Administrative Law in Hong Kong, by Stephen Thomson

The ability to resolve the full range of life’s diverse disputes by applying legal principles which have emerged over time through case precedent, is the elegant beauty of the common law. Yet it is a process which can bring complexity to certain legal subjects. Of no subject is this more true than administrative law. In his book Administrative Law in Hong Kong (Cambridge University Press 2018), Dr Stephen Thomson masterfully navigates the reader through these difficult waters with a writing style that displays passion and clarity in equal measure.

Make no mistake, administrative law is vital. As Thomson observes, the “tentacles” of regulation which have inveigled every aspect of our lives, bring with them a “smorgasbord” of powers vested in the public bodies and decision-makers tasked with advancing the public interest. The abuse or wrong use of these powers, however, serve as “violations not only of the rule of law but also the ethics which inform it.” Administrative law is directed against such abuses and misuses.

Judicial review is the mechanism by which the courts hold to account public bodies and officials for unlawful decisions. It is through judicial review that the courts give effect to that most important of principles of the rule of law dating back to the Magna Carta in 1215, that no one (in the case of the Magna Carta, not even a King and certainly no government official) is above the law. Thomson’s discussion on the foundation for judicial review in Hong Kong is one of the most fascinating aspects of his book. Sourcing this foundation in the Basic Law is difficult, he notes. Rather, it is in the common law and the principle of the rule of law which the basis for judicial review lie. This is important, as these common law and rule of law roots give judicial review a depth that go beyond any mere textual guarantee. “One can annul a text at the stroke of a pen,” Thomson states, “but the common law and rule of law tradition, as a way of thinking about law, legality and justice – a way of living the law – cannot be so summarily erased.” Amen, to that!

Thomson leads the reader through the labyrinth of the leave stage to judicial review proceedings, which serves as the court’s filter for deciding whether to allow a matter to proceed to a substantive hearing by testing an applicant’s against certain thresholds. Delay, sufficiency of the applicant’s interest, whether the decision being impugned has a sufficient public element, the impact of ouster clauses and whether the applicant’s case meet an “arguability” test, are each of the thresholds examined. Of these, the sufficiency of the public element is the most difficult in terms of the case law, as a clear distinction between public and private is difficult to discern particularly, for example, when it comes to contractual outsourcing by public bodies. Thomson’s examination of the “arguability” test is also revealing. In replacing the previous “potentially arguable” test, the new “arguability” test was intended to raise the threshold to filter out unarguable cases and take pressure off the courts. This, however, has encouraged applicants to submit lengthier submissions at the leave stage in order to clear this hurdle, drawing the court into the heavier burden of a premature examination of the merits. It begs the question, why have a leave stage at all?

The core strength of the book, particularly for those working in public bodies, is Thomson’s examination of the grounds for judicial review. It is here that administrative law is seen at its most complex and, consequently, where clarity is most needed. In providing such clarity, Thomson shies away from the old three-ground Lord Diplock categorisation of illegality, irrationality and procedural impropriety, as being over-simplistic. Instead, Thomson discerns the case-law into the following nine grounds, a manageable enough list for the practical comprehension of the every day public body decision maker, without losing sight of the complexities involved:

1) Excess of power, the limits of discretionary power and non-compliance with statute;

2) Improper purposes, improper motives and abuse of power

3) Relevance of considerations

4) Insufficient retention of discretion, unlawful delegation, divestiture and relinquishment

5) Fettering discretion

6) Error of fact and error of law

7) Legitimate expectations

8) Unreasonableness and irrationality

9) Procedural fairness, procedural impropriety and natural justice.

The chapter on fettering discretion is standout; a must read for any public official involved in preparing guidelines and policies. We see several of the nine grounds in operation (often against each other) revealing the full complexity of administrative law in all its glory. By issuing policies and guidelines, a public body enhances the transparency, consistency and efficiency of its performance and decisions, ensuring that relevant considerations (ground 3) are taken into account. Yet policies and guidelines come with risks attached. They have to be issued and address matters which are within the legal power of the public body (ground 1). They must not be applied in inflexibly, such that the decision maker precludes himself from taking into account relevant matters that sit outside the policy (ground 3) or makes the mistake of pre-deciding a matter with a closed mind, thereby fettering his discretion (ground 5). Where the policy or guideline covers procedure, discretion must always be retained to depart from the procedure where fairness demands (ground 9). At the same time, departing from the policy or guideline is not without risk and may amount to a failure to take into account the relevant considerations stated in the policy (ground 3) or a breach of legitimate expectation (ground 7).

Thomson sprinkles his chapters with cases demonstrating how common law is an embedded part of Hong Kong’s history. Wong Pei Chum v Hong Kong Housing Authority [1996] 2 HKLR was a case involving the Rennie’s Mill resettlement where residents claimed damages for their resettlement in 1988 based on assurances given in 1961 that they could live in their existing buildings indefinitely. The commentary on Zestra Asia Ltd. V Commissioner for Transport [2007] 4 HKLRD is also worth reading. An amusing factual context, involving the refusal to grant an application for a Personalised Vehicle Registration as the license plate would infringe the sensibilities of the allegedly socially conservative Hong Kong population, the case serves as an illustration of how Wednesbury unreasonableness (ground 9) might be shifting towards a lower threshold than the original higher test of the decision being one “which no reasonable body could have come to”.

Thomson also takes the reader beyond judicial review, delving into the array of other mechanisms for holding public administrators to account. It is here, particularly in relation to administrative tribunals and appeals to the Chief Executive in Council, that Thomson aims his most trenchant criticisms, the former being too close to the executive which appoints their membership, the latter being a “relic of the colonial era”.

In Administrative Law in Hong Kong, Dr Thomson has produced a welcome and practical addition to a complex but vital legal subject. His book deserves a place on the desk of all officials working in public authorities. Thankfully, it is pitched at a reasonable enough price to make that achievable.

Jurisdictions: 

AIG Insurance Hong Kong Limited, General Counsel

Mr. Gregoire is the General Counsel of AIG Insurance Hong Kong Limited, responsible for all legal, regulatory and corporate governance issues at the company. He double-hats as commercial lines legal counsel for AIG across the APAC region. Mr. Gregoire is also an Honorary Lecturer at Hong Kong University where he serves as a part-time tutor for the Commercial Dispute Resolution Elective on the PCLL course. In his spare time, he writes fiction and has published two novels.