaration of 

nullity in public law is the only relief claimed, I have no hesitation, in 

agreement with the Court of Appeal, in holding that to allow the 

actions to proceed would be an abuse of the process of the court.“ 

75 

76


• M applied for the licence to the western area council of 

the British Boxing Board of Control, and the board 

refused to grant it. The board was an unincorporated body 

of persons formed with the objects of controlling, 

regulating and encouraging professional boxing in the 

United Kingdom. 

• The board did not inform M the reason for the decision 

nor did the board agree to give him an oral hearing. 

• Should the principles of natural justice be applicable in 

this case? 

• Was there a breach of the principles of natural justice? 

77 


Megarry V.-C.: 

“…there is the question of whether the grant or refusal of a licence 

by the board is subject to any requirements of natural justice or 

fairness which will be enforced by the courts. 

…at least three categories may be discerned. First, there are what may 

be called the forfeiture cases. In these, there is a decision which takes 

away some existing right or position, as where a member of an 

organisation is expelled or a licence is revoked. Second, at the other 

extreme there are what may be called the application cases. These are 

cases where the decision merely refuses to grant the applicant the 

right or position that he seeks, such as membership of the 

organisation, or a licence to do certain acts. Third, there is an 

intermediate category, which may be called the expectation cases, 

which differ from the application cases only in that the applicant has 

some legitimate expectation from what has already happened that his 

application will be granted. This head includes cases where an 

existing licence-holder applies for a renewal of his licence or a 

person already elected or appointed to some position seeks 

confirmation from some confirming authority.“ 

78 



“It seems plain that there is a substantial distinction between the 

forfeiture cases and the application cases. In the forfeiture cases, there is 

a threat to take something away for some reason: and in such cases, the 

right to an unbiased tribunal, the right to notice of the charges and the 

right to be heard in answer to the charges…are plainly apt. In the 

application cases, on the other hand, nothing is being taken away, and in 

all normal circumstances there are no charges, and so no requirement of 

an opportunity of being heard in answer to the charges. Instead, there is 

the far wider and less defined question of the general suitability of the 

applicant for membership or a licence. The distinction is well-recognised, 

for in general it is clear that the courts will require natural justice to be 

observed for expulsion from a social club, but not on an application for 

admission to it. The intermediate category, that of the expectation cases, 

may at least in some respects be regarded as being more akin to the 

forfeiture cases than the application cases; for although in form there is 

no forfeiture but merely an attempt at acquisition that fails, the legitimate 

expectation of a renewal of the licence or confirmation of the 

membership is one which raises the question of what it is that has 

happened to make the applicant unsuitable for the membership or licence 

for which he was previously thought suitable.“ 

79 



“...there may well be jurisprudential questions about the true 

nature of such a ‘right.‘ I have no intention of discussing the 

wide variety of meanings which the protean word ‘right‘ 

embraces; but if a person has a right in the strict sense of the 

word, then some other person or persons must be subject 

to a duty correlative to that right. Yet who is under a duty 

to provide the work? Who can be sued? The ‘right to work‘ 

can hardly mean that a man has a ‘right‘ to work at 

whatever employment he chooses, however unsuitable he is 

for it; and if his ‘right‘ is merely to have some work 

provided for him that is within his capabilities, then the 

difficulty of determining who is under the duty to provide it 

is increased. 

…‘the right to work‘ …will not come to be accepted by the 

law as being a term of art, or as an example of what can 

truly be called a ‘right.‘“ 

80



“Looking at the case as whole, in my judgment there is no obligation 

on the board to give the plaintiff even the gist of the reasons why 

they refused his application, or proposed to do so. This is not a case in 

which there has been any suggestion of the board considering any 

alleged dishonesty or morally culpable conduct of the plaintiff. 

…There is a more general consideration. I think that the courts must 

be slow to allow any implied obligation to be fair to be used as a 

means of bringing before the courts for review honest decisions of 

bodies exercising jurisdiction over sporting and other activities which 

those bodies are far better fitted to judge than the courts. This is so 

even where those bodies are concerned with the means of livelihood 

of those who take part in those activities. 

…I cannot see how the obligation to be fair can be said in a case of 

this type to require a hearing. I do not see why the board should not be 

fully capable of dealing fairly with the plaintiff‘s application without 

any hearing. The case is not an expulsion case where natural justice 

confers the right to know the charge and to have an opportunity of 

meeting it at a hearing.“ 

81 


Lord Reid: 

“…cases of dismissal. These appear to fall into three classes: 

dismissal of a servant by his master, dismissal from an office held 

during pleasure, and dismissal from an office where there must be 

something against a man to warrant his dismissal. 

The law regarding master and servant is not in doubt. There cannot 

be specific performance of a contract of service and the master can 

terminate the contract with his servant at any time and for any reason 

or for none. But if he does so in a manner not warranted by the 

contract he must pay damages for breach of contract. 

…Then there are many cases where a man holds an office at 

pleasure. …It has always been held, I think rightly, that such an 

officer has no right to be heard before he is dismissed and the reason 

is clear. As the person having the power of dismissal need not have 

anything against the officer, he need not give any reason. 

…the third class which includes the present case. There I find an 

unbroken line of authority to the effect that an officer cannot lawfully 

be dismissed without first telling him what is alleged against him 

and hearing his defence or explanation.“ 

82 

Mohamed Yaqub Khan v. Attorney General 

[1986] HKLR 922 


[1986] HKLR 922 

• Khan, a Superintendent of the Hong Kong Auxiliary 

Police Force, was dismissed by the Commissioner of 

Police on the ground of his misconduct. 

• Section 9(1) of the Hong Kong Auxiliary Police Force 

Ordinance (Cap. 233), was in these terms: 

“Gazetted officers may be appointed, promoted, 

reduced in rank or dismissed by the Governor.“ 

• Khan was not informed of the actual allegations against 

him. 

• Should the principles of natural justice be applicable 

in this case 

83 

84


[1986] HKLR 922 

Cons, V.-P.: 

“…in cases where an officer can only be dismissed for 

cause…the requirements of natural justice will depend 

upon the reason which in fact underlies his dismissed. At 

the very least, we would think he is entitled to know the 

reason for his dismissal. 

…we have come to the conclusion …to dismiss Mr. Khan 

were matters of misconduct…we therefore conclude that in 

the circumstances Mr. Khan ought to have been informed 

of the contents of that memorandum and given the 

opportunity to make representations in answer.“ 

public law interests 

include legitimate expectation 

(See the lecture on Legitimate 

Expectation concerning 

situations that can generate a 

legitimate expectation) 

85 

86 

Right to Unbiased Decision: 

Right to Unbiased Decision 

• test of bias: no need to have actual bias; only 

apparent bias is needed. 

• The test to determine apparent bias: 

Reasonable likelihood to the eyes of reasonable 

man 

a real danger of bias on the part of the relevant 

members of the tribunal in question 

87 

88

Right to Unbiased Decision: 

• Test for apparent bias in Hong Kong: “The 

Court must first ascertain all the relevant 


circumstances would lead a fair-minded and 

informed observer to conclude there was a real 

possibility that the tribunal was biased.“ 



Right to Unbiased Decision: 

Causes of prejudice: 

• judge in his own cause: automatic 

disqualification 

– pecuniary interest 

– prosecutor as judge 

– other interests 

89 

90 

Dimes v. The Proprietor of the Grand Junction 

Canal (1852) 3 H.L.C. 7 


Canal (1852) 3 H.L.C. 7 

• A public company, which was incorporated, filed a bill 

of equity against a land-owner, in a matter largely 

involving the interests of the company. 

• Lord Cottenham, the Lord Chancellor had an interest as 

a shareholder in the company to the amount of several 

thousand pounds, a fact was unknown to the defendant 

in the suit. 

• The cause was heard before the Vice-Chancellor, who 

granted the relief sought by the company. 

• The Lord Chancellor, on appeal, affirmed the order of 

the Vice-Chancellor. 

• Any Bias? 

91 

92


Canal (1852) 3 H.L.C. 7 

Lord Campbell: 

“No one can suppose that Lord Cottenham could be, in 

the remotest degree, influenced by the interest that he had 

in this concern; but my Lords, it is of the last importance 

that he maxim that no man is to be a judge in his own 

cause should be held sacred. 

…And that is not to be confined to a cause in which he is a 

party, but applies to a cause in which he has an interest. 

This will be a lesson to all inferior tribunals to take care not 

only that in their decrees they are not influenced by their 

personal interest, but to avoid the appearance of labouring 

under such an influence.“ 

Panel on Takeovers and Mergers and Another v. William 

Cheng Kai-man (Privy Council Appeal No. 16 of 1995) 

93 

94 



• The statutory body responsible for regulating the 

securities market in Hong Kong is the Securities and 

Futures Commission. 

• The Hong Kong Panel on Takeovers and Mergers 

under the Securities and Futures Commission is 

responsible for policing the observance of the Hong 

Kong Takeover Code. 

• The Panel determined that Cheng had acted in breach 

of the Rule of the Hong Kong Takeover Code in his 

takeover of the Royle Company. 

• The Panel‘s ruling required Cheng to pay compensation 

to shareholders amounting to some HK$49 million. 

95 



• One of the members of the Panel, Clark, had sent to the 

Chairman of the Securities and Futures Commission a letter 

concerning Cheng‘s breach of the Code in these terms: 

“I am writing to you in my assumed capacity as the keeper of the conscience 

of the chairman of the Takeover Committee. In the newspaper, Royle 

Corporation Limited announced that it had purchased 100,000 shares in Shun 

Ho Resources at 40 cents per share, thereby triggering a takeover offer. Since 

the shares in Shun Ho Resources have, with the exception of one day in 

January, traded consistently above 40 cents per share over the last six months 

(see attached chart), the seller must have been particularly well disposed to 

Royle Corporation to have sold shares at below the market price. Has any 

enquiry been made as to the identity of the party who sold these shares, as it 

has the looks of a concert party action. 

If you look back at the press clippings, you will find that William Cheng 

purchased marginally less than 35% of Standard Lloyds (now Shun Ho 

Resources) and the Soon family‘s shareholding dropped from about 65% to 

nil, the balance of the Soon family‘s holding apparently being placed. It is 

quite conceivable that William Cheng knew the identity of the places, as it is 

entirely illogical for him to have controlled a listed pyramid on such a small 

shareholding base.“ 

96



• Clark was also a director of the Anglo Chinese 

Company and a substantial shareholder in its holding 

company. A non-exclusive agency agreement was made 

between Cheng and the company that Anglo Chinese 

Company would act for Royle Company in connection 

with the disposal by it of any property. 

• Any Bias? 

97 



Decision of the Privy Council: 

“Their Lordships‘ view is that upon a fair reading the letter did no 

more than indicate that the circumstances might merit investigation 

in order to ascertain whether or not a concert party had been 

involved. 

In their Lordships‘ opinion any interest which Mr. Clark might have 

had is properly to be described as a remote and contingent one, 

such as in many of the decided cases has been held not to involve any 

presumption of bias. The interest was plainly extremely remote, and 

it depended on the contingencies that Mr. Cheng would utilise the 

services of Anglo Chinese in relation to any disposal of property, and 

that Anglo Chinese would find a purchaser at a price acceptable to 

Mr. Cheng. The mandate was non-exclusive. It did not bind Mr. 

Cheng to use the services of Anglo Chinese for any disposal of 

property, and in view of Mr. Clark‘s involvement it may be regarded 

as highly improbable that he would do so.“ 

98 

Wong Pun Cheuk v. Medical Council 

[1964] HKLR 477 

99 


[1964] HKLR 477 

• The Director of Medical and Health Services referred 

a case against Wong, a medical practitioner, for 

prescribing drugs not required for the purpose of 

medical treatment to the Medical Council under 

Regulation 15 of the Dangerous Drugs Regulations. 

• The Dangerous Drugs Regulations were made under s. 

11 of the Dangerous Drugs Ordinance. 

• The Medical Council of Hong Kong decided to 

withdraw the authorization to prescribe drugs from 

Wong after an inquiry. 

• The Director of Medical and Health Services chaired 

the Medical Council in this inquiry in accordance with 

s.3 of the Medical Registration Ordinance. 

• Any Bias? 

100


[1964] HKLR 477 

Decision of the Court: 

“…it is clear that the Director, under regulation 15 of the Dangerous 

Drugs Regulations, has to be of the relevant opinion, which opinion 

would no doubt not regard the suspect as being innocent, before he 

refers the case to the Medical Council for their decision on the case 

as to whether or not to make the relevant recommendation, and it 

thus appears that he is in the position of a complainant or accuser, 

having presumably previously gone into the evidence available in 

order to form the relevant opinion, and being of the relevant opinion 

refers the case for decision to the Medical Council. At the hearing of 

the inquiry the decision on the case as to whether or not to make the 

relevant recommendation is made by the Medical Council, and 

therefore the members of the Council are the judges of the case, and 

have to adjudge whether or not the recommendation should be 

made.“ 

101 


[1964] HKLR 477 


“It is also clear that the Director is not only a member of the Medical 

Council but he is also its chairman because section 3 of the Medical 

Registration Ordinance says so…. This seems to me to be contrary to 

the legal principle that a person should not be a judge in his own 

cause, which is what the regulation, as at present constituted, as I 

have pointed out, in my opinion lays down, and it therefore appears 

to me to be unjust, and I cannot think that that could have been the 

intention of the Legislature in section 11 of Dangerous Drugs 

Ordinance..... 

For these reasons I have come to the conclusion that regulation 15 of 

the Dangerous Drugs Regulations is ultra vires the enabling 

powers in section 11 of the Dangerous Drugs Ordinance...“ 

102 

R v Bow Street Magistrate, ex parte Pinochet 

Ugarte (No. 2) [1999] 2 WLR 274 

• Pinochet was the Head of State of Chile from 11 September 1973 

until 11 March 1990. It is alleged that during that period there 

took place in Chile various crimes against humanity (torture, 

hostage taking and murder) for which he was knowingly 

responsible. 

• In October 1998 Pinochet was in UK receiving medical 

treatment. 

• In October and November 1998 the judicial authorities in Spain 

issued international warrants for his arrest to enable his 

extradition to Spain to face trial for those alleged offences. The 

Spanish Supreme Court has held that the courts of Spain have 

jurisdiction to try him. 

• Pursuant to those international warrants, Pinochet was arrested. 

• He immediately applied to the Court to quash the warrants. 

• The principle point at issue in the main proceedings in the Courts 

was as to the immunity, if any, enjoyed by Pinochet as a past 

Head of State in respect of the crimes against humanity for which 

his extradition was sought. 103 


Ugarte (No. 2) [1999] 2 WLR 274 

• An appellate committee of the House of Lords including Lord 

Hoffmann heard the case. 

• Amnesty International (AI) became an intervener in the appeal. AI not 

only put in written submissions but was also represented by counsels 

including Professor Brownlie Q.C.. Professor Brownlie addressed the 

committee on behalf of AI. 

• AI is an unincorporated, non-profit making organisation founded in 

1961 with the object of securing throughout the world the observance 

of the provisions of the Universal Declaration of Human Rights in 

regard to prisoners of conscience. 

• AI consists of sections in different countries throughout the world and 

its International Headquarters in London. Delegates of the Sections 

meet periodically at the International Council Meetings to co-ordinate 

their activities and to elect an International Executive Committee to 

implement the Council‘s decisions. The International Headquarters in 

London is responsible to the International Executive Committee. It is 

funded principally by the Sections for the purpose of furthering the 

work of AI on a worldwide basis and to assist the work of Sections in 

specific countries as necessary. 

104


Ugarte (No. 2) [1999] 2 WLR 274 

• The work of the International Headquarters is 

undertaken through two United Kingdom registered 

companies Amnesty International Limited (AIL) and 

Amnesty International Charity Limited (AICL). 

• Lord Hoffmann is a Director and Chairperson of 

AICL, a registered charity incorporated on 7 April 1986 

to undertake those aspects of the work of AIL which are 

charitable under UK law. AICL funds a proportion of 

the charitable activities undertaken independently by 

AIL. 

105 


Ugarte (No. 2) [1999] 2 WLR 274 

• Since 1990 Lord Hoffmann has been the one of the two 

Directors of AICL. He is neither employed nor 

remunerated by either AICL or AIL. He has not been 

consulted and has not had any other role in Amnesty 

International‘s interventions in the case of Pinochet. 

Lord Hoffmann is not a member of Amnesty 

International. 

• In 1997 Lord Hoffmann helped in the organisation of a 

fund raising appeal for a new building for Amnesty 

International UK. He helped organise this appeal 

together with other senior legal figures, including the 

Lord Chief Justice, Lord Bingham. Lord Hoffmann, 

when practising at the Bar, appeared in the Chancery 

Division for Amnesty International UK. 

106 


Ugarte (No. 2) [1999] 2 WLR 274 

• The House of Lords decided against Pinochet by a 

majority of three to two. Lord Hoffmann one of the 

majority judges. 

• Pinochet lodged a petition asking that the order should 

either be set aside completely or the opinion of Lord 

Hoffmann should be declared to be of no effect. 

• The sole ground relied upon was that Lord Hoffmann‘s 

links with AI were such as to give the appearance of 

possible bias. 

• Any bias? 

107 


Ugarte (No. 2) [1999] 2 WLR 274 

LORD BROWNE-WILKINSON (House of Lords): 

“The fundamental principle is that a man may not be a judge in his 

own cause. This principle, as developed by the courts, has two very 

similar but not identical implications. First it may be applied literally: 

if a judge is in fact a party to the litigation or has a financial or 

proprietary interest in its outcome then he is indeed sitting as a 

judge in his own cause. In that case, the mere fact that he is a party 

to the action or has a financial or proprietary interest in its outcome is 

sufficient to cause his automatic disqualification. The second 

application of the principle is where a judge is not a party to the suit 

and does not have a financial interest in its outcome, but in some 

other way his conduct or behaviour may give rise to a suspicion 

that he is not impartial, for example because of his friendship with a 

party. This second type of case is not strictly speaking an application 

of the principle that a man must not be judge in his own cause, since 

the judge will not normally be himself benefiting, but providing a 

benefit for another by failing to be impartial.“ 

108


Ugarte (No. 2) [1999] 2 WLR 274 

LORD BROWNE-WILKINSON (House of Lords): 

“In my judgment, this case falls within the first category 

of case, viz where the judge is disqualified because he is a 

judge in his own cause. In such a case, once it is shown 

that the judge is himself a party to the cause, or has a 

relevant interest in its subject matter, he is disqualified 

without any investigation into whether there was a 

likelihood or suspicion of bias. The mere fact of his 

interest is sufficient to disqualify him unless he has made 

sufficient disclosure“ 

109 

R. v. Chairman of the Town Planning Appeal Board 

Panel [1995] HKCFI 170; HCMP87/1995 

• ML Ltd was the registered owner of a piece of land in 

New Territories. 

• ML made a Third application to the Town Planning 

Board for approval of a proposed residential 

development with nature reserve at the site. 

• The application was rejected and ML lodged an appeal 

to the Town Planning Appeal Board. 

• Mr. Justice Litton, who was a Justice of the Court of 

Appeal of Hong Kong, was the chairperson of the 

panel. 

• Town Planning Appeal Board in a previous decision 

allowed an appeal against a refusal of planning 

permission for a development in an area lying just next 

to ML‘s site. 

110 



• Shortly after that decision, the Friends of the Earth 

gave a press conference commenting upon the decision 

of the Appeal Board. 

• Justice Litton was a member of the Board of 

Governors of Friend of the Earth. 

• Knowing that Justice Litton would be the chairperson 

of the panel hearing its appeal, ML requested Justice 

Litton not to sit in the appeal. 

• Justice Litton resigned from the Board of Governors 

of Friends of the Earth. 

• The request was refused. 

• ML applied for judicial review to challenge the 

decision of Justice Litton not to stand down. 

• Any bias? 

111 



Decision of the Court of First Instance: 

“…this application is premature…there was no example …of what 

might be termed a pre-emptive strike…there was no report of a 

judicial review where a party was attempting to prevent somebody 

who was prima facie entitled to adjudicate from doing so. 

The hearing of the appeal has not taken place. It seems to me that 

what the Applicant should do whilst making it clear that it does not 

agree with the decision of Litton J.A. is to allow the appeal to 

proceed and be heard on its merits, and if it does lose the day and 

there is no reason to assume that it will, to look at the situation as it 

then stands and consider whether it ought to apply for a judicial 

review.…if before the event, merely in order to satisfy misgivings on 

the part of one party leave were granted, there would be a multitude 

of applications for judicial review. It is certain that many of them 

would according to the laws of probability be completely otiose 

because in many of them it must be that the fears expressed would 

turn out to be unjustified.“ 112




“I note that Litton J.A. is a judge of the Court of Appeal of Hong 

Kong. That is one of the facts which I must take into account. He 

knows his duty which is to chair the hearing impartially and to decide 

the appeal on its merits in the light of the evidence and of planning 

guidelines. He will not be alone: he will be sitting with the other 

members of the Board, all of whom have a duty to form their own 

independent views. 

…the real question this court is asked to decide is this: Is there a real 

danger in the sense of a real possibility that injustice will occur as a 

result of unconscious bias in the mind of Litton J.A. if he is 

permitted to take part as Chairman of the Board or at all in the 

hearing of the appeal? 

On the evidence, I am not satisfied that any such real danger exists. 

The Applicant thinks it does but the Applicant has failed to satisfy me 

at this stage on the material before me that any such real danger 

exists.“ 113 



• other personal interests: family 

relationship or friendship 

114 

Metropolitan Properties Co. (F.G.C.) Ltd. v. 

Lannon [1969] 1 Q.B. 577 


Lannon [1969] 1 Q.B. 577 

• Oakwood Court was owned by the Freshwater Group. It proposed 

to increase the rents of the flats. 

• James Lannon, one of the tenants, applied to the rent officer to 

register a “fair rent“ under the Rent Act of 1965. 

• The procedure for determining rents is laid down by the Rent Act 

of 1965. Upon application, a rent officer for the area will first 

determine a fair rent. He is usually a valuer appointed by the 

local authority. If either party objects to his figure, he can appeal 

to the rent assessment committee. 

• This is a committee which consists of a lawyer member (who is 

chairman), a valuer member, and a lay member. The rent officer 

is thus a tribunal of first instance. The rent assessment committee 

is an appeal tribunal. 

115 

116


Lannon [1969] 1 Q.B. 577 

• The rent of James Lannon‘s flat in Oakwood Court was 

determined by a rent officer. The rent officer fixed what he 

thought was fair rent. The Freshwater Group appealed to the rent 

assessment committee. 

• The chairman of the rent assessment committee was John 

Lannon, the son of James Lannon. He was a solicitor living in 

another block of flats owned by the Freshwater Group. The flat in 

which the chairman lived was Regency Lodge. 

• Whilst the bill of the Rent Act was going through Parliament, 

John Lannon attended and addressed several meetings of the 

tenants in Regency Lodge. The intention was to inform the 

tenants what their legal position was likely to be under the new 

law. There was a proposal to form a tenants‘ association to 

represent the views of the tenants. 

117 


Lannon [1969] 1 Q.B. 577 

• After the Act was passed, John Lannon was appointed to be one 

of the panel of lawyer members under the Act. 

• After he was appointed to the panel, John Lannon‘s firm acted for 

some of the tenants in Regency Lodge in their negotiations with 

the Freshwater Group. 

• In addition, after he was appointed to the panel, Mr. John Lannon 

assisted his father in his dealings with the Freshwater Group 

about the rent of another flat in Regency Lodge. 

• That committee made drastic reductions in the rents. They put the 

fair rent at figures which were far lower than the contractual 

rents, and lower than James Lannon had offered. 

• The Freshwater Group applied for judicial review against the 

decision of the rent assessment committee. 

• Any Bias 

118 


Lannon [1969] 1 Q.B. 577 

Lord Denning: 

“…in considering whether there was a real likelihood of bias, the 

court does not look at the mind of the justice himself or at the mind 

of the chairman of the tribunal, or whoever it may be, who sits in a 

judicial capacity. It does not look to see if there was a real likelihood 

that he would, or did, in fact favour one side at the expense of the 

other. The court looks at the impression which would be given to 

other people. Even if he was as impartial as could be, nevertheless if 

right-minded persons would think that, in the circumstances, there 

was a real likelihood of bias on his part, then he should not sit. And if 

he does sit, his decision cannot stand. 

If he was himself a tenant in difference with his landlord about the 

rent of his flat, he clearly ought not to sit on a case against the 

selfsame landlord, also about the rent of a flat, albeit another flat. In 

this case he was not a tenant, but the son of a tenant. But that 

makes no difference. No reasonable man would draw any 

distinction between him and his father, seeing he was living with 

him and assisting him with his case. “ 

119 



• pre-conceived view 

120

Secretary for Justice v. Li Chau Wing 

HCAL 143/2004) 

• Lee was charged with dangerous driving causing death, 

contrary to s.36(1) of the Road Traffic Ordinance, Cap.374. 

The case was to be heard by Judge Thomas. 

• At a Criminal Law conference held the weekend before the 

commencement of trial, Judge Thomas in the course of a 

social conversation spoke causally to Shiu, a member of the 

Prosecutions Division of the Department of Justice. 

• The conversation between Shiu and Judge Thomas turned to 

matters of general legal interest in respect of road traffic. 

Shiu said that, in his opinion, the penalties for dangerous 

driving causing death were too low. Judge Thomas did not 

comment on that opinion. 

• Shortly thereafter, Judge Thomas said that he was dealing 

with a motor accident case. He then said, in his opinion, the 

offence of careless driving was one he did not believe in or 

that it was an offence which he thought to be of little 

efficacy. 

121 


HCAL 143/2004) 

• When Judge Thomas was asked by Shiu why he thought the 

offence of careless driving had no efficacy; that is, no 

capacity to produce its intended results, Judge Thomas said 

something about it being an insurance matter. 

• After the commencement of the trial, an application was 

made by the prosecution for Judge Thomas to recuse himself 

from hearing the matter on the basis of Judge Thomas‘s 

remarks made in the course of a social conversation at the 

conference held the weekend before the commencement of 

trial. 

• Judge Thomas refused the application. 

• The prosecution applied for judicial review Judge Thomas‘s 

decision. 

• Any Bias? 

122 


HCAL 143/2004) 


“In my judgment, I fail to see how any fair-minded observer 

acquainted with the facts of this case could conclude that 

the remarks of the judge, read in context, could possibly 

give rise to any real perception of bias on his part. 

The judge made no comments in favour of or against the 

prosecution or the defence in the trial from which he has 

been asked to recuse himself. His comments were of a 

jurisprudential nature; to put it another way, they were 

philosophical. They concerned not one of the parties and 

what, directly or indirectly, the judge thought of their 

cases but instead one of the possible offences. His 

comments in respect of this possible offence were of a 

general nature only; that is, they were totally unrelated to 

any evidence to be given at trial.“ 

123 


124


• different features: notice, disclosure of 

materials, hearing, legal representation, 

evidence, cross-examination, consultation(?) 


• Notice: 

-informed of all charges 

-how to frame the charge? 

-reasonable time allowed to prepare 

representation 

125 

126 


[1986] HKLR 922 

Cons, V.-P.: 

“…in cases where an officer can only be dismissed for 

cause…the requirements of natural justice will depend 

upon the reason which in fact underlies his dismissed. At 

the very least, we would think he is entitled to know the 

reason for his dismissal. 

…we have come to the conclusion …to dismiss Mr. Khan 

were matters of misconduct…we therefore conclude that in 

the circumstances Mr. Khan ought to have been informed 

of the contents of that memorandum and given the 

opportunity to make representations in answer.“ 

127 

Norman Eric Tomlin v The Preliminary Investigation 

Committee of the Dental Council of Hong Kong [1996] 2 

HKLR 133 

• T made a complaint to the Dental Council of Hong Kong 

alleging an adulterous association by a dentist, Dr. N, 

with his wife who was Dr. N‘s patient. 

• Under the Dentists Registration Ordinance (Cap. 156), 

the question whether, for disciplinary purposes, a dentist 

has been guilty of any unprofessional misconduct is to be 

decided by the Dental Council, after an initial 

consideration by its Preliminary Investigation Committee 

(PIC). 

• The chairman of the PIC referred the complaint to the 

PIC. The PIC invited Dr. N to give any explanation in 

writing. 

128



HKLR 133 

• In the letter sent to Dr. N, it was stated: 

“It is alleged that you, being a registered dentist, did in 

and after April 1992, abuse your professional position in 

order to further an improper, immoral, or indecent 

association or to commit adultery with Mrs. Tam with 

whom you stood in a professional relation; contrary to 

Section 5 of the Warning Notice of the Dental Council 

of Hong Kong Professional Discipline for the Guidance 

of Registered Dentists.“ 



HKLR 133 

Section 18(2), Dentists Registration Ordinance: 

“unprofessional conduct“: 

“an act or omission of a registered dentist which 

would be reasonably regarded as disgraceful or 

dishonourable by registered dentists of good repute 

and competency.“ 

129 

130 



HKLR 133 

Warning Notice of the Dental Council of Hong 

Kong Professional Discipline for the Guidance of 

Registered Dentists“ issued by the Dental 

Council: 

“Section 5 Abuse of Professional Position in order 

to further an improper association or commit 

adultery 

A dental practitioner who abuses his professional 

position in order to further an improper, immoral, or 

indecent association or to commit adultery with a 

person with whom he stands in a professional 

relationship may be subject to disciplinary 

proceedings.“ 131 



HKLR 133 

• Dr. N explained that he had his first social encountering 

T‘s wife about two months after his accepting her as his 

patient. When she disclosed to him her marital problems, 

he felt sympathy for her and their friendship gradually 

developed. He confirmed that there had not been any 

manipulation of his professional position and their 

relationship was not all related to her treatment. 

• The PIC decided that there was no evidence to support 

the claim that Dr. N had abused his professional position 

to further an improper association or to commit adultery 

with his patient and dismissed the complaint. 

• T applied for judicial review against the decision of PIC 

not to refer the complaint to the Dental Council. 

• Any breach of the rule of fair hearing? 132



HKLR 133 

Nazareth, V.P., Court of Appeal: 

“It can be clearly seen from the foregoing that s.5 is merely 

an example of unprofessional conduct and was not 

intended to specify exhaustively the only manner in which 

indecent association or adultery with a patient could 

constitute unprofessional conduct. 

…it seems to me upon the wording and scheme of the 

Ordinance and Regulations that the question of what so 

constitutes unprofessional conduct is to be determined by 

the Dental Council in the context of a disciplinary inquiry, 

after considering the evidence in the individual case.“ 



HKLR 133 

Nazareth, V.P., Court of Appeal: 

“…Plainly, therefore, the charge was a serious procedural error 

which not only failed to accurately reflect the complaint but 

introduced a wholly unjustified and potentially fatal obstacle. It is 

apparent from the minutes that the PIC addressed the charge in the 

way it was framed, i.e. constrained by the words “abuse your 

professional position in order to further an improper, immoral, or 

indecent association or to commit adultery“; and founded their 

decision upon their view that there was no evidence to support such 

abuse. The conclusion is inescapable that the actual complaint has 

never been properly considered by the PIC. Nor is it possible to say 

what conclusion they would have reached had they not regarded 

themselves as constrained by the words mentioned. Plainly the 

complaint should go back for proper consideration.“ 

133 134 


• disclosure of materials 

-materiality test: materials that are relevant, 

materials that may raise a new issue that is not 

apparent 

-primary duty principle: disclose the material 

which has been gathered in the course of 

investigation 

-objective: reasonable opportunity to present 

one‘s case 

135 

Lam Sze Ming and Another v. Commissioner of Police 

CACV 912/2000 

• Lam, Au and Lai, were police officers. 

• They were arrested together with Cheung and Kong in 

an police action against illegal gambling. Lam was 

charged with gambling in a gambling establishment. 

• No evidence was offered against Au and Lai for they 

were willing to give evidence as persecution witnesses 

against Cheung and Kong who were charged with more 

serious gambling related offences. 

• Lam was acquitted and Cheung and Kong were 

convicted. 

• Lam was then charged in the police disciplinary 

proceedings that he had committed conduct calculated 

to bring the Public Service into disrepute. 

• The conduct complained of was that he frequented the 

premises for the purpose of unlawful gambling. 

136


CACV 912/2000 

• For the purpose of the disciplinary proceedings, Lam was 

provided with the charge sheet; a list of witnesses, a list 

of exhibits, statements made by Au and Lai to the police 

during interrogation and a bundle of photographs. 

• However, the following documents were not provided: 

(i) statements made by Au and Lai under caution at the 

time of their arrest; 

(ii) the transcript of court proceedings; 

(iii) an immunity document and all negotiation relating 

to negotiations between the prosecution and Au and Lai 

were not released to Lam. 

• Lam was found guilty and was dismissed. 

• Lam applied for judicial review against the decision. 

• Must these documents be disclosed? 

137 


CACV 912/2000 


“The test to be applied in determining whether disclosure 

should be made…material…(1) to be relevant or possibly 

relevant to an issue in a case; (2) to raise or possibly 

raise a new issue, whose existence is not apparent from 

the evidence the prosecution proposes to use; (3) to hold 

out a real (as opposed to fanciful) prospect of providing a 

lead on evidence which goes to (1) or (2). 

This is the ‘materiality test‘. The primary duty is to 

disclose the material which has been gathered by the 

prosecution in the course of its investigation. It does not 

follow that only such material need be disclosed. There 

may be other material.“ 

138 


CACV 912/2000 


“…applying both the ‘materiality test‘ and the primary 

duty principle to the documents not disclosed in this case, 

I am satisfied, firstly, in relation to (ii) to (iii), that…failure 

to disclose does not amount to a breach of natural justice 

resulting in an unfair trial.…The District Court transcript 

was made available in the sense that the applicants were 

fully aware of its existence and were advised as to how 

they could acquire a copy. The immunity documents 

concerned only the District Court proceedings. The terms 

of the witnesses‘ immunity in giving evidence against four 

other defendants in different proceedings could not, in my 

judgment, be of such relevance to the disciplinary 

proceedings to the extent that a failure to disclose them 

would or might result in justice not being done.“ 

139 


CACV 912/2000 


“…in relation to (i) above, I am…satisfied that nondisclosure 

does not amount to a breach of natural justice 

for the purpose of these proceedings…the applicants‘ 

complaint amounts to a failure by the Prosecutor to seek 

out and collect material which did not form part of her 

case. This was not her duty. It cannot be said, in this case, 

that her failure to do something which she was under no 

duty to do, amounts to unfair conduct or a breach of 

natural justice.“ 

140


• hearing: 

– opportunity to make representation 

-right to last word 

– oral or written?: oral hearing if evidence is 

in dispute or credibility of witness is in 

question 

– presence of all parties 

Chan Tak Shing v. Chief Executive of the HKSAR 

CACV No. 270 of 1998 

• Chan was ordered to retire from the civil 

service by the Chief Executive on the basis of 

section 12 of Public Service (Administration) 

Order. 

• Chan applied for judicial review against the 

decision of the Chief Executive. 

• Any breach of the rule of fair hearing? 

141 

142 



Section 12 of Public Service (Administration) Order. 

“The Chief Executive may, at any time if it is 

represented to him that the retirement of an officer is 

desirable in the public interest, call for a report from 

the head of any department in which the officer has 

served. The officer shall be informed of the grounds on 

which his retirement is contemplated under this section 

and be given an opportunity to make representations.“ 

143 



Documents submitted to the Chief Executive: 

(a) details of the robbery and police investigations; 

(b) a letter from the Secretary for the Civil Service 

to Chan, stating that consideration was being given 

to requiring him to retire and explaining the reason; 

(c) an answer from Chan containing his comments 

and representations upon the letter denying his 

alleged involvement in the robbery; 

(d) an undated, un-addressed and unsigned 

document headed “Comments on representation 

by Chan. 

144




“It is said for the officer that without first calling for such a 

‘report‘ as is mentioned in section 12 the CE was not 

entitled to require the officer to retire from the public 

service….Section 12(2), properly construed, must be read 

as follows:…if there is no such report, because the CE, 

seeing no point in it, has not called for one, he (the CE) 

may proceed on the basis of the representations made to 

him alone.“ 

145 




“Section 12 does appear to treat the officer as the one who has 

the last word…the officer here was not given any opportunity 

to consider the submission in reply, and so did not have the 

last word…this was unfair. The CE had before him, in the form 

of the submission in reply, a document calculated to work to the 

prejudice of the officer‘s case, a document (whatever its 

provenance) which the officer had not been shown and with the 

content of which he was given no opportunity to deal. The fact 

that the document contained no new ground of complaint 

against the officer and no new facts makes no difference. Nor 

does the fact that the officer knew perfectly well what was the 

case made against him. No person with any power of 

adjudication may hear evidence or (as here) ‘receive 

representations from one side behind the back of the other‘.“ 

146 

Lawe William Enterprises Ltd, Re an application for 

judicial review [1990] HKLR 365 

• The Listing Division was established by the Hong Kong Stock 

Exchange Ltd. to administer and supervise compliance with the 

Exchange Listing Rules. 

• The requirements of the Exchange Listing Rules are designed to 

ensure that investors have and can maintain confidence in listed 

securities, and to afford additional assurance of their interest 

beyond that available to them by law. 

• The Exchange Listing Rules provides that: “…the Listing 

Committee reserves the right to suspend or cancel the listing of 

the Company on the Exchange if: (1) the Listing Committee 

considers there is insufficient public interest in the Company, e.g. 

insufficient shares are in the hands of the public; (2) any of the 

terms and conditions stated in these rules or the Listing 

Agreement are not complied with; (3) the company becomes a 

subsidiary of any other company; or (4) the Listing Committee, 

in its absolute discretion, considers that the removal of the 

Company from listing is in the interest of the public.“ 

147 



• On Investment Co. Ltd., was a public company. Trading in the 

On Investment Co. Ltd.‘s shares on the Hong Kong Stock 

Exchange Ltd. was suspended at its own request. 

• Ng obtained a controlling interest in the On Investment Co. Ltd 

when he acquired 46.59% of the issued share capital. 

• The Hong Kong Stock Exchange Ltd. announced that the On 

Investment Co. Ltd. was no longer suitable for listing because of 

the size or nature of its existing businesses. 

• On Investment Co. Ltd. was notified that the listing of their 

securities on the Exchange will be cancelled unless they have, 

within six months from the date of the announcement, a business 

which is able to satisfy the Exchange‘s normal requirements for 

listing or have finalised proposals in writing which are acceptable 

to the Exchange to acquire such a business. 

148



• Written proposals for the reactivation of the On 

Investment Co. Ltd. were submitted by Ng to the Hong 

Kong Stock Exchange Ltd. which set out the principal 

activities of the company which included property 

investment, other investment business and insurance 

agency business. 

• Details of the proposed directors and various properties to 

be injected by Ng were also supplied. 

• It was further stated that the On Investment Co. Ltd. 

would seek new opportunities for business development in 

related fields such as property construction and 

management, the supply of materials and services to the 

construction industry and the manufacture and distribution 

of home and office furnishings and furniture. 



• The proposals for reactivation were considered by the 

Listing Committee. The application was rejected and the 

On Investment Co. Ltd. was informed by the Hong Kong 

Stock Exchange Ltd. of the Listing Committee‘s decision 

and that the On Investment Co. Ltd. would be de-listed. 

• The On Investment Co. Ltd. applied for judicial review 

against the decision of the Listing Committee of the Hong 

Kong Stock Exchange Ltd. 


149 

150 




“As there is no statutory or contractual right for an oral 

hearing I have to determine whether the failure by the 

Listing Committee to hold an oral hearing amounts to a 

breach of the rules of natural justice. Whilst the applicant 

complained that it did not have an opportunity to put 

forward further information to the Listing Committee, no 

suggestion has been made as to what additional facts they 

wished to bring to the Committee‘s notice...However, the 

applicant, as I have said, put forward no reasons why an 

oral hearing was necessary. In my judgment, there was no 

necessity to grant an oral hearing so that there was no breach 

of the rules of natural justice.“ 

151 

Lam Kai Hing and Others v Hong Kong Housing 

Authority MP No. 1923 of 1990 

• The Hong Kong Housing Authority served notices to 

quit on the tenants of a factory estate pursuant to s 

19(1)(b) of the Housing Ordinance (Cap 283). 

• The Authority had decided that the building was 

beyond economic repair and needed to be 

demolished. 

• Section 20 of the Ordinance gives a right of appeal to 

the tenant who has received a notice to quit under s 

19(1)(b). The Tenancy Appeals Committee 

responsible for hearing the appeal may confirm, 

amend, suspend or cancel the notice to quit. 

• Appeals were lodged by the tenants. 

• There was a hearing by the Tenancy Appeals 

Committee. 

152



• The only paper placed before the Tenancy Appeals Committee 

by the Housing Authority was Paper No AC9/90, a copy of 

which was supplied to the tenants before the hearing. 

• This set out the background to the matter leading up to the 

service of the notices to quit. 

• It made reference to a number of papers by other committees 

of the Authority, in particular, Paper No MOC6/89, by the 

Management and Operations Committee, Paper No BC68/89 

by the Buildings Committee and Paper No CPC25/89, by the 

Commercial Properties Committee. These other papers were 

not placed before the Tenancy Appeals Committee. Paper No 

AC9/90 also contained submissions by the Housing Authority 

that the block was beyond economic repair and should be 

demolished taking into account the age and structural 

deficiency. 

153 



• During the hearing, the Chairman of the Tenancy Appeals 

Committee said that the Tenancy Appeals Committee would 

not go into the details of the structural survey, etc. at the 

hearing. 

• However, she could appreciate that, as public money was 

involved, the cost of repairing a structurally deficient block 

should be evaluated against the alternative of demolishing it. 

• The tenants were also seeking in the hearing, as an alternative, 

a further grace period of one year before quitting their units. 

• After hearing the submission from the Housing Authority and 

the tenants, the Tenancy Appeals Committee sat in a meeting 

by itself to discuss the matters. 

• The Tenancy Appeals Committee initially agreed that, while 

the notices to quit should be confirmed, the possibility of 

granting a longer grace period for the affected tenants should 

be explored. 

154 



• On the invitation of the Tenancy Appeals Committee, relevant 

Housing Department staff returned to the meeting. 

• The representative of the Housing Authority reiterated that the 

assessment made of the structural condition in April 1989 was 

such that a deadline should be set for evacuation. 

• One of the members of the Tenancy Appeals Committee added 

that the Housing Department had, in its submission to the CPC 

(Paper No CPC22/90), reaffirmed the risk of structural failure 

and considered it imperative for this building to be cleared as 

soon as possible. 

• After further deliberations, the Tenancy Appeals Committee 

decided to confirm the notices to quit served on the tenants. 

• The tenants applied for judicial review against the decision of 

the Tenancy Appeals Committee. 

• Any breach of the rules of fair hearing? 

155 




“In order to reach a decision on whether to confirm, amend, suspend or 

cancel the notices to quit, the Tenancy Appeals Committee must examine 

the reasons why the leases were being terminated by the notices to quit. 

The requirement that a person exercising quasi-judicial functions must 

base his decision on evidence means no more than it must be based upon 

material which tends logically to show the existence or non-existence of 

facts relevant to the issue to be determined, or to show the likelihood or 

unlikelihood of the occurrence of some future event the occurrence of 

which would be relevant. It means that he must not spin a coin or consult 

an astrologer, but he may take into account any material which, as a 

matter of reason, has some probative value in the sense mentioned above. 

If it is capable of having any probative value, the weight to be attached to 

it is a matter for the person to whom Parliament has entrusted the 

responsibility of deciding the issue. The supervisory jurisdiction of the 

High Court does not entitle it to usurp this responsibility and to 

substitute its own view for his. 

I am satisfied that there was no material of a probative value before the 

Tenancy Appeals Committee to justify the conclusion that Block 1 was 

156 

beyond economic repair. “





“I am satisfied that the Tenancy Appeals Committee did not reach a 

• legal representation 

final decision to confirm the notices to quit until after it had heard 

-no absolute denial 

further submissions in the absence of the tenants. 

-Article 35 of the Basic Law is not applicable 

…Quite clearly, the tenants were deprived of the opportunity of 

hearing and commenting on the further submissions of the 

-Article 10 of the Bill of Rights: applicable to 

respondent. Further, the Paper No CPC22/90 referred to…was never 

administrative bodies determining rights and 

brought to the tenants‘ attention. The tenants may well have tried to 

obligations in suits at law 

persuade the Tenancy Appeals Committee not to finalize their tentative 

-a matter of discretion: whether fairness demands 

or initial decision to confirm the notices to quit but instead, to grant 

-factors to consider: seriousness of charges and penalty, 

them a suspension of the same for some period. They may or may not 

any point of law, capacity to 

have succeeded. That is not the point. The point is they were deprived 

represent one‘s case, procedural 

of the opportunity of hearing the further submissions and of being 

difficulty, time, fairness between 

heard thereon. They should have been given such an opportunity. Fair 

the decision maker and the person 

play demands this. In my judgment, there was a clear breach of the 

affected 

rules of natural justice which seriously flaws the decision made by 

-proportionality in any procedural restrictions imposed 

the Tenancy Appeals Committee.“ 157 

158 

Art. 35 of the Basic Law: 

“Hong Kong residents shall have the right to 

confidential legal advice, access to the courts, 

choice of lawyers for timely protection of their 

lawful rights and interests or for representation 

in the courts, and to judicial remedies. 

Hong Kong residents shall have the right to 

institute legal proceedings in the courts against 

the acts of the executive authorities and their 

personnel.“ 

The Stock Exchange of Hong Kong Ltd v New World 

Development Co Ltd FACV22/2005 

Decision of the Court of Final Appeal: 

“Interpreted in the light of the Basic Law as a 

whole, Art 35 only applies to courts of law, that is, 

the courts exercising the independent judicial 

power conferred on the Region by the Basic Law. 

The Disciplinary Committee is not a court of law. 

Art 35 therefore does not apply to it.“ 

159 

160

Lam Siu Po v. Commissioner of Police 

FACV No. 9 of 2008 

• A police constable, Lam, engaged in stock market 

dealings. He lost heavily, found himself deeply in debt, 

petitioned for his own bankruptcy and was adjudicated 

bankrupt in September 2000. 

• Consequently he was charged in December that year 

with a disciplinary offence. 

• There were two disciplinary hearings. 

• The first hearing ended in Lam being convicted on 2 

March 2001. But that conviction was set aside by the 

Force Discipline Officer for procedural irregularity. 

• The police officer who had represented the appellant at 

the first hearing was not available at the second hearing, 

which commenced on 14 December 2001. 

161 



• That police officer was replaced by Lam‘s another 

representative. But Lam lost confidence in that 

replacement. And after being told that he could not 

engage a legal practitioner to defend him, the appellant 

appeared in person at the second hearing. 

• Regulation 9(11) and (12) of the Police (Discipline) 

Regulations provided that: 

“(11) A defaulter may be represented by – 

(a) an inspector or other junior police officer of his 

choice; or (b) any other police officer of his choice who 

is qualified as a barrister or solicitor, 

who may conduct the defence on his behalf. 

(12) Subject to paragraph (11), no barrister or solicitor 

may appear on behalf of the defaulter.“ 

162 



• On 27 March 2002 Lam was again 

convicted. The penalty imposed on him was 

compulsory retirement with deferred benefits. 

• Whether the absolute bar to legal 

representation is constitutional? 



• Article 10 of Bill of Rights provides that: 

“All persons shall be equal before the courts and tribunals. In the 

determination of any criminal charge against him, or of his rights 

and obligations in a suit at law, everyone shall be entitled to a 

fair and public hearing by a competent, independent and 

impartial tribunal established by law. The press and the public 

may be excluded from all or part of a trial for reasons of morals, 

public order (ordre public) or national security in a democratic 

society, or when the interest of the private lives of the parties so 

requires, or to the extent strictly necessary in the opinion of the 

court in special circumstances where publicity would prejudice 

the interests of justice; but any judgment rendered in a criminal 

case or in a suit at law shall be made public except where the 

interest of juvenile persons otherwise requires or the proceedings 

concern matrimonial disputes or the guardianship of children.“ 

163 

164




“The fair hearing clause of art.10 of the Bill of Rights 

guarantees the fairness of the hearings to which it 

applies. Whether it applies to disciplinary proceedings 

depends on whether such proceedings are 

determinations of rights and obligations in suits at 

law within its meaning. 

If they are, then the fairness of such proceedings is 

secure. Let it be remembered that fairness does not 

always carry a right to be legally represented. It only 

carries a right to be legally represented when denying 

that right would be unfair. The rights typically 

involved in disciplinary proceedings are important 

ones extending to the right to remain in a profession, 

service or occupation.“ 

165 




“In my view, disciplinary proceedings – whether in respect 

of professions, disciplined services or occupations – are 

determinations of rights and obligations in suits at law 

within the meaning of art.10. 

As a bar to legal representation at defaulter hearings no 

matter what the circumstance, the reg.9(11) and (12) bar 

was inconsistent with the fair hearing clause of art.10 of 

the Bill of Rights. Accordingly the reg.9(11) and (12) bar 

was repealed…Legal representation at defaulter hearings is 

now a matter of discretion. Whether a defaulter should be 

permitted to be legally represented depends on whether 

fairness so requires in all the circumstances. That is 

primarily for the disciplinary tribunal to assess. And no 

court would disturb such an assessment except for plainly 

compelling reasons.“ 

166 



• NW is a company listed on the stock exchange operated by 

the Stock Exchange HK (SEHK). 

• SEHK‘s Board has arranged for its functions and powers, 

including operation and enforcement of the Listing Rules, to 

be discharged by a committee known as the Listing 

Committee. 

• The Listing Committee has in turn arranged for certain 

functions to be discharged by the Listing Division. Thus, the 

Listing Division administers and enforces the Listing Rules, 

its duties including the investigation and pursuit of 

disciplinary matters. 

• Where the Listing Division believes that an infringement 

has occurred, it reports to the Listing Committee which, 

when sitting in a disciplinary capacity, comprises a subcommittee 

(Disciplinary Committee) with a quorum of five 

members, all drawn from the Listing Committee. 

167 



• As a condition of being allowed to trade their 

shares on the Stock Exchange, issuing 

companies must enter into an agreement with 

SEHK, known as a Listing Agreement which sets 

out certain covenants, including an undertaking 

to comply with the Listing Rules. NW entered 

into such an agreement. 

• The Listing Division made a report to the Listing 

Committee that NW had breached certain 

obligations to the Stock Exchange and 

recommended to commence disciplinary 

proceedings against NW. 

168



• Before the disciplinary hearing commenced, the 

chairman of the Disciplinary Committee gave the 

procedural direction that “Legal advisers will not be 

permitted to address the [Disciplinary] Committee 

(whether in respect of oral submissions, the examination 

of witnesses of fact or otherwise).“ 


169 




“…there is no absolute right to have counsel address the 

tribunal or to question witnesses, any such entitlement 

depending on whether such procedures are required as a matter 

of fairness. The matters [to be considered] are: the seriousness 

of the charge and potential penalty; whether any points of law 

are likely to arise; the capacity of the individual to present his 

own case; procedural difficulties; the need for reasonable 

speed in making the adjudication; and the need for fairness 

among the individuals concerned…no list of such factors can 

be comprehensive. The common law principles of fairness 

operate flexibly, requiring the tribunal to respond reasonably to 

the requirements of fairness arising in each case, balancing any 

competing interests and considering what, if any, limits may 

proportionately be imposed on legal representation in 

consequence.“ 

170 




“It is obviously true that the judicial review application was launched 

at a very early stage in the disciplinary proceedings. 

In my view, it was perfectly within the chairman‘s discretion to take 

this wait-and-see position without any necessary infringement of the 

principles of fairness resulting. In leaving open the question of 

counsel examining witnesses, he did not exclude that course. He was 

merely deferring his decision until the issues and scope of the 

proceedings were better defined. If and when notice is given of the 

witnesses to be called, with disclosure of the substance of their 

evidence, the respondents could apply (possibly with support from the 

Listing Division, in the light of what they have previously said) for 

them to be dealt with by counsel, stating the grounds relied on. Of 

course if in future, the chairman or the Disciplinary Committee should 

give directions that are incompatible with the principles of fairness 

there would be grounds for judicial review to be initiated at an 

appropriate stage.“ 


• Evidence 

-burden of proof: presumption that statutory duties 

are duly and properly performed (See section 38, 39, 

40, 41, 43 of Interpretation and General Clauses 

Ordinance , Cap. 1) 

-standard of proof: 

-balance of probability 

-strength of evidence 

-admissibility of evidence 

171 172

A Solicitor v. The Law Society of Hong Kong 


• T, a solicitor was admitted in 1992. For a time thereafter 

he practised as a consultant. Then in October 1997 he 

established his own firm as sole proprietor. Consequent 

upon an application made by the Law Society in June 

1999, he appeared before the Solicitors Disciplinary 

Tribunal on eight complaints of professional misconduct. 

• The Tribunal found all eight complaints proved. As to the 

standard of proof, the Tribunal said that it applied “the 

civil standard albeit with the higher degree of 

probability commensurate with the gravity of the 

allegations”. 

173 

A Solicitor v. The Law Society of Hong Kong 



“…the standard of proof for disciplinary proceedings in 

Hong Kong is a preponderance of probability….The more 

serious the act or omission alleged, the more inherently 

improbable must it be regarded. And the more inherently 

improbable it is regarded, the more compelling will be the 

evidence needed to prove it on a preponderance of 

probability. If that is properly appreciated and applied in a 

fair-minded manner, it will provide an appropriate approach 

to proof in disciplinary proceedings. Such an approach will 

be duly conducive to serving the public interest by 

maintaining standards within the professions and the 

services while, at the same time, protecting their members 

from unjust condemnation.” 

174 

Hui Wei Lee v The Medical Council of Hong Kong 

CACV114/1993 

• Hui, a registered medical practitioner, had a charge of 

misconduct in a professional respect found proved against 

her by the Medical Council. She was removed from the 

register for a period of 18 months. 

• An undercover woman detective police constable, Yu, gave 

evidence that, at Hui‘s clinic, on the occasion of the last of 

her three visits to that clinic, Hui agreed to perform an 

illegal abortion on her for $2,000, and had gone so far as to 

instruct her to lie down on a bed for her to be anesthetized 

for that abortion. Hui denied agreeing to perform an 

abortion on Yu. Her reason for asking Yu to lie on the bed 

was “trying to cheat her into permitting me to try to find out 

what was wrong with her ...“. 

• During the disciplinary hearing, the Medical Council 

excluded evidence put forward by Hui. 

175 


CACV114/1993 

• The evidence, which was excluded, was of telephone 

conversations between Hui and two doctors, one of them a 

colleague who used the clinic and the other a surgeon to whom 

she from time to time referred patients. 

• Their testimony, it was said, would have been of telephone 

conversations with Hui after Yu‘s second visit to Hui‘s clinic but 

before the last one. 

• They would say that Hui had told them that she had a strange 

patient whom she suspected was not really pregnant but might 

have a psychological problem, and that she intended to induce 

her to submit to a physical examination with a view to seeing 

what the real problem was. 

• Apart from the testimony of these two, the excluded evidence 

would have included Hui‘s own evidence of the conversations. 

• Hui applied for judicial review against the decision of the 

Medical Council. 


176


CACV114/1993 


“It seems to be perfectly legitimate to take the view - and indeed it may be 

inevitable to take the view - that a doctor, in the management of his or her 

patients, will sometimes consult colleagues. The excluded evidence was to 

be a part of the explanation which the appellant was offering for rather 

strange conduct on her part, which certainly called for an explanation. What 

passed between her and her colleagues in regard to WDPC Leung would be 

a part of a course of dealings. And what passed between her and WDPC 

Leung was likewise a part of that course of dealings. The whole course of 

dealings constituted the res gestae here: in other words, the relevant set of 

events. In the circumstances, the evidence which was excluded was 

admissible as part of the res gestae. Its exclusion was therefore wrong in 

law. 

Now, if evidence which was wrongly excluded was incapable of making any 

difference to the result, then of course its exclusion would not affect the 

result. But it seems to me quite impossible to say that this evidence could 

not have made any difference to the result. …Therefore, its wrongful 

exclusion is fatal to the Council‘s finding against the appellant and to the 

order made against her pursuant to that finding. “ 177 


• cross-examination 

-cross-examination should be allowed if the 

credit of the witness is in issue 

178 

Ngai Kin Wah, Re MP2911 of 1985 

• Ngai was a customs officer. He was alleged to have obtained the 

release of certain valuable goods by requesting another customs 

officer, Kwok, to stamp two release forms whilst off-duty bearing 

the purported signature of a senior inspector, Yu. 

• Ngai was charged with the offence of prejudicing the good order 

and discipline of the service and appeared before the disciplinary 

tribunal of the Customs and Excise Department. 

• The prosecution did not called Yu to give evidence. 

• The prosecutor was allowed to put leading questions to Kwok. 

• Although Kwok‘s statements had been given to Ngai, the 

adjudicator prevented Ngai from cross-examining Kwok on his 

statements. Ngai was only allowed to ask questions to what 

Kwok had said in the examination-in-chief. 

• At the end of the prosecution evidence Ngai called his witnesses, 

but declined to give evidence himself. 

• The adjudicator, then, himself called a senior inspector, Lee, to 

give expert evidence on the proper processing of shipment 

release forms by customs officers. 

179 


• The adjudicator did not allow Ngai or the prosecution 

to question Lee, assuring Ngai that the evidence would 

not be admitted against him. 

• At the conclusion of the hearing the adjudicator said 

that on the whole the evidence substantiated the charge 

and that at no stage in the proceedings had Ngai 

denied the allegation in respect of the two release 

forms. 

• He also stated that the evidence of Lee was very 

informative and useful in his deliberation of the case. 

• Accordingly, he found Ngai‘s conduct highly improper 

and the charge made out. 

• Ngai was dismissed from the service as a result. 

• Ngai applied for judicial review of the decision of the 

adjudicator. 


180



“The applicant complains that the prosecutor was allowed to put 

leading questions to Mr Kwok…But I do not consider that this 

resulted in any unfairness. This unfortunate method of adducing 

evidence did not affect the essential issues of the case and, in any 

event, would merely go to the reliability or weight to be given to 

such evidence…the…reason for calling Inspector Lee as a witness 

was to prove that the alleged conduct of the applicant was 

‘improper‘. On that aspect of his evidence alone, the adjudicator 

should have permitted cross-examination of Inspector Lee. 

…complaint is made of the adjudicator's refusal to allow the 

applicant to cross-examine Kwok Kong-wing with regard to his 

statement…it deprived the applicant of an opportunity to 

undermine the credibility of Kwok Kong-wing by bringing out 

inconsistencies and possible contradictions between his evidence.” 


• Flexible: the more serious is the nature of the 

interest affected by the decision, the higher 

should be the degree of fairness 

181 

182 

Secretary for Security v. Sakthevel Prabakar 

FACV No. 16 of 2003 

• Prabakar is a national of Sri Lanka and arrived in Hong Kong. 

• The Director of Immigration served on Prabakar a notice that a 

deportation order against him back to Sri Lanka was being 

considered in accordance with section 20 of the Immigration 

Ordinance. 

• Prabakar wrote to the Director of Immigration requesting the 

Director to consider his case favourably. In the letter, he gave 

details to justify his fear of torture if returned to Sri Lanka. 

• He sought refugee status from the United Nations High 

Commissioner for Refugees but was rejected. No explanation was 

provided. 

• The Secretary for Security made the deportation order against 

Prabakar. Both the Director and the Secretary had not given any 

consideration as to whether Prabakar’s claim that he would be 

subjected to torture if returned was well-founded. Instead, they 

relied wholly on UNHCR’s unexplained refusal of refugee status. 

• Prabakar applied for judicial review to challenge the decision of the 

Secretary. 

183 

Secretary for Security v. Sakthevel Prabakar 

FACV No. 16 of 2003 


“To him (a claimant under the Convention Against 

Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment), life and limb are in 

jeopardy and his fundamental human right not to be 

subjected to torture is involved. Accordingly, high 

standards of fairness must be demanded in the making 

of such a determination.” 

184

FB and others v. Director of Immigration and Secretary 

for Security HCAL 51, 105, 106, 107, 125, 126 of 2007 

• Following the decision of the CFA in Prabakar, the 

Department of Immigration established a procedure for 

the consideration of claims under the provisions of the 

Convention Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment, that had been made 

at that time, or might be made in the future. 

• The new scheme was under challenge in this application 

of judicial review by torture claimants. 


185 



ISSUES: 

(a) Whether it is procedurally unfair for the Immigration 

Department, pursuant to a blanket policy, to have 

declined to permit lawyers to be present during the 

completion of a questionnaire or the conduct of 

interviews that are part of the screening process? 

(b) Whether it is procedurally unfair for the Immigration 

Department, pursuant to a blanket policy, to have 

declined to provide FB with legal representation 

during the screening process? 

(c) Whether it is procedurally unfair for the person making 

the Convention determination (the decision-maker), is 

a different person to that conducting the interviews? 

186 



ISSUES: 

(d) Whether it is procedurally unfair for the persons 

conducting interviews, and making Convention 

determinations, or considering and deciding upon 

appeals, are insufficiently guided or instructed in the 

nature of Convention screening and decision-making? 

(e) Whether it is procedurally unfair for the conducting of 

Convention screening interviews by officers of the 

Department, which Department is duty-bound to 

enforce and implement the immigration policies of the 

Government of the HKSARG, raises an inherent 

conflict of interest, giving rise to a lack of impartiality 

and independence on the part of interviewers and 

decision-makers? 

187 



ISSUES: 

(f) Whether it is procedurally unfair for the failure to 

provide for an oral hearing at the petition (appeal) 

stage, following the rejection of a claim? 

(g) Whether it is procedurally unfair for the failure of 

the Secretary to give reasons for the refusal of a 

petition? 

188




“By applying a blanket policy of denial of legal representation 

to Convention claimants, and only allowing ad hoc exceptions, 

the Respondents have applied an unlawful policy that does not 

meet the high standards of fairness required…I have no doubt 

at all that the seriousness and complexity of the issues to be 

considered are such that a Convention claimant ought to have 

access to legal advice throughout the process. 

…where a Convention claimant is otherwise unable to pay for 

his legal assistance, by denying free legal assistance, whether 

it be through the Duty Lawyer Scheme, or the Legal Aid 

Department, the Respondents had effectively denied the 

claimant the right to that legal assistance, and have set in 

place an unfair policy which fails to achieve the required high 

standard of fairness.” 

189 




“By setting in place a system where the decision on the claim is not 

made by the examining officer but by some other more senior 

Immigration Officers, two or three steps removed from the 

examining officer, the Respondents have established an inherently 

unfair system of dealing with Convention claims. 

If the examining officer is not the decision-maker, then the decisionmaker 

himself must be demonstrated to have received sufficient 

training in order to be able to make an informed decision. There is 

no evidence that the decision-makers have received appropriate 

training. 

Consequently, I hold that so long as the examining officer is not the 

decision-maker and there is no training in respect of the decisionmaker, 

the system put in place by the Respondents does not meet the 

high standards of fairness required.” 

190 




“I am not satisfied that the Applicants’ evidence establishes systemic 

bias to the extent that I can say, on the balance of probabilities, that 

there is a real risk of unlawful bias on the part of either the examining 

officers or the decision-makers, or an unlawful conflict of interest. 

In my view that is no basis to deny an oral hearing. The petitioner is 

perfectly entitled to say…in support of his petition, that inappropriate 

weight has been accorded to some aspect of the evidence by the 

decision-maker, or that the decision-maker has rejected the petitioner’s 

credit for in appropriate reasons. These are grounds which do not 

require additional material to be presented. They are matters which 

may well be argued in an oral hearing…by establishing a system in 

which a petitioner is denied both an oral hearing in respect of his 

petition and the right to legal representation in the oral hearing, the 

system does not reach a high standard of fairness.” 

191 




“I am satisfied that both the high standards of fairness 

required in the assessment of Convention claims, and the 

rules of natural justice, require that the Secretary in 

dealing with a petition must give adequate reasons for that 

decision.” 

192


• Consultation 

-Any right to be consulted? 

-statutory 

-common law ? 


• Consultation 

-What is proper consultation? 

• undertaken at a time when proposals are still 

at a formative stage; 

• sufficient reasons for the proposal must be 

given to allow those consulted to give 

intelligent consideration and response; 

• adequate time must be given for consideration 

and response 

• the product of consultation must be 

conscientiously taken into account when the 

ultimate decision is taken. 

193 

194 

West Kowloon Cultural District Authority 

Ordinance, Cap. 601 

Section 19 Public Consultation: 

“Without prejudice to section 21(3)(a), the 

Authority shall, in relation to matters concerning 

the development or operation of arts and cultural 

facilities, related facilities, ancillary facilities and 

any other matters as the Authority considers fit, 

consult the public at such time and in such 

manner as it considers appropriate.” 

Council of Civil Service Unions v. Minister for 

the Civil Services [1985] A.C. 374 

195 196



• Government Communications Headquarters ("GCHQ") was a 

branch of the public service under the Foreign and 

Commonwealth Office, the main functions of which are to ensure 

the security of the United Kingdom military and official 

communications and to provide signals intelligence for the 

Government. 

• Since 1947, when GCHQ was established in its present form, all 

the staff employed there have been permitted, and indeed 

encouraged, to belong to national trade unions, and most of them 

did so. Six unions were represented at GCHQ. Prior consultation 

had been conducted when conditions of service were to be 

significantly altered. 

• In 1984, the Secretary of State for Foreign and Commonwealth 

Affairs announced in the House of Commons that the 

Government had decided to introduce with immediate effect new 

conditions of service for staff at GCHQ, the effect of which was 

that they would no longer be permitted to belong to national trade 

unions but would be permitted to belong only to a departmental 

staff association approved by the director of GCHQ. 197 



• The mechanism on which the Minister for the Civil Service relied 

to alter the terms and conditions of service at GCHQ was an 

"instruction" issued by her under Article 4 of the Civil Service 

Order in Council 1982. That article provides as follows: 

"As regards Her Majesty's Home Civil Service - (a) the Minister 

for the Civil Service may from time to time make regulations or 

give instructions - ... (ii) for controlling the conduct of the 

service, and providing for the classification of all persons 

employed therein and ... the conditions of service of all such 

persons; ..." 


198 



LORD FRASER OF TULLYBELTON 

“But even where a person claiming some benefit or privilege has no legal 

right to it, as a matter of private law, he may have a legitimate expectation 

of receiving the benefit or privilege, and, if so, the courts will protect his 

expectation by judicial review as a matter of public law. This subject has 

been fully explained by my noble and learned friend, Lord Diplock, in 

O‘Reilly v. Mackman [1983] 2 A.C. 237 and I need not repeat what he has 

so recently said. Legitimate, or reasonable, expectation may arise either 

from an express promise given on behalf of a public authority or from the 

existence of a regular practice which the claimant can reasonably expect 

to continue. Examples of the former type of expectation are Reg. v. 

Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators’ 

Association [1972] 2 Q.B. 299 and Attorney-General of Hong Kong v. Ng 

Yuen Shiu [1983] 2 A.C. 629. (I agree with Lord Diplock‘s view, expressed 

in the speech in this appeal, that ‘legitimate’ is to be preferred to 

‘reasonable’ in this context. I was responsible for using the word 

‘reasonable’ for the reason explained in Ng Yuen Shiu, but it was intended 

only to be exegetical of ‘legitimate.) 

199 



LORD FRASER OF TULLYBELTON 

“The submission on behalf of the appellants is that the present case is 

of the latter type. The test of that is whether the practice of prior 

consultation of the staff on significant changes in their conditions 

of service was so well established by 1983 that it would be unfair or 

inconsistent with good administration for the Government to depart 

from the practice in this case. Legitimate expectations such as are 

now under consideration will always relate to a benefit or privilege to 

which the claimant has no right in private law, and it may even be to 

one which conflicts with his private law rights. In the present case 

the evidence shows that, ever since GCHQ began in 1947, prior 

consultation has been the invariable rule when conditions of 

service were to be significantly altered. Accordingly in my opinion if 

there had been no question of national security involved, the 

appellants would have had a legitimate expectation that the minister 

would consult them before issuing the instruction of 22 December 

1983.” 200

Chit Fai Motors Company Limited v. Commissioner for 

Transport HCAL 146/2002; CACV142/2003 

• Chit Fai Co. is a commercial operator of public light buses. 

It is licenced to operate its buses in terms of franchises 

obtained in terms of the Public Bus Services Ordinance, Cap. 

230. Two of its licenses (numbers 3686C and 9101C) 

authorise Chit Fai Co. to operate services that feed the 

Whampoa and Hung Hom areas of Kowloon. The licences 

restrict the Chit Chit Fai Co. to specified routes at specified 

times. They also state the fares that may be charged. 

• Not all public light bus services, however, need to obtain 

franchises under the Public Bus Services Ordinance in order 

to operate lawfully. 

• In terms of s.27 of the Road Traffic Ordinance, Cap.374, the 

Commissioner may issue what are called passenger service 

licences. Typically, they are limited in nature and, by way of 

example, provide for the operation of services which carry 

students, handicapped persons or employees of the operator. 

201 



• In exercising his discretion under s.27 of the Road Traffic 

Ordinance to issue these non-franchised licences, the 

Commissioner is obliged to take into account a number of 

factors. They include such matters as the level of service 

already being provided, traffic conditions in the area, the 

need for the particular service being sought and the intended 

standard of any such service. 

• Since 1998, the KC Co. was given the permission to operate 

free bus services to and from a large commercial 

development called Whampoa Wonderworld (WWW) the 

Whampoa and Hung Hom areas. A renewal was granted in 

February 2001. On 13 April 2002, the Commissioner gave 

permission to KC Co. to operate a free shuttle service from 

WWW to Homantin and Chun See Mei Chuen in Tokwawan. 

• After an extension granted in July, the period of approval 

was extended until 12 September 2002. 

202 



• In or about July 2001 the Chit Fai Co. became aware of such a 

non-franchised bus service operating in the Whampoa and Hung 

Hom areas. The Chit Fai Co. complained to the Commissioner 

that this service was operating along fixed routes and was 

attracting passengers who queued for the service at designated bus 

stops. 

• Chit Fai Co. regarded the operation of free bus services in Hung 

Hom as materially and adversely affecting the routes it was 

operating there. It had made substantial investment in terms of the 

provision of buses and staff in order to be able to run a regular and 

reliable service. It has been making complaints to the Transport 

Department since at least July 2001 and there has been lengthy 

correspondence on this matter. 

• The Commissioner agreed to investigate the matter, promising 

that if evidence was obtained to support the Chit Fai Co.’s 

allegations then enforcement action would be taken. 

203 



• However, by the end of 2001 the Chit Fai Co. had not received 

what it considered to be a satisfactory response from the 

Commissioner. 

• In an attempt to resolve matters, the Commissioner arranged a 

meeting at which the Chit Fai Co. and the sponsor of the nonfranchised 

shuttle service were both represented. 

• The meeting took place on 12 March 2002. The Chit Fai Co., the 

Transport Department and the Hutchison Whampoa Properties 

Limited attended the meeting. 

• Not until July 2002 was the Chit Fai Co. informed by the 

Commissioner that permission had been granted to KC Co. for the 

operation of the free bus services in the area and the permission 

was granted on 13 April 2001. 

• Do you think there is a duty for the commissioner to consult the 

Chit Co. before permission to operate free bus services was 

granted to the KC Co.? 

204




“…whether a duty did or did not lie on the Commissioner 

to consult with the applicant prior to reaching a decision 

whether or not to grant the licences in question. 

I have deliberated whether I should say something of the 

substantive issue.…If I found that there was a duty to 

consult then I would, while not granting a formal 

declaration, nevertheless for all practical purposes be 

giving an advisory judgment that the basis is there in law 

to compel the Commissioner to consult should the same or 

a similar issue arise at any time in the future. But such an 

advisory judgment is exactly what I have found would be 

not appropriate in this case.” 

205 




“I must reject the Commissioner's contention that the meeting 

constituted a sufficient exercise in consultation. It may have 

allowed the Commissioner to spell out his policy; it may have 

allowed the parties to state their positions. But consultation 

implies that the person affected will be able to make 

worthwhile representations. That cannot be done without 

knowing at least the gist of the case to be answered and 

without giving the opportunity for the representations to be 

prepared and to be presented. There is no evidence that at the 

meeting the applicant had any knowledge that formal licence 

applications had been made by the operator of the shuttle 

service. In the circumstances, it is difficult to see how, ignorant 

of what was taking place, relevant representations could have 

been prepared and presented.” 206 

Lam Yuet Mei v. Permanent Secretary for Education and Manpower 

of the Education and Manpower Bureau HCAL 36/2004) 

• Kin Tak Public School (the School) is a rural school 

situated at Lin Tong Mei Village in Sheung Shui, New 

Territories. 

• In the school year of 2002/03, it did not have any 

primary one class because there was insufficient 

number of student intake and no government grant was 

allocated for operating primary one class. 

• In the school year of 2003/04, the School also did not 

operate any primary one class. 

• The Primary One Admission (POA) system is operated 

by the Education and Manpower Bureau (EMB). The 

EMB adopted a policy to close down by phases those 

under-enrolled and high costs primary schools. 

• On 4 July 2002, the EMB decided that the School would 

be excluded from the POA School List for 2003/04. 207 



• In various occasions before 4 July 2002, officials of the 

EMB informally mentioned to the school management 

including the outgoing principal and the supervisor of 

the School of the Education Department’s intention to 

exclude the School from the POA 2003 School List. 

• No objection was received from the school management 

before the decision was made. 

• In September 2002, the new principal of the School, Mr 

Fong, became aware that the School was not included in 

the POA 2003 School List. 

• Mr Fong on behalf of the School wrote to the EMB 

requesting for the School to be put back onto the POA 

School List and to be allowed to recruit primary one 

students. 

208



• By a letter dated 27 September 2002, the Director of 

Education, the School’s request was refused. 

• On 2 November 2003, the EMB officers met with Mr 

Fong and two other school managers. Almost all parents 

of all the students were present. 

• Mr Fong, the school managers and all the parents 

present requested the EMB to allow the School to 

continue operation until the last class of students had 

graduated. 

• By a letter dated 10 December 2003, the Secretary for 

Education and Manpower gave notice to the School that 

the EMB would cease to provide grants to the School as 

from 1 September 2004. 

209 



• Lam is the mother of three children. Her eldest 

daughter was a student in the School, studying primary 3 

in the school year of 2003/04. Her second daughter 

started primary one in the school year of 2002/03. Her 

youngest son was due to start primary one in the school 

year of 2004/05. 

• Lam’s family lives near the School. Lam wished to have 

her son enrol with the School in the school year 

2004/05. 

• Lam challenged the decision made in July 2002 

removing the name of the School POA School List for 

the 2003/04 school year thereby terminating the School's 

right to recruit primary one students on the ground that 

there had been no or no proper consultation before it 

was made. 

• Any duty to consult? 210 




“For any consultation to be proper, it must be undertaken at a time 

when proposals are still at a formative stage; sufficient reasons for 

the proposal must be given to allow those consulted to give 

intelligent consideration and response; adequate time must be 

given for consideration and response; and the product of 

consultation must be conscientiously taken into account when the 

ultimate decision is taken. 

I am of the view that, to the extent that the School is affected by 

and has a legitimate interest in the decision to exclude it from the 

POA 2003 School List and the POA exercise, the School ought in 

the interests of fairness to have been consulted…In the present 

case, however, the steps taken by the Education Department before 

the decision was made in July 2002 to exclude the School from the 

POA 2003 School List hardly met the criteria…The School had not 

been afforded a proper opportunity to take a considered view and 

to make representations before the decision was taken.” 

211 




“Notwithstanding this, I consider that the applicant's challenge… 

cannot succeed…in considering whether the requirements of fairness 

have been met in this case, the Court should consider whether the 

overall procedure is a fair one and in the light of the purposes and 

objectives of consultation. When approaching the first decision on the 

broad consideration of fairness, the court should also have regard to 

the conduct of the Department since September 2002 and leading to 

the decision in December 2002 to maintain the July 2002 decision. 

The School was afforded an opportunity to make representations to 

the Department on and to draw to its attention, information about the 

School and its students, and the perceived impact of the decision upon 

the School and parents and students living in the village. Although in 

the end it decided to maintain its earlier decision, the Department had 

been prepared to re-consider its decision…this was a round of 

genuine and fair consultation…having regard to the process as a 

whole, it cannot be said that the requirements of fairness has not been 

attained.” 

212

Right to Reason 

213 

Right to Reason 

Benefits of giving reason: 

“First, it would impose desirable intellectual discipline and 

concentrate attention on the relevant issues. It would thus assist 

in ensuring that any decision is made on proper grounds and 

contribute to the effective disposal by the Tribunal of its work. 

Secondly, reasons would assist in demonstrating to the parties 

that the Tribunal has carried out its task properly and would 

enable them to decide on the appropriate course of action in the 

case at hand, including whether to appeal or apply for judicial 

review. It would also provide guidance in the future to the 

community and persons concerned in this area. Publishers as 

well as the law enforcement and prosecuting authorities would 

have a better understanding of the standards as applied by the 

Tribunal and would be in a better position to make their own 

decisions accordingly.“ 

(Oriental Daily Publisher Limited v. Commissioner for 

Television and Entertainment Licensing Authority FACC No. 1 

of 1998) 

214 


Benefits of giving reason: 

“Thirdly, the reasons given by the Tribunal will promote 

and enhance consistency in its decision making and assist 

the law enforcement and prosecuting authorities. I would 

observe that broad consistency in approach is important. 

Fourthly, the giving of reasons would demonstrate to the 

community that the Tribunal is functioning properly and this 

would engender public confidence.“ 


Television and Entertainment Licensing Authority FACC 

No. 1 of 1998) 


Statutory provision requiring reason be given: 

Building Ordinance, Cap. 123 

s.8E Building Authority to give reasons 

“The Building Authority is is required to give 

reasons in writing for a decision not to include, 

retain or restore a contractor's name in a register at 

the time of giving notice of the refusal.” 

215 

216


Any common law duty to give reason? 

“…the law does not at present recognise a general 

duty to give reasons. He found in the recent cases on 

judicial review a perceptible trend towards an 

insistence on greater openness of decision making 

and spoke of a continuing momentum.“ 

(Oriental Daily Publisher Limited v. Commissioner 

for Television and Entertainment Licensing 

Authority FACC No. 1 of 1998) 

217 

Kempster, J.A., Court of Appeal: 

“…the Hong Kong Immigration Tribunal was and is a fully judicial 

and non-domestic body when hearing such appeals as those of Lau 

Tak-pui, Lau Tak-mui and Yam Lai-san, that there was and is no right 

of appeal from its decisions and that, as Mr McCoy on their behalf has 

emphasized, it exercises powers affecting the liberty and residential 

and citizenship rights of appellants pursuant to statutory provisions of 

some complexity. These are special circumstances which, quite apart 

from any implication to be derived from the wording of s. 53D, as to 

which I express no opinion, require as a matter of fairness the 

provision of outline reasons showing to what issues the Tribunal has 

directed its mind and the evidence upon which it has based its 

conclusions…Turning then to the adequacy of the reasons …all the 

evidence germane to that issue had been considered. The conclusion 

that the applicants had not been born in Hong Kong was the basis of 

fact upon which the Tribunal determined that they did not enjoy a 

right of abode in the Colony. The requirements…of natural justice, 

being at least as stringent as any which may derive from the terms of 

s. 53D, were met.” 


[1992] 1 HKLR 374 

218 

Wong Wai Fan v Commissioner of Correctional 

Services [2000] 1 HKLRD C2 

• W was an officer in the Correctional Services Department. 

She was charged by the Commissioner of an offence 

contrary to the Prison Rules. 

• The hearing was chaired by an adjudicating officer who 

was a Superintendent in the Department and W was found 

guilty as charged. 

• W lodged an appeal to the Commissioner. The 

Commissioner directed that the whole of the evidence of 

this case be taken again by another adjudicating officer 

under Rule 255H of the Prison Rules. 

• The evidence was retaken in another hearing. 

• The Commissioner was not present in the second hearing. 

• He later decided that the appeal be dismissed without 

giving reasons. 

• Any duty to give reason? Was the reason adequate? 

219 

Wong Wai Fan v Commissioner of Correctional 

Services [2000] 1 HKLRD C2 

Decision of the Court of First Instance: 

“…I think the decision must be quashed. It is the failure by the 

Commissioner to give reasons for his decision. This ground has to be 

considered in the light of the procedural impropriety that had occurred 

in the second hearing. 

there is no general or primary obligation upon domestic tribunals to 

give reasons. However…the nature and circumstances of the 

adjudication may indicate a necessity for giving reasons, in which 

case the tribunal or the courts would readily imply a duty to give 

reasons. 

Reasons are required in this particular case because of the challenge 

that had been made by the applicant in the second hearing. There were 

procedural impropriety in the hearing. The Commissioner in his 

decision must give reasons to show how he had dealt with these 

matters when he concluded that the charge against the applicant was 

proven.” 

220


Adequacy of Reason: 

“ …. the reasons given should show that the Tribunal has 

addressed the substantial issues before it and show why 

the Tribunal has come to its decision. There may not be 

any need however to address every single issue. But the 

reasons should show that the issues that arise for serious 

consideration have been considered. 

…. the reasons may not require great elaboration and 

they may be brief. 

….. reasons for a decision on a point of law should 

usually set out the findings of fact, the point of law at 

issue and the process of reasoning leading to the 

conclusion.“ 


Television and Entertainment Licensing Authority 

Oriental Daily Publisher Limited v. Commissioner for 


FACC No. 1 of 1998 

• Oriental Daily News published various features 

consisted of photographs which showed nudity of the 

female body with the nipples obscured by opaque 

squares and private part hidden from view by objects 

held by the female. 

• Oriental Daily News was summoned to appear before 

the magistrate on alleged offences of publishing indecent 

articles without the safeguards of cover or packaging or 

warning notice contrary to section 24 of the Control of 

Obscene and Indecent Articles Ordinance (Cap. 390). 

The magistrate referred the articles in question to the 

Obscene Articles Tribunal for determination. 

222 

FACC No. 1 of 1998) 221 







30 June 1996, A17, Oriental Daily 

29 June 1996, A13, Oriental Daily 

223 

30 June 1996, A17. Oriental Daily 

224




Section 2 of the Control of Obscene and Indecent 

Articles Ordinance provides that: 

“(2) For the purposes of this Ordinance 

… (b) a thing is indecent if by reason of indecency it 

is not suitable to be published to a juvenile. 

(3) For the purposes of subsection (2), … 

“indecency“ () include violence (), 

depravity () and repulsiveness ().“ 




Section 10 of the Control of Obscene and Indecent 

Articles Ordinance provides that: 

“(1) In determining whether an article is … indecent …a 

Tribunal shall have regard to- 

(a) standards of morality, decency and propriety that are 

generally accepted by reasonable members of the 

community… 

(b) the dominant effect of an article …as a whole; 

(c) in the case of an article, the persons or class of persons, 

or age groups of persons, to or amongst whom the article is, 

or is intended or is likely to be, published;…” 

225 

226 




• REASONS FOR DECISION of the Tribunal: 

The Tribunal has considered all the submissions advanced by 

Defence Counsel and has directed itself to section 2(2)(b) and 

section 10(1) of Cap. 390. This Tribunal has also reminded itself 

that the standard to be adopted by it is the standard followed in 

criminal cases, namely, “proof beyond reasonable doubt“. This 

Tribunal unanimously determined that all the articles in the present 

two cases are indecent articles because :- 

(a) each and every photograph in these two cases violates and 

exceeds the standard of morality, decency and propriety that are 

generally accepted by reasonable members of the community; 

(b) the dominant effect of each and every photograph as a whole in 

these two cases is indecent; 

(c) by reason of indecency each and every photograph is not 

suitable to be published to a juvenile. 

• Was the reason given an adequate one? 

227 





“…when deciding on questions of indecency or obscenity, 

there may be cases where the contents of the articles in 

question would virtually speak for themselves. In these 

instances, the duty to give reasons could be discharged by 

describing the contents without much more. Apart from 

cases of this kind, a decision on indecency or obscenity 

which merely recites the statutory guidelines in section 10 

would not normally be adequate. Such statements would 

in effect assert conclusions and would not reveal why the 

Tribunal has come to such conclusions.” 

228





“In my view, the reasons given are inadequate to discharge the Tribunal's 

duty to give reasons in the circumstances of this case. They are conclusions 

rather than reasons. They do not show that the Tribunal has addressed the 

issues raised and why it came to the conclusion of indecency. It was pointed 

out to the Tribunal that the nipples had been blocked and the private part 

covered and submitted that photographs similar to these are not uncommon 

in public places and newspapers. In other words, this is relevant to 

measuring community standards. Did the Tribunal reject this submission ? 

Or if it accepted it, why did it conclude that the articles were indecent as 

violating and exceeding community standards. It was submitted to the 

Tribunal in effect that these are newsworthy items to inform our community 

of others' cultures. What was the Tribunal's view on that submission ? It was 

submitted that the articles in question were in an adult section of the 

newspaper. Was this accepted or rejected? Did the Tribunal consider that for 

a daily newspaper, there is no distinction between various parts of the 





“We are here concerned with photographs of females with 

the upper parts of their bodies naked with the nipples 

obscured by applied photographic technique. Contrary to 

the views expressed in the courts below, I do not consider 

that the articles in question are obviously indecent and 

virtually speak for themselves. In the circumstances of this 

case, it was encumbent upon the Tribunal to explain why 

they are considered indecent. I venture to suggest that if 

these photographs are considered indecent, the Tribunal 

would be coming close to holding that photographs of seminaked 

females are per se indecent according to community 

standards. If that is the Tribunal’s reason, it should so 

explain.” 

newspaper ?” 229 

230 

Chen Chengzhi v. Director of Immigration and 

Immigration Tribunal HCAL 40/2005 

• Chen was born in Mainland China. 

• His mother was born in 1928. 

• He claimed that his mother, Madam Wan was an 

indigenous villager of Shatin and lived there until about 

1941 when she was separated from her family and taken 

to the Mainland during the Japanese occupation of Hong 

Kong. 

• He applied to the Director of Immigration for a certificate 

of entitlement so that he can come to Hong Kong for 

settlement as a child born to a parent who is a permanent 

resident of Hong Kong. 

• His application was refused. 

231 



• Several witnesses testified: 

(i) Madam Wan was asked a number of questions related to her 

knowledge and understanding of the village and the nearby areas 

in Shatin and her life during childhood 

(ii) Sister of Madam Wan gave evidence that Madam Wan was born 

at home in Ma Liu Shui Village and she had helped to carry her 

when she was small. 

(iii) Younger brother of Madam Wan gave evidence that they were 

indigenous villagers and had been living in Ma Liu Shui village in 

Shatin until being resettled to Fanling. He said Madam Wan was 

with the family and had helped to look after him when he was 

small. 

(iv) Cousin of Madam Wan, born in 1926 in Ma Liu Shui village, said 

he was aware that Madam Wan was born at home and their two 

families lived in the same house. He explained it was not 

customary at the time to register the birth or to obtain birth 

certificate. He said that Madam Wan went to the Mainland when 

the Japanese came to Hong Kong. 

232



• The Tribunal gave reasons for its decision: 

(1) The applicant was unable to adduce compelling 

evidence to prove his claim that his mother was born in 

Hong Kong, lived in Hong Kong during her childhood, 

but was living in the Mainland from 1942 to 1974. 

(2) The evidence of Wan Kam Lung, Wan Fook Ying and 

Wan Yau was insufficient to prove that Madam Wan 

was born in Hong Kong and lived in Hong Kong until 

1942 when she returned to live in the Mainland. 

• Chen applied for judicial review to challenge the decision 

of the Tribunal on the ground that the Tribunal failed to 

give adequate reasons. 

233 




“In my view, the Tribunal had only given its conclusions on 

the appeal, but had not explained the basis for the 

conclusions and finding that Madam Wan only came to 

Hong Kong in 1974. 

In the first place, the Tribunal had not explained why the 

evidence of Madam Wan’s siblings and cousin are 

insufficient to prove the applicant’s claim. While it said 

that the cousin did not give credible evidence, it did not 

indicate the basis for the conclusion on his credibility. As 

for Madam Wan’s sister and brother, the Tribunal did not 

explain why it regarded their evidence as insufficient to 

prove the claim. It is not known whether it was because the 

Tribunal also doubted their credibility or because it had 

reservation over the relevance or probative value of their 

evidence.” 

234 




“Secondly, the Tribunal simply did not even mention the 

evidence of Madam Wan herself…given the importance of 

Madam Wan’s evidence to the appeal, the applicant is entitled to 

know that the Tribunal had addressed its mind to her evidence 

and had afforded it proper evaluation and assessment. Fairness 

therefore requires the Tribunal to make express findings on her 

credibility and evidence, and to explain the basis upon which it 

reached its conclusion. 

While I accept that there are cases in which the basis of the 

Tribunal’s conclusion may be quite obvious such that it needs 

not be expressly stated, this is not one of those cases. Madam 

Wan was not cross-examined by the representative of the 

Immigration Department. It was also not put to her and the other 

witnesses that their evidence was untruthful, concocted or 

mistaken.” 

235 




“Madam Wan, her sister, brother and cousin are all in their 70s and 

80s. The sister and the cousin apparently do not enjoy good health. 

They are testifying on matters that were more than half a century 

ago. The absence of supporting documentation has to be considered 

against the fact that in 1928, it was not customary or common to 

register the birth, a fact that the Tribunal appeared to accept. On 

taking a broad picture of the case, the basis of the Tribunal’s 

conclusions is plainly not obvious to the applicant or at all. 

Further, it has to be borne in mind that this is a case where the 

applicant’s claim and the reliability and the credibility of the 

witnesses falls to be assessed on a balance of probabilities. In my 

view, there are at least two features in the evidence available before 

the Tribunal that are highly relevant and important to an objective 

assessment of the probabilities inherent in the applicant’s claim.” 

236




“The first is that it is undisputed that Madam Wan had at 

least as early as 1974 claimed to the Hong Kong authority 

that she was born in Hong Kong. That was shortly after her 

arrival in Hong Kong and was the first available opportunity 

for her to report her place of birth. There is no obvious 

motive or reason for her to give an incorrect account or to 

lie about her place of birth. Since then, Madam Wan has 

consistently maintained that she was born in Hong Kong.” 

237 




“The second matter is that the Director does not dispute that: (1) 

The parents of the applicant’s mother were indigenous villagers, 

and had lived and died in Hong Kong; and (2) Wan Fook Ying 

and Wan Yau are the elder sister and younger brother of Madam 

Wan and they were both born and brought up in Hong Kong. 

The question that has to be addressed is: Against these 

undisputed facts and considering that 1928 was a time of peace 

in Hong Kong, what is the probability of Madam Wan being 

born outside the village and outside Hong Kong. In other 

words, is it inherently probable for Madam Wan’s mother to give 

birth to her second child in Hong Kong, as with the case of her 

first and third child? Further, is it inherently probable for her, as 

an indigenous villager, to have left Hong Kong in 1928 and 

leaving her eldest daughter behind, to go to the Mainland to give 

birth to Madam Wan?” 

238 

• national security 

Exceptions 

• not applicable to legislative process 

• ex post facto hearing or appeal may save 

a hearing that has breached natural justice 

239 



LORD FRASER OF TULLYBELTON: 

“The decision on whether the requirements of national security 

outweigh the duty of fairness in any particular case is for the 

Government and not for the courts;…in any event the judicial 

process is unsuitable for reaching decisions on national security. But 

if the decision is successfully challenged, on the ground that it has 

been reached by a process which is unfair, then the Government is 

under an obligation to produce evidence that the decision was in 

fact based on grounds of national security…The evidence in 

support of this part of the respondent's case came from Sir Robert 

Armstrong in his first affidavit…The affidavit, read as a whole, does 

in my opinion undoubtedly constitute evidence that the Minister did 

indeed consider that prior consultation would have involved a risk of 

precipitating disruption at GCHQ. I am accordingly of opinion that 

the respondent has shown that her decision was one which not only 

could reasonably have been based, but was in fact based, on 

considerations of national security, which outweighed what would 

otherwise have been the reasonable expectation on the part of the 

appellants for prior consultation. ” 240

Otis Elevator Company (HK) Ltd v Director of 

Electrical and Mechanical Services CACV184/1994 

• As a result of an accident occurring in the course of 

maintenance works being carried out on a lift, the 

Director of Electrical and Mechanical Services brought 

charges against 

• Ltd., the lift contractor, as it appeared to him that Otis 

Ltd. had been guilty of negligence or misconduct. 

• The Director appointed a disciplinary board under s 

11E(1) of the Lifts and Escalators (Safety) Ordinance 

(Cap 327) to hear the charges against Otis. The 

chairman appointed, was an assistant director in a 

division of the Department of Electrical and Mechanical 

Services, which had no involvement with, lift 

contractors. 

• Otis was found guilty for the charges by the disciplinary 

board. Otis Ltd. applies for judicial review against the 

board's decision. 

241 



• Section 8A of the Lifts and Escalators (Safety) 

Ordinance (Cap.327) provides that: 

"(1) The Secretary [for Planning, Environment and 

Lands] shall,… appoint a panel of persons (the 

‘disciplinary board panel’) which shall consist of not 

more than 20 members… 

(2) No person shall be appointed to be a member of the 

board unless he has been in practice in Hong Kong for a 

period of at least ten years and has been recommended 

by the Director after consultation with the appropriate 

institution of which he is a member.” 

242 



• Section 11E of the Lifts and Escalators (Safety) Ordinance (Cap.327) 

provides that: 

"(1) The Director may, whenever it is necessary to do so …, appoint a 

disciplinary board. 

(2) Every disciplinary board appointed under this section shall consist of - 

(a) one person who is a member of the panel appointed under section 11F; 

(b) one person whose name is included in list II kept under section 3(2)(b) 

of the Buildings Ordinance (Cap.123) and who is a member of the panel 

appointed under section 8A; 

(c) 3 members who are members of the panel appointed under section 8A 

(d) the Director or his representative. 

(3) The Director or his representative, or such other member of the 

disciplinary board appointed under this section as the Director may 

appoint, shall be the chairman of a disciplinary board appointed under 

this section, and the chairman shall determine the procedure of the board. 

(4) A legal officer may be present at any proceedings of a disciplinary 

board appointed under this section to advise the chairman on any matter.” 

243 



• Section 11G of the Lifts and Escalators (Safety) Ordinance (Cap. 

327) provides that: 

"(1) Where it appears to the Director that a registered lift 

contractor or a registered escalator contractor has been convicted 

by any court of such an offence, or has in carrying out any lift 

works or escalator works, as the case may be, been guilty of such 

negligence or misconduct .…the Director may bring the matter 

to the notice of a disciplinary board appointed under section 11 E. 

(2) Where, after due inquiry, the disciplinary board is satisfied that 

the registered lift contractor or the registered escalator contractor 

has been convicted of such an offence or has been guilty of such 

negligence or misconduct as is referred to in subsection (1), the 

board may- (a) order- (i) that the name of the lift contractor or 

escalator contractor be removed from the register of lift 

contractors or the register of escalator contractors or both 

registers, as the case may be, either permanently or for such 

period as the board directs…” 244



• Section 11I. of the Lifts and Escalators (Safety) 

Ordinance (Cap.327) reads as follows: 

”(1) Any lift contractor or escalator contractor aggrieved 

by any order made in respect of him … may appeal to a 

judge of the High Court, and upon such appeal the 

judge may confirm, reverse or vary the order of the 

disciplinary board or may remit the matter to the board 

with his option thereon. 

(4) The decision of the judge shall be final.” 

245 



Liu, J.A., Court of Appeal: 

“In this case, s.11G(1) of the Lifts and Escalators (Safety) Ordinance, 

Cap. 327 (requiring the Director to first form a view that a 

contractor "has been guilty" of negligence) and s.11G(2) (before 

due inquiry can be made by the Disciplinary Board with the 

Director or his representative sitting on it as Chairman) were in 

place before the Hong Kong Bill of Rights Ordinance. It does not 

seem to be disputed that the legislature may limit or exclude any 

right to the common law rules of natural justice…They were 

workable before our Bill of Rights. Does the statutory scheme admit 

of a construction consistent with the Hong Kong Bill of Rights 

Ordinance or has it in part been repealed? See s.3 Cap. 383. Section 

11I of the Lifts and Escalators (Safety) Ordinance provides an 

unrestricted right to a complete rehearing on appeal…The statutory 

scheme here enjoys an avenue to a fresh re-hearing on appeal, and 

the Disciplinary Board as constituted within it is therefore not 

inconsistent with Article 10.” 246 

Wong Tak Wai v. Commissioner of Correctional Services 

CACV 231/2009 

• Wong is an inmate of Stanley Prison. He was found to 

have committed offences against prison discipline in 5 

cases and punished by forfeiture of remission of 

sentence. 

• Reports against Wong were dealt with and decided by 

the Head of Stanley Prison. 

• Issues: (1) Whether there was basis to complain of bias 

on the part of the Superintendent who determined the 

cases? 

• (2) If the answer to (1) is yes, whether the whole 

determination process of prison disciplinary offences, 

including appeal to the Commissioner and judicial 

review, could nevertheless be regarded as fair? 

247 


CACV 231/2009 

Prison Rule 57 provides that: 

“The Superintendent or in his absence, the officer 

appointed to act for him and no other, shall deal 

with a report made against a prisoner.” 

248


CACV 231/2009 

Prison Rule 63 provides that: 

“(1) The Superintendent may order a prisoner, who 

commits any of the offences enumerated in rule 61, to be 

punished by any one or more of the following 

punishments… 

(2) Any prisoner who considers himself aggrieved by any 

order made by the Superintendent under this rule may, 

within 48 hours after the issue of such order, notify the 

Superintendent that he wishes to appeal to the 

Commissioner against such order, and the Superintendent 

shall forthwith notify the Commissioner accordingly and 

shall stay execution of the order pending the hearing of the 

appeal. 

249 


CACV 231/2009 

Art. 10 of HKBOR provides that: 

“All persons shall be equal before the courts and 

tribunals. In the determination of any criminal 

charge against him, or of his rights and obligations 

in a suit at law, everyone shall be entitled to a fair 

and public hearing by a competent, independent 

and impartial tribunal established by law…” 

250 


CACV 231/2009 


“Challenges based on a lack of independence and impartiality may 

be brought on an institutional level. If the system is structured in a 

way that creates a reasonable apprehension of bias on an 

institutional level, the requirement of impartiality is not met. 

Considering the circumstances which are said to give rise to bias 

where a Superintendent acts as adjudicating officer in 

disciplinary proceedings of a prisoner of the same prison, there is 

legitimate doubt if the essential objective conditions or guarantees 

of judicial independence are met. As independence provides the 

structural framework which secures impartiality, legitimate doubts 

over the lack of independence could lead to reasonable misgivings 

over impartiality, whether the adjudicating Superintendent would be 

free of a predisposition to favour the interests of either side. Public 

perception from an objective viewpoint would conclude there was a 

real possibility that the adjudicating Superintendent might be 

subconsciously biased.” 

251 


CACV 231/2009 


“The common law has developed a similar doctrine in that the courts 

have declined to intervene on grounds of procedural unfairness 

where the impugned decision is subject to correction by a 

procedure which has proper procedural safeguards. This approach 

is based in large part on an assessment if, in all the circumstances of 

the original hearing and subsequent appeal, the procedure as a whole 

would satisfy the requirements of fairness. “Of particular importance 

are (a) the gravity of the error committed at first instance, (b) the 

likelihood that the prejudicial effects of the error may also have 

permeated the rehearing, (c) the seriousness of the consequences for 

the individual, (d) the width of the powers of the appellate body and 

(e) whether the appellate decision is reached only on the basis of the 

material before the original tribunal or by way of fresh hearing, or 

rehearing de novo”.” 252


CACV 231/2009 


“In assessing the sufficiency of judicial review to remedy an initial 

decision-making process which has not been compliant with article 

10, it is necessary to have regard to matters such as these: the subject 

matter of the decision appealed against, the manner in which that 

decision was arrived at, the content of the dispute, the proposed 

grounds of challenge of the decision. 

The European Court of Human Rights held that judicial review 

could not provide the curative effect in this situation for these 

reasons: (1) the decision of the review board was based on a simple 

issue of fact, namely, whether there had been good cause for the 

applicant’s delay in making a claim. No specialist expertise was 

required to determine that issue; (2) this simple factual finding could 

not be said to be merely incidental to the reaching of broader 

judgments of policy or expediency…” 253 


CACV 231/2009 


“(3) the review board was not merely lacking in independence from 

the executive, but was directly connected with one of the parties to 

the dispute. The connection of the councillors to the local authority 

might infect the independence of judgment in relation to the finding 

of primary fact in a manner which could not be adequately 

scrutinised or rectified by judicial review; (4) although the High 

Court on judicial review had power to quash the decision of the 

review board if there was no evidence to support the factual finding 

or where the finding was plainly untenable or where relevant factors 

had not been taken into account, the High Court did not have 

jurisdiction to rehear the evidence or substitute its own views as to 

the applicant’s credibility; (5) hence, there had never been the 

possibility that the central issue would be determined by a tribunal 

that was independent of one of the parties to the dispute.” 254 


CACV 231/2009 


“…the core issue before the Superintendent was a dispute as to 

primary fact, the apparent bias of the tribunal would not be cured by 

judicial review, as the lack of independence on an institutional level 

might infect the independence of judgment in the finding of primary 

fact in an imperceptible manner which could not be adequately 

scrutinised or rectified by judicial review. The High Court on a 

judicial review has no jurisdiction to reach its own conclusion on the 

primary facts, as it does not have power to rehear or weigh the 

evidence, or substitute its own views as to the applicant’s credibility. 

I would agree that in this situation, judicial review, without more, 

does not afford full jurisdiction and does not cure the breach of 

article 10 or the lack of independence and impartiality at the first 

stage of the process before the Superintendent. There is still the 

question whether an appeal to the Commissioner would provide the 

curative effect. ” 

255 


CACV 231/2009 


“Given the wide power of the Commissioner to enquire into the 

merits fully and to hold a rehearing where the justice of the matter 

requires, he is armed with full jurisdiction to deal with the case as the 

nature of the challenged decision requires. I am inclined to think that 

the safeguards for a fair adjudication are met and that the process 

overall is compliant with the requirements for a fair hearing. I would 

answer the second main issue in this appeal in favour of the 

Commissioner. ” 

256

Natural Justice and Statutory provisions 

on procedures 

257 

Statutory provisions on procedure 

Road Traffic Ordinance, Cap. 374 

s 30 Inquiry where passenger service licence is contravened 

“(1) If the Commissioner has reason to believe in respect of any 

vehicle in respect of which a passenger service licence is in force 

that- 

(a) the vehicle has been or is being used otherwise than for the 

purpose of the service authorized by the licence; or 

(b) any condition of the licence or any provision of this Ordinance 

has not been or is not being complied with, 

he may appoint a public officer to hold an inquiry. 

(2) An officer appointed under subsection (1) shall fix a time and 

place for the inquiry and shall give 21 clear days' written notice 

thereof to the licensee… 

(4) At an inquiry the officer conducting the inquiry shall consider- 

(a) any evidence received by him, whether tendered on behalf of the 

licensee or otherwise, and any representations made by or on behalf 

of the licensee or otherwise; 

(b) representations in writing by or on behalf of the licensee.” 

258 

Must the statutory provisions be strictly 

complied with? 

259 

Au Kwok Hung v. Appeal Panel appointed under the 

Housing Ordinance HCAL 147/1999 

• Au was a tenant in a public housing estate. His lease was 

terminated. 

• According to section 20(1) of the Housing Ordinance: 

“(1) Where a lease has been terminated under section 19 ... the 

tenant may appeal to the panel, appointed under section 7A(1), not 

later than 15 days after the date on which- 

(a) service of the notice of termination has been effected under 

section 19A(2); or 

(b) notice to quit has been given under section 19(1)(b), 

as the case may be: Provided that where the chairman of the panel 

is satisfied that the tenant is unable to appeal by reason of illhealth, 

absence or other cause thought sufficient by the chairman, 

he may permit an appeal to be made on behalf of the tenant by a 

person authorised under the lease to occupy the land or part of it.” 

• Au made an appeal beyond the 15 days period, almost 3 months 

out of time. 

• Is this procedural requirement a mandatory requirement? 260




“…questions which have to be asked which are more likely to be of 

greater assistance than the application of the mandatory/directory 

test. The questions which are likely to arise are as follows. 

1. Is the statutory requirement fulfilled if there has been substantial 

compliance with the requirement and, if so, has there been substantial 

compliance in the case in issue even though there has not been strict 

compliance? (The substantial compliance question.) 

2. Is the non-compliance capable of being waived, and if so, has it, or 

can it and should it be waived in this particular case? (The 

discretionary question.) I treat the grant of an extension of time for 

compliance as a waiver. 

3. If it is not capable of being waived or is not waived then what is 

the consequence of the non-compliance? (The consequences 

question.)” 

261 




“In considering the nature of the time limit requirement imposed by 

section 20(1), I believe it is necessary to have regard to the purpose 

of the Ordinance. That purpose is to provide for the establishment of 

the Housing Authority which itself has imposed upon it a statutory 

duty,…The Authority therefore has a duty to secure housing for 

various classes of persons, those persons invariably being incapable 

(by way of purchase or rental) of otherwise securing adequate 

housing for themselves…I believe too that I am entitled to take 

judicial notice of a fact notorious in Hong Kong; namely, the 

existence of considerable pressure on the Authority to secure 

housing for an extensive waiting list of applicants. It follows 

therefore that when accommodation becomes available the Authority 

has a duty to allocate it as soon as reasonably possible….In such 

circumstances, if a tenant is to appeal the termination of his lease, I 

believe that a strict approach by the legislature to time requirements 

is readily understandable…it is clear that the legislature did not vest 

the Appeal Panel with any discretion to extend the time period 

allowed for an appeal.” 

262 




“…what the laws makers should be judged to have intended should 

be the consequence of non-compliance. In the present case, upon a 

consideration of the wording of the Ordinance and its history of 

amendments, I am satisfied that the law makers intended that if an 

aggrieved tenant did not comply with the time limit he should be 

barred totally from pursuing his appeal. If that were not the case, as I 

have already indicated, I believe that the smooth running of the 

legal machinery in Part IV of the Ordinance would be materially 

impaired. That would not be in the greater public interest although it 

may have an unhappy consequence for the individual tenant. 

…there has not been substantial compliance with the 15 day 

provision in section 20(1). But even if, factually, there had been such 

compliance, I do not believe it would have fulfilled the statutory 

requirement. Strict compliance is required because, as I have said, it 

would otherwise undermine the ability of the Housing Authority to 

fulfil its duty to move timeously to prepare vacated premises for 

occupation by new tenants.” 

263 

Express inclusion of natural justice 

Schedule 5A, Mandatory Provident Fund 

Ordinance (Cap. 485): 

“2. Authority not bound by rules of evidence 

At the inquiry, the Authority must comply with 

the rules of natural justice, but is not bound by 

the rules of, or the practice relating to, evidence 

and may inform itself on any matter as it thinks 

appropriate.” 

264

Implied inclusion of natural justice 

R v. Home Secretary, ex parte Doody [1994] 1 AC 

531, at 560, Lord Mustill: 

“What does fairness required in the present case? 

My Lords, I think it unnecessary to refer by name or 

to quote from, any of the often-cited authorities in 

which the courts have explained what is essentially 

an intuitive judgment. They are far too well known. 

From them, I derive that…where an Act of 

Parliament confers an administrative power there is 

a presumption that it will be exercised in a manner 

which is fair in all the circumstances.” 

! 

265 

Express exclusion of natural justice 

Otis Elevator Company (HK) Ltd v 

Director of Electrical and Mechanical 

Services 5 HKPLR 78, Liu, J.A.: 

“It does not seem to be disputed that the 

legislature may limit or exclude any right 

to the common law rules of natural 

justice…” 

! 

266 

Implied exclusion of natural justice 


[1992] 1 HKLR 374, Clough, J.A.: 

“In determining whether or not the court should, 

in the interests of natural justice, supplement 

procedure laid down in legislation for bodies 

which are required to act judicially the test is 

whether that statutory procedure necessarily 

ought to be supplemented because it is 

insufficient to achieve fairness and justice.” 

! 

267 

Development of Procedural Fairness 

268

Form of procedural protection under 

natural justice 



• adversarial in nature 

• may not be suitable for administrative 

process 

No procedural protection 

269 

270 



Duty to Act Fairly 

Inappropriate procedural protection 

271 

272

H.K. an Infant, In re [1967] 2 Q.B. 617 

273 


• A, a native of Pakistan, came and settled in United 

Kingdom. 

• HK, a person alleged to be his son and 15 years of 

age, arrived by air at London Airport and were 

interviewed by the immigration authorities. 

• Section 2 of the Commonwealth Immigrants Act, 

1962, provided that “the power to refuse admission 

shall not be exercised ... in the case of any person 

who satisfies an immigration officer that he is the 

child under 16 years of age, of a Commonwealth 

citizen who is resident in the United Kingdom.” 

• The immigration officer suspected that HK was 

above 16 from the appearance of him. After further 

interviews and medical examination conducted, a 

decision refusing admission was made. 

274 


LORD PARKER C.J.: 

“Good administration and an honest or bona fide decision 

must, as it seems to me, require not merely impartiality, nor 

merely bringing one's mind to bear on the problem, but 

acting fairly; and to the limited extent that the circumstances 

of any particular case allow, and within the legislative 

framework under which the administrator is working, only 

to that limited extent do the so-called rules of natural justice 

apply, which in a case such as this is merely a duty to act 

fairly. 

…it seems to me impossible in the present case to say that 

the decision…was not arrived at, as I put it, fairly. It is 

impossible to believe other than that both father and son 

knew full well of what they had to satisfy the authorities. 

They were, as it seems to me, given ample opportunity to do 

so, and the fact that the officer was not satisfied is not, as is 

admitted, a matter for this court.” 

275 

What is a duty to act fairly? 

• natural justice? 

• duty to act fairly for administrative bodies 

• flexible content of the procedural requirement 

after considering the nature of interest affected, 

benefits to be gained and the costs to the 

administration 

• new form of non-adjudicative procedural 

protection? 

-mediation, consultation, participation in 

the rule making process etc. 

• substantive justice? 

276


What should be the role of the 

court in enhancing procedural 

fairness in administrative 

decisions ? 

Readings 

• Swati Jhaveri, Michael Ramsden, and Anne 

Scully-Hill, Hong Kong Administrative Law 

(Hong Kong: Lexis Nexis Butterworths, 2010), 

Chapter 8; 

• Michael Rowse v.Secretary for the Civil 

Serviceand Others HCAL 41/2007; 

• David Jabbari, “Critical Theory in Administrative 

Law,” (1994) Oxford Journal of Legal Studies 

Vol. 14, No. 2, pp. 189-215 

277 

278 

Reference 

• Criag, Administrative Law ( Sweet & Maxwell, 6th edn, 

2008), chapter 12 and 13 

• Wade & Forsyth, Administrative Law (Oxford 

University Press, 10th edn. 2009), Chaper 12, 13, and 14 

• Loughlin, “Procedural Fairness: A Study of the Crisis in 

Administrative Law Theory” (1978) Univ. Toronto L. J. 

215 

• D. H. Clark, “Natural Justice: Substance and 

Shadow’ [1975] Public Law 27-63 

• Neill, “The Duty to Give Reasons: the Openness of 

Decision-Making” in Forsyth & Hare (eds) The Golden 

Metwand and the Crooked Cord (Oxford: Claredon 

Press, 1998) 

• Timothy H. Jones, “Judicial Bias and disqualification in 

the Pinochet case” [1999] Public Law 391-399 

279

fairly - Faculty of Law, The University of Hong Kong

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