The University of Hong Kong

Department of Law

Academic Year of 2019-2020

Examiner’s Report

[This report will be posted onto intranet immediately after the release of exam
results]

Course code:
LLAW 3093 Course title: Administrative Law

Report prepared by: Dr. Alex Schwartz Date: 30/06/2020

Overall, students performed very well on this exam. Approximately 93% of

students achieved a “B-” or better, and about 24% of students achieved an “A-” or
better. There was one “A+” result.

Below is a breakdown of what was to achieve best results. There was no single
“right answer” – students were free to come to whatever conclusion they thought
most reasonable, provided that it was a plausible one and was adequately
supported by law and reasoning.

PART A (70%)

The challenge in Part A (the problem question) was to spot the many issues raised
by the facts and cover the relevant law, while still leaving sufficient space for
supporting argument. Those students who scored an “A-” or above did this very
well. Students who managed to cover all (or most) issues but either left some
important issues out or did not support all their conclusions with sufficient
reasoning and reference to relevant law tended to score a “B” or “B+”. Students
who had major gaps in their coverage of issues, their reference to relevant law,
and/or reasoning tended to score below a “B-”. Clear, articulate writing tended to
pull marks up. Muddled writing, or writing with many typographical or grammatical
errors, tended to pull marks down (this was a take-home exam, so careless errors
like these are taken more seriously).

1) Preliminary issues/threshold questions for JR

Students should note the requirement of leave to bring the JR, citing relevant
legislation

S.21K(3), HCO: “No application for judicial review shall be made unless the
leave of the Court of First Instance has been obtained in accordance with rules
of court…”

O.53, r.3(1), RHC: “No application for judicial review shall be made unless the
leave of the Court has been obtained in accordance with this rule.”

Students should then proceed to consider the various preliminary/threshold

considerations that are relevant to granting leave:
 a) Is this a public law matter? Students should be applying some
combination of Aga Khan, Datafin, and HK Rifles in their analysis; the issue
turns on whether there is a “sufficiently public element” - the source of a
decision maker’s power is not determinative of this (Datafin), but in HK law
this is still an important consideration - indeed “the source of the power will
often, perhaps usually, be decisive” (HK Rifles).

b) Is there an arguable case? Students should apply the “arguability test”

from Po Fun Chan v Winnie Cheung (2007), noting that this test requires a
“reasonably arguable case” and that this a slightly higher threshold than
just a “possible” case.

c) Does Professor Woo have standing? Students should cite the relevant
legislation - S.21K(3), HCO; and O.53, r.3(7), RH – for the requirement that
Professor Woo must have a “sufficient interest”. Students should then
turn to the relevant case law – Re Wong Chi Kin and Anderson Asphalt –
but not much argument was needed here; this is very straightforward on
the facts.

d) Would leave be denied for delay in bringing the application? Timing

is a potential problem here. Students should cite relevant legislation,
noting the default 3-month time limit and exception for “good reason” [O.53
r.4(1), RHC] and also that “undue delay” is a ground for refusing leave to
bring the JR [Section 21K(6), HCO]. Students should turn to the case law
here - AW v Director of Immigration and Another, CACV 63/2015 (3
November 2015) – for the relevant factors (the length of the delay;
explanation of delay; the merits of the substantive application; any
prejudice to the applicant/putative respondent and to public administration
of the challenge is refused/allowed; whether the judicial review raises
issues of general or public importance.

2) Ouster clause

Students should spot that the Ordinance in the problem question includes a kind
of ouster clause; read together, Section 9(a) and (b) purport to create a time
limited ouster that would preclude a JR unless it is brought within 3 days of the
relevant decision. So, the issue here is whether or not this attempted ouster will
be legally effective. Students should note the strong common law presumption
in favour of preserving JR – citing R v Medical Appeal Tribunal exp Gilmore [1957]
1 QB 574, 583 - and how, following the reasoning from Anisminic, the courts make
it almost impossible to preclude all JR – any number of errors might make a
purported decision legally defective and therefore capable of being chracterised
as a “nullity” which cannot be protected by an ouster clause. To be comprehensive
here, students should note the various HK decisions applying this approach to
ouster clauses (i.e., Chan Yik Tung v Hong Kong Housing Authority; and Bahadur
v Director of Immigration & CEIC [2001] 3 HKLRD 225. Students should note that
this is a time-limited ouster clause and therefore may be treated differently than
an outright ouster clause. They should note that a time limited ouster clause is
distinct and separate from the general 3-month time limit under Order 53. Time-
limited ouster clauses may be more acceptable to the courts -– e.g., Smith v East
Elloe Rural District Council & Others [1956] AC 736; and Chan Yik Tung v HK
Housing Authority [1989] 2 HKC 394. But a 3-day limit seems different in kind
from a 3-month time limit (like the one accepted in Smith).
3) Violation of legitimate expectation?

The institutional email in reply from the RGC on 20 November 2019 might
arguably create a substantive legitimate expectation that Professor Woo should
have been allowed “to revise the application, if need be”, an expectation which
may have been violated when the RGC declined Professor Woo’s request to
remove the Graph. To deal with this issue, students should begin with the general
principle articulated in Ng Yuen Shui [1983] UKPC 7, namely that a legitimate
expectation to some procedural right “may be based upon some statement or
undertaking by, or on behalf of, the public authority which has the duty of making
the decision, if the authority has, through its officers, acted in a way that would
make it unfair or inconsistent with good administration…” to deny that procedural
right. They should also note that Ng Siu Tung extends this idea to substantive
legitimate expectations as well. There is an arguable question here as to whether
the opportunity to revise the application is a substantive LE or a procedural LE,
so students have room to argue for either procedural LE or substantive LE. Next
the students need to work through the conditions for creating a legitimate
expectation. The basic elements that Professor Woo will need to show are: i) a
representation made by a public body (express words or conduct) that is ii) “clear
and unambiguous”; iii) made by someone with actual or ostensible authority to
make such a representation (i.e., not an ultra vires representation); and iv) that
the Applicant (Professor Woo) had knowledge of the representation.
In this case the email is a representation and it comes from “institutional
email”, so that would suggest ostensible authority to make the representation.
And Professor Woo definitely had knowledge of the email. The more difficult
aspect of this whether or not the representation is “clear and unambiguous” such
that it created a legitimate expectation of a particular benefit (the right to amend
the application and remove the graph). This is an objective test, though the
individual’s subjective state of mind will be relevant (Ng Siu Tung). In other
words, students need to consider what Professor Woo was “entitled to expect” in
the context. Students should note that even vague language can be made “clear
and unambiguous” by interpreting it light of the surrounding context. Cases
referred to that show this possibility include Lam Yut Mei (where a Gov’t statement
that “existing students should continue study until they graduate” was found to
imply that gov’t grants would be available). But students should also note that
surrounding context can cut the other way too, as in the HKTV case where the
courts found there was no legitimate expectation that licence applications would
not be rejected by reason of a ceiling imposed on the number of licences to be
granted despite a policy statement that said “no artificial limits” would be set on
the number of licences. In this case, the language of “if need be” must be
understood in the context. Students can use relevant (but non-determinative)
factors to flesh out their argument. These include that the change of policy was
not foreseeable and the candour of the applicant (Professor Woo was honest and
forthcoming about his mistake).

Students should then turn to consider if, assuming there is an LE on the facts,
whether or not the LE cannot be overridden by policy considerations. Students
can rely here on the discussion in Ng Siu Tung:
1. LE should be taken into account in the decision;
2. Unless there are countervailing reasons, LE should be given effect;
3. If there are countervailing policy considerations, these must be
considered in light of the LE;
4. If the above conditions not met, a departure from the LE is not justified
and the decision will “usually” be quashed. But the failure must have
“materially affected” the decision
4) Procedural fairness

Procedural impropriety is the most complex potential ground of JR to wrestle with

because the facts raise a bundle of issues, potentially violations of a right to an
oral hearing, a right to an unbiased decision maker; and a right to (adequate)
reasons.

a) General principles

To begin, students should note the general principle of procedural fairness from
Ridge v Baldwin: any public decision – even if purely administrative – may be
subject to requirements of procedural fairness. Students should also note the
general principles from Doody, 1994: where legislation creates administrative
powers, there is a presumption that the powers will be exercised in a manner
which is fair in all the circumstances; but the standards of fairness are not
immutable – they depend heavily on the circumstances and context.

b) Right to be heard?

With respect to the right to be heard, students should note that – in general - an
individual should be given the opportunity to present her case and respond to
allegations against her (Doody, 1993). However, an oral hearing is not always
required, particularly if substantial written representations have been allowed (see
e.g., Ng Nga Wo, 2006). In this case, factors weighing in favour of the decision
requiring an oral hearing are that this was an individualized decision, as opposed
to a general policy decision (Bushell 1980), and Professor Woo was clearly
negatively affected by the outcome. But the factors weighing in the other direction
include that there is no serious liberty interest at stake and that Professor Woo
was indeed given the opportunity (twice) to provide written representations (and
this may be sufficient in the circumstances). Whether or not credibility of a witness
is at stake is arguable; if so, this would suggest a need for cross examination
(Ngai Kin Wah, 1985).

c) Reasonable apprehension of bias?

Students should have spotted that the Board included Professor Chan, the
original creator of the Graph. This connection raises the issue of reasonable
apprehension of bias (ideally, students should note that this is not actual or
presumed bias). The students should then apply the Deacons case for the test
for apparent bias. Applying this test, students should note that it doesn’t matter if
Professor Chan is actually impartial. What matters is that a fair-minded and
informed observer – knowing all the relevant circumstances could reasonably
conclude that Professor Chan would not be fair to Professor Woo. What are the
relevant circumstances here? Following Deacon, the “relevant circumstances”
would also include any explanation given by a Professor Chan as to whether he
knew of the disqualifying circumstances. Finally, students should note that there
are no arguable exceptions here – such as necessity; presumably Professor Chan
could be replaced on the Board.

d) Right to reasons

Students should start by noting that whether reasons should be given - and the
extent of reasons required - will depend on the circumstances of the case (Doody,
1994). Then they need to canvas the other relevant general principles of law. If
the individual interest affected is very important e.g. personal liberty, or the
decision appears aberrant (i.e., markedly out of line with decisions which the
decision-maker regularly makes) reasons are likely to be required (see Institute
of Dental Surgery 1994). Otherwise, academic judgments / pure value judgments
will not generally attract a duty to give reasons: when “what is sought to be
impugned is on the evidence no more than an informed exercise of academic
judgment, fairness alone will not require reasons to be given” (Institute of Dental
Surgery, 1994) However, not all academic decisions will be beyond challenge:
“Where evidence shows that something extraneous has entered into the process
of academic judgment, one of two results may follow depending on the nature of
the fault: either the decision will fall without more, or the court may require reasons
to be given, so that the decision can either be seen to be sound or can be seen
or (absent reasons) be inferred to be flawed” (Institute of Dental Surgery, 1994).

Turning to the facts of the problem, students should note that this looks like might
be considered an academic judgment - as in Institute of Dental Surgery - and so
it would not, other things being equal, attract a duty to give reasons. But students
should also realise that the decision does look aberrant – the penalty imposed is
markedly out of line from previous decisions and this suggests extraneous
reasons affected the decision. Moreover, the fact that Professor Chan was on
the Board is relevant again here because it lends further support to the notion that
something extraneous may have entered into the decision. Next the students
should consider if the reasons that were in fact given are adequate to discharge
the likely duty to give reasons here. They should note the general principle that
what amounts to adequate reasons depends on context [Oriental Daily] and that
the reasons “should show that the issues that arise for serious consideration have
been considered” [also Oriental Daily]. Where reasons merely recite the statutory
guidelines and effectively assert conclusions – rather than reasoning - this would
“not normally be adequate”, unless it is a case that virtually speaks for itself.
Arguably, in this case – as in Oriental Daily – the Board has just stated its
conclusions – it has not explained them. The facts here do not “speak for
themselves” – it is not self-evident that what Professor Woo did amounts to
“conduct that is likely to damage the research reputation and international
standing of Hong Kong’s universities”; more would be required to show how the
Board came to the conclusion it reached.

e) Irrationality

There is an arguable issue here that the substance of the decision was irrational,
both because the definition of plagiarism that was applied disregards the
applicant’s intentions and also because the penalty imposed is so severe.
Student’s should begin by noting the classic standard of substantive review -
Wednesbury unreasonableness – is very deferential: “so unreasonable that no
reasonable authority could ever come to it”. The should note that this approach
will usually preclude second guessing policy choices [Chim Shing Chung v
Commissioner of Correctional Services (1996) 6 HKPLR 313] That said, they
should also note that approach to standard of review has evolved to allow for
variable intensity of review, up to and including a sort of proportionality analysis
in cases where fundamental rights are at stake. The nature of the interest affected
here is arguable – on the one hand, students should also note that the affected
interest is not so “highly regarded”; research funding is not a fundamental right.
However, damage to career and professional reputation are at stake.

f) Illegality
Students could also consider if the Board’s decision was ultra vires because it
made a material/relevant error of law in interpreting its enabling legislation (with
respect to the definition of plagiarism), making use of Lau Kong Yung & Others v
Director of Immigration (1999) 2 HKCFAR 300. Another possibility to consider is
that there was an unstainable finding of fact- i.e, a finding that the misconduct in
question is likely to damage the reputation of the HK universities – relying on
Edwards v Bairstow [1956] AC 14 and Begum v Tower Hamlets LBC [2003] 2 AC
430. But students should note that this line of argument would probably be
approached with considerable caution by courts, citing South Glamorgan Country
Council v L and M [1996] ELR 400.

PART B (30%)

The is no template for a “best” answer for either of the two essay question options.
As a baseline, some consideration of the more policy-oriented or philosophical
questions that were highlighted in the relevant lectures was expected. In general,
the “A” essays were ones that: i) engaged thoughtfully with the relevant readings
– depending on which question was answered – to develop a clear argument that
demonstrated independent critical thinking; ii) demonstrated qualities of originality
in approach and argument, effective analytical and critical abilities, showing a
thorough understanding of the relevant law and legal issues; and iii) were well-
organized and articulate in expression and presentation.