The Judge Over Your Shoulder A Guide To Judicial Review For Administrators (Third Edition) Editorial Board General Editors: Christina Cheung, JP Herbert Li Leona Cheung Consultant Editor: Professor Christopher Forsyth Contributing Editors: Tessa Chan Venus Cheung Ken Ip Aaron Lam Patricia Lam Alyssa Lau Carmen Li Edith Tam Evelyn Tsao Alan Wong Disclaimer: This publication presents legal principles which are derived mainly from the current case law. The views and opinions expressed in the publication should not be regarded as the Department of Justice's legal advice or position. The law develops and the understanding of it may change from time to time. No responsibility can be accepted by the Department of Justice for any errors and omissions contained in it or for any loss or damage however arising from the use of, or reliance on, its contents. Copyright in this publication is vested in the Government of the Hong Kong Special Administrative Region. This publication may not be reproduced in whole or in part without the written permission of the Government of the Hong Kong Special Administrative Region. Copyright © 2019 The Government of the Hong Kong Special Administrative Region Printed by the Government Logistics Department Foreword With a greater awareness of rights and liberty among the public, Government decisions and actions are subject to more vigilant judicial scrutiny. The proper use of judicial review serves to buttress the rule of law and provides an essential foundation to good governance of administrators. Judicial review enables individuals to seek redress from the Court against public bodies to ensure that the exercise of public functions is in accordance with the law and is subject to necessary checks and balances. Judicial review is an integral part of the regime for upholding the rule of law in Hong Kong and the Hong Kong Special Administrative Region Government fully respects individuals’ right to apply for judicial review. Thus, the increasing number of judicial review applications made to the Court of First Instance in recent years should be viewed in a positive light and that it is also a reflection of community’s confidence in our independent judicial system and in turn, the rule of law in Hong Kong. Judicial review remains an established and vital feature of our legal system to ensure that governmental decisions and actions meet the legal requirements on lawfulness, rationality, procedural fairness and compatibility with safeguards on fundamental rights, and provide suitable legal redress where appropriate. It should however be appreciated that judicial review serves to determine the legality of actions of the public authorities as opposed to the merits of policies involving political, economic, social arguments or the like, which the Court is not concerned with and are for the Government to resolve. It is therefore of particular importance that administrators are well-versed with the fundamentals of judicial review and remain vigilant in observing the relevant legal principles when discharging their duties and responsibilities. To this end, it gives me great pleasure to introduce the third edition of “The Judge Over Your Shoulder – A Guide to Judicial Review for Administrators”. In line with the Government’s commitment to openness and transparency, this third edition of the Guide will be made accessible to not just Government officials, but the general public for the first time. It will be uploaded to the website of the Department of Justice so as to facilitate better understanding of the principles relating to good governance and administration. It is hoped that the Guide will serve as a useful general reference for not just Government officials, but anyone who wishes to have a better understanding of judicial review, which is undeniably an important part of the Hong Kong legal system. Foreword With a greater awareness of rights and liberty among the public, Government decisions and actions are subject to more vigilant judicial scrutiny. The proper use of judicial review serves to buttress the rule of law and provides an essential foundation to good governance of administrators. Judicial review enables individuals to seek redress from the Court against public bodies to ensure that the exercise of public functions is in accordance with the law and is subject to necessary checks and balances. Judicial review is an integral part of the regime for upholding the rule of law in Hong Kong and the Hong Kong Special Administrative Region Government fully respects individuals’ right to apply for judicial review. Thus, the increasing number of judicial review applications made to the Court of First Instance in recent years should be viewed in a positive light and that it is also a reflection of community’s confidence in our independent judicial system and in turn, the rule of law in Hong Kong. Judicial review remains an established and vital feature of our legal system to ensure that governmental decisions and actions meet the legal requirements on lawfulness, rationality, procedural fairness and compatibility with safeguards on fundamental rights, and provide suitable legal redress where appropriate. It should however be appreciated that judicial review serves to determine the legality of actions of the public authorities as opposed to the merits of policies involving political, economic, social arguments or the like, which the Court is not concerned with and are for the Government to resolve. It is therefore of particular importance that administrators are well-versed with the fundamentals of judicial review and remain vigilant in observing the relevant legal principles when discharging their duties and responsibilities. To this end, it gives me great pleasure to introduce the third edition of “The Judge Over Your Shoulder – A Guide to Judicial Review for Administrators”. In line with the Government’s commitment to openness and transparency, this third edition of the Guide will be made accessible to not just Government officials, but the general public for the first time. It will be uploaded to the website of the Department of Justice so as to facilitate better understanding of the principles relating to good governance and administration. It is hoped that the Guide will serve as a useful general reference for not just Government officials, but anyone who wishes to have a better understanding of judicial review, which is undeniably an important part of the Hong Kong legal system. As with the previous two editions, the third edition of this Guide mainly serves to assist Government officials who are responsible for making decisions affecting the public in understanding the basics of judicial review. It provides an update to the rapid development of the law on judicial review in recent years. In particular, a new chapter “Is judicial review available” is added and a flowchart illustrating the process of judicial review is included in one of the Annexes to facilitate a better understanding of the practical procedures involved in an application for judicial review. Last but not least, I must express my warmest gratitude to Professor Christopher Forsyth, Emeritus Sir David Williams Professor of Public Law, University of Cambridge, and a long-time friend of this department. His helpful review of the contents and the very constructive comments he has given guided us to complete this edition. I am also most grateful for the hard work and dedication of our in-house editorial team in contributing to this edition. Ms Teresa Cheng, GBS, SC, JP Secretary for Justice May 2019 CONTENTS 1. INTRODUCTION .............................................................................................................................. 1 1.1 THE NATURE OF JUDICIAL REVIEW .......................................................................................... 1 1.2 THE FOUNDATIONS OF JUDICIAL REVIEW ................................................................................ 2 1.3 REVIEW AND APPEAL ............................................................................................................... 2 1.4 JUDICIAL REVIEW AND GOOD GOVERNANCE .......................................................................... 3 1.5 ROLE OF THE COURT ................................................................................................................ 4 1.6 GROUNDS FOR JUDICIAL REVIEW: AN OVERVIEW ................................................................... 4 2. IS JUDICIAL REVIEW AVAILABLE ...................................................................................................... 6 2.1 PROCEDURAL EXCLUSIVITY ...................................................................................................... 6 2.2 TIMING ..................................................................................................................................... 7 2.3 SUBJECT MATTER OF CHALLENGE ............................................................................................ 8 2.4 ALTERNATIVE REMEDY ...........................................................................................................11 2.5 OUSTER CLAUSE .....................................................................................................................12 2.6 STANDING OF APPLICANT ......................................................................................................13 3. ILLEGALITY ..................................................................................................................................