ADMINISTRATIVE

LAW
Ernest Ng
Parkside Chambers
_
SUBSTANTIVE
REVIEW
Substantive Review

Distinction between: -

Reviewing Legality

Reviewing Procedure

Reviewing Substance
Substantive Review

Problem of “Classification
Wade & Forsyth: “Abuse of Discretion”
Craig: “Abuse of Discretion” & “Rationality and
Proportionality”
Supperstone: “Unreasonableness” & “Proportionality”
Thompson: “Unreasonableness and Irrationality”
De Smith: “Substantive Review”: (1) Unreasonable Process (2)
Violation of Rights (3) Oppressive Decision
Substantive Review

Focus of this Lecture

Introduce the Concept & the Ground of “Unreasonableness” &
“Irrationality”
Revisit the relationships between grounds
Not intended to be a complete course of when decision is
“substantively” reviewed
Proportionality to follow
 THE
”WEDNESBURY”
General Observations

A decision is unlawful if “it falls outside the range of

reasonable responses open to the decision maker”:
Supperstone, Judicial Review (6th) at §8.1
No consistent test (!)
Intensity of review depends on context (!)
Associated Provincial Picture Houses Ltd
v Wednesbury Corporation [1948] 1 KB
223
Complaints by the owners of a Cinema that it was
unreasonable for the authority to licence performance on
Sunday only subject to a condition that ‘no children under the
age of 15 years shall be admitted to any entertainment
whether accompanied by an adult or not.
Associated Provincial Picture Houses Ltd
v Wednesbury Corporation [1948] 1 KB
223
Per Lord Green MR: -
“In the result, this appeal must be dismissed. I do not wish to repeat myself but I
will summarize once again the principle applicable. The court is entitled to
investigate the action of the local authority with a view to seeing whether they
have taken into account matters which they ought not to take into account, or,
conversely, have refused to take into account or neglected to take into account
matters which they ought to take into account. Once that question is
answered in favour of the local authority, it may be still possible to say
that, although the local authority have kept within the four corners of
the matters which they ought to consider, they have nevertheless come
to a conclusion so unreasonable that no reasonable authority could ever
have come to it. In such a case, again, I think the court can interfere. The
power of the court to interfere in each case is not as an appellate authority to
override a decision of the local authority, but as a judicial authority which is
concerned, and concerned only, to see whether the local authority have
contravened the law by acting in excess of the powers which Parliament has
confided in them. The appeal must be dismissed with costs.” (emphasis added)
Subsequent Formulation: The
CCSU Case [1985] AC 374
Per Lord Diplock at p. 410
“By "irrationality" I mean what can by now be succinctly referred to as
"Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223 ). It applies to a decision which is
so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be
decided could have arrived at it. Whether a decision falls within this category
is a question that judges by their training and experience should be well
equipped to answer, or else there would be something badly wrong with our
judicial system. To justify the court's exercise of this role, resort I think is today no
longer needed to Viscount Radcliffe's ingenious explanation in Edwards v.
Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a
decision by ascribing it to an inferred though unidentifiable mistake of law by the
decision-maker. "Irrationality" by now can stand upon its own feet as an accepted
ground on which a decision may be attacked by judicial review.”
Pausing here…

CCUS did not impose any condition that it is an “exclusive”

ground
It is a “Stringent Test” – not whether reasonable persons may
differ as to the outcome or to the logic or to the morality
Involve – more or less – a “Value Judgment” by the Court
For the purpose of this course (and only) ”irrationality“ and
“unreasonableness” interchangeable:
For further reading: see e.g. Sir John Laws [1996] JR at p. 50;
Walker [1995] PL 556 and various text books.
Thompson at p. 227: “important and conceptual differences”,
pp. 242-245.
An “Inconsistent” and
“Incoherent” test?
A wide arrays of terminology being used by the Court –
“within range of reason”?
“capable of being justified”?
”unjustified impact”?
Logic “not stacking up”?
“not sensible”?
Others such as oppressive, uncertainty, impossibility,
arbitrariness, inconsistency, discrimination, unreasonable
delay,
Intensity or “Contextual
approach ”
Lower Intensity Higher Intensity
More policy content Life and limb cases (refugees)
Resources distribution Fundamental rights cases
More “remote” from judicial (overlaps with
experience (Exp Smith [1996] proportionality): Pagtama
QB 517 at p. 556) (2016) §200.
Immigration matters Much depends on context
(particularly in HK)
Much depends on context
*Thompson’s example of
criminal prosecution
Example: IBA Healthcare Ltd v Office
of Fair Trading [2004] ICR 1364
At §§90-91: -
“"91. Thus, at one end of the spectrum, a ‘low intensity’ of review is
applied to cases involving issues ‘depending essentially on political
judgment’ ( de Smith , para 13-056[-7). Examples are R v Secretary of
State, Ex p Nottinghamshire County Council [1986] AC 240 , and R v
Secretary of State, Ex p Hammersmith and Fulham London Borough
Council [1991] 1 AC 521 , where the decisions related to a matter of
national economic policy, and the court would not intervene outside of
‘the extremes of bad faith, improper motive or manifest absurdity’ (per
Lord Bridge of Harwich, at pp 596-597). At the other end of the spectrum
are decisions infringing fundamental rights where unreasonableness is
not equated with ‘absurdity’ or ‘perversity’, and a ‘lower’ threshold of
unreasonableness is used: ‘Review is stricter and the courts ask the
question posed by the majority in Brind , namely, "whether a reasonable
Secretary of State, on the material before him, could conclude that the
interference with freedom of expression was justifiable.”’ ( de Smith
para 13-060, citing Ex p Brind [1991] 1 AC 696 , 751, per Lord Ackner).”
Example: IBA Healthcare Ltd v Office
of Fair Trading [2004] ICR 1364
At §§90-91: -
"92. A further factor relevant to the intensity of review is whether the
issue before the tribunal is one properly within the province of the
court. As has often been said, judges are not ‘equipped by training or
experience, or furnished with the requisite knowledge or advice’ to
decide issues depending on administrative or political judgment: see
Ex p Brind [1991] 1 AC 696 , 767, per Lord Lowry. On the other hand
where the question is the fairness of a procedure adopted by a
decision-maker, the court has been more willing to intervene. Such
questions are to be answered not by reference to Wednesbury
unreasonableness, but ‘in accordance with the principles of fair
procedure which have been developed over the years and of which the
courts are the author and sole judge’. ( R v Panel on Take-overs and
Mergers, Ex p Guinness plc [1990] 1 QB 146 , 184, per Lloyd LJ).””
Example: Gurung Chanda [2023]
3 HKLRD 398
Facts:
App was a foreign domestic helper (FDH) in HK. The visa was valid until 2
April 2020.
She met her husband (H), a HKPR in April 2017, and married in June 2017
App failed twice to apply to stay in HK as dependant under the
"Dependant Policy" of the DOI.
App made a third application in November 2018. The Director refused the
Application in May 2019 on the basis that the Director was not satisfied
that there was a "genuine matrimonial relationship" between them
An Immigration Officer conducted separate interviews with X and H to
assess their matrimonial relationship, and an interview report
highlighted areas of apparent differences between their responses.
Example: Gurung Chanda [2023]
3 HKLRD 398
Key evidence – the Viber Messages:
A number of them are ordinary requests and chat as might be expected
between dating or married couples, such as regular enquiries as to whether the
other has eaten, how work is, and asking what they are doing and how they are
feeling.
If the other is not feeling well, there are expressions of concern and
suggestions as to how to get better.
The suggestion is that the App has taken up a perhaps traditional role of
spouse in cooking and cleaning for H, when she can.
There is use of terms of endearment such as "darling" and the sending of
romantic emojis.
There are arrangements as to meeting up, and frequent requests to "come
home".
There are even examples of complaints as to lack of contact such as when one
asked "You forgot to speak to me?" and the other replied "No, that is not the
case. I am busy so."
Indeed, there are other occasions of excuses as to why one could not call the
other back or why "no call no SMS".
Example: Gurung Chanda [2023]
3 HKLRD 398
On Wednesbury unreasonableness: -
IMs appear to be organic, sustained and authentic, “almost the hallmark of a genuine
relationship between the parties, including occasional expressions of disappointment and
irritation” (at §76)
Not taken into account because no translation from the original Nepali (now available to the
Court) was available at the time of the assessment (at §77)
Some aspects were taken into account, namely photos, emojis, and dates and times, it was
potentially dangerous to have taken into account some aspects but ignored others simply
because of an inability to comprehend them (at §§78-80)
Held as irrational - The content of the Ims provided a significantly different picture than the
one seen by the Officer, and was significantly weightier in identifying a genuine relationship than
many of the discrepancies in the interview report, particularly as it was accepted that X was
financially dependent on H and no ulterior motive for entering into the marriage had been
asserted (at §§81-82.
Example: Lee Keng Wai [2025]
HKCFI 582
Facts
Apps are indigenous villagers in Tung Ping Chau ( 東平洲 ) who are entitled to
build NTEH (New Territories Exempted House) but could not find a place to
do so on the island.
After some length search and good efforts, they eventually found two lots of
land in Che Ha ( 輋下 ) village owned by the “Original Owners”, who has also
applied for planning permission to build NTEH in 2015 (valid until 10 Apr
2019) but decided not to use it. They could not find other places to do so.
App bought the lot to build NTEH in 2017 – in May, the App applied for
license to construct the NTEH but in 2019 was told that it could not be
completed before 10 Apr 2019.
Extension applied for on 27 Mar 2019. A week later, TPB rejected the
application on ground that there has been a change of ownership.
Fresh application made on 20 Feb 2019. On 28 Mar 2019, TPB suggested
that the Original Owners to make the extension application by 10 Apr 2019,
that was not possible.
On 23 Aug 2019, the TPB rejected the application
Example: Lee Keng Wai [2025]
HKCFI 582
Held to be Irrational (at §63+)
(1) the Lots were subject to the previous Planning Permissions, and – except as to
the identity of owners– there had been no change of circumstances;
(2) The substance of App’s application was for an extension of time to the previous
Planning Permissions.
(3) the form of the applications was the result of inadvertence on the part of App’s
representatives;
(4)-(5) the proposed NTEHs are consistent with an orderly development pattern;
(6) development of the Lots would not affect any local tracks or other
infrastructure, and would not frustrate the planning intention of the CDA zone;
(7) the DLO and planning applications were made promptly, and had reached an
advanced stage;
(8) There was nothing more the Applicants could have done to advance those
applications; and
(9) the Applicants paid HK$6M on the basis of the prior Planning Permissions
granted.
AND 2 OTHER PTS.
RELATIONSHIP WITH
ILLEGALITY
Relationship with “Illegality”

Problems with jurisdictional facts: -

Whether such fact exists is a matter for Court; but for factual
finding by the body – that is to be dealt with under
conventional grounds

Complication: What if the jurisdiction depends on a subjective

assessment of facts (ie. “if he believes” or “if it appears to the
[X]” etc)?
Relationship with “Illegality”

Logical Sequence?

“Illegality” generally call for considerations before

reasonablenes
(1) unreasonable conclusion may be just because the decision
maker got the law wrong;
(2) considerations as to what is within the “boundary of
reasons” will generally be guided by a proper understanding of
the law governing the power in any case
Relationship with “Procedural
Fairness”
It is for the Court to decide whether procedural fairness has
been infringed (against the context)
But approporiate weight will be given to the decision maker’s
view as to what is fair: R v Takeover Panel ex p Guinness plc
[1990] 1 QB 146 at pp. 183-184.
This is not without controversy: Lord Irvine [1996] PL 556.
Revisit

Revisit specific grounds such as: -

Failure to consider “discretionary” considerations
Failure to take steps (Tameside)
Unsustainable factual conclusion
Failure to give reasons
Etc.
However, Thompson at p. 227 ”proper scrutiny” required.
Example

Wong Chi Man v Director of Food and Environmental Hygiene [2014] 2

HKLRD 1124

“28. For the above reasons, I consider that the Director, and the Board
in affirming the Director's decision, had failed to direct themselves
correctly as to the law, in finding that there was a breach of cl.4 of the
Agreement so as to entitle the Director to terminate the Agreement.
The Director and the Board had erroneously found as a matter of fact
that Wong had transferred the Business or the Stall to Lun or Chun,
which was material to the decision to terminate the Agreement on the
ground of breach of the Agreement. The Director and the Board had
failed to take into account the fact that Lun had registered the Business
in 1999 at a time when Wong Senior was the tenant. For these reasons,
the decisions of the Director and the Board may be impugned as
irrational, or perverse, and unreasonable in the Wednesbury sense.”
POINTS TO TAKE…
Question to think about..

The ”contextual approach” of unreasonableness review, is it

legally sound? Does it promote judicial intervention?
The differences between “unreasonableness” and
“irrationality”, what are they and do they matter?
How should one approach an “unreasonableness” challenge?
PROPORTIONALITY
Meaning of “Proportionality”

Proportionality as a basic principle

When and to what extent state an invade a right
Proportionality as the “3rd Step” enquiry in a “structure proportionality
analysis
E.g. Whether “no more than necessary”
Proportionality as a standard of reasonableness under Wednesbury
challenges
See previous lectures
Proportionality as a particular aspect of a human rights [not for this course]
See e.g. Freedom of expression
General tool for assessing propriety of penalty, conditions or other matters
[not for this course]
See e.g. criminal sentencing
*Proportionality as a “free-standing” grounds of judicial review
Proportionality as a basic
principle
It is a test of “when” and “to what extent” the state may
encroach on a protected right (sometimes defined by
proportionality itself): Supperstone (6th ed) §9.2
“harms of a state measures (in terms of invasion / impact)
must not outweigh the importance of the measure (in terms of
aim it pursues and its efficacy to so pursuing)
OR
A measure must not be disproportionate to its impact, that
there be balance between need for the measure and its effect
Proportionality as a 3 rd
Step
Enquiry
Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372
While Hong Kong courts had applied a three-step analysis to the
proportionality test, a four-step analysis would now be adopted:
(a) The restriction or limitation must pursue a legitimate aim;
(b) The restriction or limitation must also be rationally connected to that
legitimate aim;
(c) The restriction or limitation must also be no more than was necessary to
accomplish that legitimate aim; and
(d) Where an encroaching measure had passed the three-step test, the
analysis should incorporate a fourth step, asking whether a reasonable
balance had been struck between the societal benefits of the encroachment
and the inroads made into the constitutionally protected rights of the
individual, asking in particular whether pursuit of the societal interest
resulted in an unacceptably harsh burden on the individual
(See paras.52-53, 134-135.)
Proportionality as a 3 rd
Step
Enquiry
Note: Some would call the 4th Step as the Proportionality
”stricto sensu”
Supperstone (6th) at §9.47
Yap (2020)
Xiao (2021) HKLJ 85
Proportionality as standard for
Wednesbury challenge
See previous half
Proportionality as a free-standing
ground
GCHQ Case [1985] AC 374 at p. 410
“My Lords, I see no reason why simply because a decision-making power is
derived from a common law and not a statutory source, it should for that
reason only be immune from judicial review. Judicial review has I think
developed to a stage today when without reiterating any analysis of the
steps by which the development has come about, one can conveniently
classify under three heads the grounds upon which administrative action
is subject to control by judicial review. The first ground I would call
"illegality," the second "irrationality" and the third "procedural
impropriety." That is not to say that further development on a case by case
basis may not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the principle of
"proportionality" which is recognised in the administrative law of several
of our fellow members of the European Economic Community; but to
dispose of the instant case the three already well-established heads that I
have mentioned will suffice.”
Proportionality as a free-standing
ground
Brind [1991] AC 696
The SS required the IBA and the BBC to refrain from
broadcasting "any matter" consisting of or including words
spoken by persons appearing or being heard on programmes
where such persons represented organisations proscribed
under the Prevention of Terrorism (Temporary Provisions) Act
1984 or the Northern Ireland (Emergency Provisions) Act 1978
and certain other specified groups, or where the words spoken
supported or invited support for such organisations.
Apps, sought, inter alia, a declaration that the decision was
ultra vires and unlawful. They further claimed that the
directives were disproportionate, and were unreasonable.
Proportionality as a free-standing
ground
Brind [1991] AC 696
The HL (dismissed) held that ECHR was not part of English
domestic law; that to apply the doctrine of "proportionality"
would involve the court in substituting its own judgment of what
was needed to achieve a particular object for that of the SS on
whom that duty had been laid by Parliament; and that, while any
restriction of the right of freedom of expression could only be
justified by an important competing public interest, it was
impossible to say that the Secretary of State, in concluding that
the modest restrictions imposed by the directives were justified
by the important public interest of combating terrorism, had
exceeded the limits of his discretion or acted unreasonably in
making them.
 Proportionality as a free-stand
Per Lord Roskill at p. 749:
ground
“[…I add some observations of my own only on one matter, namely, the principle of
"proportionality." Reliance was placed on behalf of the applicants upon a passage in
the speech of my noble and learned friend, Lord Diplock, in [CCSU Case, quotation
omitted]
In that passage my noble and learned friend was concerned to make plain, first, that
his triple categorisation was not exhaustive and, secondly, that the time might come
when further grounds might require to be added notably by reason of the "possible
adoption" of that principle in this country. He clearly had in mind the likely increasing
influence of Community law upon our domestic law which might in time lead to the
further adoption of this principle as a separate category and not merely as a possible
reinforcement of one or more of these three stated categories such as irrationality. My
noble and learned friend emphasised that any such development would be likely to be
on a case by case basis. I am clearly of the view that the present is a not a case in
which the first step can be taken for the reason that to apply that principle in the
present case would be for the court to substitute its own judgment of what was
needed to achieve a particular objective for the judgment of the Secretary of State
upon whom that duty has been laid by Parliament. But so to hold in the present case is
not to exclude the possible future development of the law in this respect, a possibility
which has already been canvassed in some academic writings”
Proportionality as a free-standing
ground
Per Lord Lowry at p. 767:
“In my opinion proportionality and the other phrases are simply
intended to move the focus of discussion away from the hitherto
accepted criteria for deciding whether the decision-maker has
abused his power and into an area in which the court will feel
more at liberty to interfere.

The first observation I would make is that there is no authority for

saying that proportionality in the sense in which the appellants
have used it is part of the English common law and a great deal of
authority the other way. This, so far as I am concerned, is not a
cause for regret for several reasons:”
Proportionality as a free-standing
ground
Per Lord Lowry at p. 767:
“…1. The decision-makers, very often elected, are those to
whom Parliament has entrusted the discretion and to interfere
with that discretion beyond the limits as hitherto defined would
itself be an abuse of the judges' supervisory jurisdiction.
2. The judges are not, generally speaking, equipped by training
or experience, or furnished with the requisite knowledge and
advice, to decide the answer to an administrative problem where
the scales are evenly balanced, but they have a much better
chance of reaching the right answer where the question is put in
a Wednesbury form. The same applies if the judges' decision is
appealed. .”
Proportionality as a free-standing
ground
Per Lord Lowry at p. 767:
“…3. Stability and relative certainty would be jeopardised if the new
doctrine held sway, because there is nearly always something to be
said against any administrative decision and parties who felt
aggrieved would be even more likely than at present to try their luck
with a judicial review application both at first instance and on appeal.
4. The increase in applications for judicial review of administrative
action (inevitable if the threshold of unreasonableness is lowered)
will lead to the expenditure of time and money by litigants, not to
speak of the prolongation of uncertainty for all concerned with the
decisions in question, and the taking up of court time which could
otherwise be devoted to other matters. The losers in this respect will
be members of the public, for whom the courts provide a service.”
Proportionality as a free-standing
ground
R (ABCIFER) v SS for Foreign and Commonwealth Affairs [2003] QB 1397 at
§§33-35.
Key points: -
Affirmed that the result that follows will often be the same whether the test
that is applied is proportionality or Wednesbury unreasonableness -
particularly so in a case in the field of social and economic policy. But the
tests are different:
Noted cases in support of “Proportionality” and the case for accepting it is a
“strong one”
“The Wednesbury test is moving closer to proportionality and in some cases it is not
possible to see any daylight between the two tests” (at §34)
“But we consider that it is not for this court to perform its burial rites. The continuing
existence of the Wednesbury test has been acknowledged by the House of Lords on
more than one occasion” (at §35, cited Brind, and other cases). “It seems to us that this
is a step which can only be taken by the House of Lords. We therefore approach the
issues in the present appeal on the footing that the ” at (§37)
Proportionality as a free-standing
ground
R (Keyu) v SS for Foreign and Commonwealth Affairs [2016] AC 1355
§§132-133
Key points: -
Appellants argued that Wednesbury test should be “replaced” by
proportionality
“Accordingly, if a proportionality challenge to the refusal to hold an inquiry
would succeed, then it would be necessary to have this appeal (or at any rate
this aspect of this appeal) re-argued before a panel of nine justices. However, in
my opinion, such a course is unnecessary because I consider that the appellants'
third line of appeal would fail even if it was and could be based on
proportionality.” (at §132)
Even if the attack were to succeed, it may be that the position would be more
nuanced. “The answer to the question whether the court should approach a
challenged decision by reference to proportionality rather than rationality may
depend on the nature of the issue” (at §134)
Proportionality as a free-standing
ground
Other cases suggest “willingness”:
Pham [2015] 1 WLR 1591;
Kennedy [2015] 21 AC 455
Wednesbury vs Proportionality

Proportionality
Wednesbury
Less intrusive Simplicity
More respect of separation of Consistency
power
Structured form of inquiry
Flexible intensity – can cater Reasoned inquiry
for modified review in rights
cases Flexible Intensity
BUT – arbitrary? BUT requires “right” to
anchor?
Proportionality as a free-standing
ground
In Hong Kong
Not recognized as a standalone ground
But CFA decision in QT is notable
Proportionality as a free-standing
ground
QT v Director of Immigration (2018) 21 HKCFAR 324
QT entered into a civil partnership in the UK with her partner,
SS. When SS secured employment in Hong Kong, QT applied for
a dependent visa to join her as spouse. However, her
application was refused on the ground that “spouse” means a
party to an opposite-sex marriage.
QT challenged the decision on the ground of Wednesbury
unreasonableness and claimed the refusal encroached upon
her constitutional right to equal treatment.
Proportionality as a free-standing
ground
At §24
“24. While QT also alleges infringement of her constitutional
equality rights (which remain indirectly relevant, as explained
below), her claim is primarily and sufficiently framed as one for
judicial review on the basis that refusing her a dependant visa
by application of the Policy amounts to unlawful discrimination
which is irrational and unreasonable in a Wednesbury sense. As
the challenge is made to an administrative policy and not to
primary legislation, there is no need to rely on the Court's
powers of constitutional review.”
Proportionality as a free-standing
ground
At §86
“87. Although, as we have noted, this case has proceeded as a
claim for judicial review, Lord Pannick QC (in our view rightly)
accepted that the proportionality concepts developed in
constitutional law, including the Hysan fourth step, are equally
applicable to deciding whether the differential treatment
entailed by the Policy is justified or whether it may be impugned
as Wednesbury unreasonable. Thus the provisions of art.25 of
the Basic Law 115 and art.22 of the Hong Kong Bill of Rights 116
are indirectly relevant here.”
Xiao (2021) HKLJ 85: CFA applied proportionality to W.U. Case.
Concluding questions

Wednesbury versus Proportionality

Pros and Cons
Whether P should replace W and if so, in what cases and to
what extent?
Why?