ADMINISTRATIVE LAW (LLAW 3093)

UNIVERSITY OF HONG KONG

Ernest Ng
Barrister-at-law
Parkside Chambers, Hong Kong
OBJECTIVES

 The NATURE of admin law, power, process & JR

 Ultra vires & the theory as a basis for JR
 Hong Kong situation – Grounds & New Grounds?
 Procedures of JR
 Impact of JR & relationship with good governance
 Analyze Court’s approach and reasoning
INTRODUCTION

 WHAT IS ADMINISTRATIVE LAW?

 How to study administrative law?
 Course structure and Assessment
 Q&A
WHAT IS ADMINISTRATIVE LAW

 Nature of Administrative Law

 The “Traffic Light” Theories
 Administrative Law in Hong Kong: An Overview
WHAT IS ADMINISTRATIVE LAW – NATURE

 Usual private law paradigm: (1) contract (2) tort (3) unjust enrichment
 Vis-à-vis the government
 Exhaustive?
 What about the situation of (1) resumption of land (2) refusal of license (3) refused asylum
WHAT IS ADMINISTRATIVE LAW - NATURE

 Depends on the context of the society and the “model” one subscribes.
 Broadly: law relating to the control (?) of governmental power
 Generally not legislative power, with some exceptions
 Generally concerned with exercise of power not structure

 Or – to promote / secure good administration

 See e.g. Ng Siu Tung (2002) 5 HKCFAR 1 at §129 (on LE); Kwok Cheuk Kin [2021] 6 HKC 795 at §54
(CFA) (on relief).
 See also DOJ’s Guide to JR for Administrator (2022) at §1.1.1.
WHAT IS ADMINISTRATIVE LAW - NATURE

 Manifestation of “rule of law”:

 Power of public authorities are subordinated to law
 Subject to legal limitations
 Possibilities of abuse
 Thus: AL is to keep gov’t in bound and prevent abuse
WHAT IS ADMINISTRATIVE LAW - NATURE

 Example
 R v Somerset County Council, ex p Fewings [1995] 1 All ER 513
 Facts:
 Authority appropriated land under s 122(1)a of the Local Government Act 1972 for the purpose
specified in s 120(1)(b)b of the Act, namely the 'benefit, improvement or development' of that area.
 A resolution was passed to the effect that deer hunting would be banned on the land, because the
majority of the councillors voting were opposed to deer hunting and regarded it as morally
repulsive.
WHAT IS ADMINISTRATIVE LAW - NATURE

 Held: -
 The words of s 120(1)(b) of the 1972 Act were not wide enough to permit a local authority to take a
decision about activities on its land which was based on freestanding moral perceptions as opposed
to an objective judgment about what would conduce to the better management of the estate.
 Section 120 (1)(b) was not within the class of provisions which required the decision-maker to have
regard to moral considerations
 OK if the local authority reasonably concluded that the prohibition was objectively necessary as the
best means of managing the deer herd, or was otherwise required, on objective grounds, for the
preservation or enhancement of the amenity of the area;
 BUT the view that hunting was morally repulsive had nothing to do with such questions.
WHAT IS ADMINISTRATIVE LAW - NATURE

 At p. 524: -

“ The true construction of s 120 is of critical importance in the case, not because of
any legalistic pedantry with which councillors seeking to act in the public interest as
they see it may justly feel impatient, but because a major principle of the common
law necessarily engages it. The principle is this: a public body, such as a local
authority, enjoys no such thing as an unfettered discretion. […]
WHAT IS ADMINISTRATIVE LAW - NATURE

“ … […] Nor, with great deference, is this in the least surprising: a truly unfettered discretion
will at once put the decision-maker outside or, as I would prefer to say, above the law. Public
bodies and private persons are both subject to the rule of law; nothing could be more
elementary. But the principles which govern their relationships with the law are wholly
different. For private persons, the rule is that you may do anything you choose
which the law does not prohibit. It means that the freedoms of the private citizen
are not conditional upon some distinct and affirmative justification for which he
must burrow in the law books. Such a notion would be anathema to our English
legal traditions. But for public bodies the rule is opposite, and so of another
character altogether. It is that any action to be taken must be justified by positive
law. […]
WHAT IS ADMINISTRATIVE LAW - NATURE

 “ … […] A public body has no heritage of legal rights which it enjoys for its own sake; at
every turn, all of its dealings constitute the fulfilment of duties which it owes to others;
indeed, it exists for no other purpose. […] It is in this sense that it has no rights of its own,
no axe to grind beyond its public responsibility: a responsibility which defines its purpose
and justifies its existence. Under our law, this is true of every public body. The rule
is necessary in order to protect the people from arbitrary interference by those
set in power over them.”
WHAT IS ADMINISTRATIVE LAW - NATURE

 The big question – how to promote / secure good administration?

 Should it be the Court?
 Should it be some other manner?
 Should it promote instead of punish / correct?
WHAT IS ADMINISTRATIVE LAW – THE TRAFFIC LIGHTS

 Red Light
 Amber Light
 Green Light
WHAT IS ADMINISTRATIVE LAW – THE TRAFFIC LIGHTS

 Red Light
 Wade & Forsyth as representative
 Curbing of governmental power
 Balanced constitution
 Supremacy of law
 Judicial control
 See Thomson at p. 2

“…Administrative law is essentially directed at abuses and misuses of public law. Its function is to
regulate the relationship between public administrators and those who must deal with them; putting
right abuse and misuses…”
WHAT IS ADMINISTRATIVE LAW – THE TRAFFIC LIGHTS

 Green Light
 Robson, Jennings & Griffith as representative
 Law not necessarily be superior or prevail over administration
 Public administration is a good thing
 Admin law should also be facilitating the administration and sound administrative practices.
 Adjudication based on legal rules is not the sole appropriate ideas, there can be other alternatives
to courts.
 But still – not encourage arbitrary power
WHAT IS ADMINISTRATIVE LAW – THE TRAFFIC LIGHTS

 Amber Light
 The “middle ground”
 Law remains superior to politics.
 Law is to limit the state but allow a controlled degree of discretionary authority – via judiciary
 Is Wade & Forsyth one of this?

”…if a state is to care for its citizens….Relatively little can be done merely by passing of Acts of
Parliament. There are far too many problems of details and far too many matters that cannot be
decided in advance…There must be discretionary power. If discretionary power is to be tolerable, it
must be kept under two kinds of control: political control through the Parliament, and legal control
through the courts…” (2014).
WHAT IS ADMINISTRATIVE LAW – THE TRAFFIC LIGHTS

 Why?
 Engages the fundamental underlying question about the purpose of administrative law
 For example, on the role of judiciary on retrospective decision making versus prospective advisory
opinion?
 It is about “coherence” (Elliot & Varuhas (2017))
WHAT IS ADMINISTRATIVE LAW – HONG KONG

 The Chinese Constitution & Basic Law

 The Common Law
 Modified “Legislative supremacy”
WHAT IS ADMINISTRATIVE LAW – HONG KONG

 Chs 1, 2, 3, 4 - setting up of the government etc.

 Article 35(2): -

“Hong Kong residents shall have the right to institute legal proceedings in the courts against
the acts of the executive authorities and their personnel.”
 Is it complete answer?
WHAT IS ADMINISTRATIVE LAW – HONG KONG

 The Common Law: English Origin – but what is it?

 Craig §2-002: “the history of administrative law remains to be written”

 Key concepts: -

 The “Prerogative Writs” of certiori, mandamus, prohibition, quo warranto and habeas corpus –
developed first.
 Demise of the writs and taking over by the judicial reviews – the “decoupling”
WHAT IS ADMINISTRATIVE LAW – HONG KONG

 Administrative law is a relatively recent development

 No systemic recognition and/or study of administrative law
 Prior to recent years, public officials subject to: -
 Tort actions – not really public law
 Prerogative Writs – decentralized
 But no “generally recognized” administrative law (see e.g. Varuhas, Taxomony and Public Law”
(2018).
WHAT IS ADMINISTRATIVE LAW – HONG KONG

 Prerogative Writs – what are they?

 Will be relevant again in “procedures” class
 Existed from medieval times
 Examples: Writs of certiorari; Writs of Prohibition; Writs of Mandamus

 Foundation or predecessors of modern days JR

 Common threads - (1) “proper cause must be shown” (2) “within the discretion of the Court” (3)
awarded by KB (ie. CFI) etc.
 Issued by the King for certain remedies against inferior tribunals (origins subject to disputes), later
made available to civilians
HOW TO STUDY?

 Some start-up tips

 Importance of statutory reading and construction/interpretation
 Importance of spotting an error
 Recognition that an error may involve more than one “ground” of JR – the “no watertight
compartment” point
 May differ from other civil law subjects*

 Recognition that administrative law is not just about JR in Court

HOW TO STUDY?

 Theory vs Practice
 Evaluate theories against practice
 Particularly for this course

 Critically evaluate academics’ (and ours!) and Courts’ reasoning

 Independent thinking is critical.
 Read the readings and cases assigned – they are chosen for a reason.
COURSE OVERVIEW

 W1: Intro (EN)

 W2: Public vs Private (EN)
 W3-4: Legality (EL)
 W5-6: Procedural Fairness (EL)
 W7: Rationality (EN)
 W8: Legitimate Expectation (EL)
 W9: Policy (EN)
 W10: Procedure and Tribunals (EN)
 W11: Review (EL)
ASSESSMENT

 50% Essay
 Release date: TBC
 Due date: TBC
 Specific topic; Specific reading lists will be given
 Further information by EL

 50% In-Hall Exam (PQ)

 Further information to come
 Cover all topics
Q&A