Ø The police officer said and insisted to let him speak for the truth

Ø After the case, they allow the tribunal hear the case to have the discretion not
absolute bar prohibition to legal representation
Ø They can allow for the tribunal to make the decision whether they allow the legal
representation
After Lam Siu Po the tribunal enjoys a discretion whether to allow legal
representation they would let the tribunal of disciplinary board to decide the
absolute prohibition to legal representation is revoked
Ø No more absolute prohibition they can let the tribunal to decide on case-by-case
basis
Most updated case can be used as the authority whenever comes to the legal
representation
Ø The right to be heard by the lawyer
Ø Whether they are allowed the legal representation not absolute barred
Ø Representation means have a lawyer speak
Ø Discretionary decision
Ø The rule is that they can be accompanied by the colleague can be a barrister can
remind them like that but not speak for them
Ø Still subject to the tribunal
Ø for disciplinary procedure legal representation is always approved

Lecture 3

Baptist university
Two students were suspended their studies and the decision was made instantly
Whether they have been provided a chance to present themselves unknown
Public information receive the notice they would receive the disciplinary proceeding
proper procedures from the authority always fulfill the definition of right to be heard
Not mean after the hearing students no problems
might be terminated or receive warning and other kinds of punishment
But public law refers to the procedures so before providing the penalty and they need
to provide the students the right to be heard why they do so
Constitute the right to be heard
Common law principle
May be the school rules do not lay down this but they still need to provide students
the right to be heard such as the suspension students immediately because this
deprived the students the chance to take class
On behalf of the students
Argue for the university they should consultant their lawyers
The presidents have the school rules to support the decision
Rely on the school rules such as they may make the decision if the students are
militant have the tendacy to hurt disrupt the class or tentacy environment disrespect
the teachers and they may justify their decision
Not saying they are terminating the students but they may be immediate threat who
easily upset might not be able to allow them to attend the class
Even immediate decision to suspend them to come to class the university may not be
wrong
Whether school rules comply with the higher rules like right to be heard or bills of
rights ordinance
Eg:
If the school rules say I wont provide any proceedings before they terminate their
students terminate dismiss the staff if they put the school rules like this the school
rules may be challenged even university follow the school rules but if the school rules
look so unreasonable to deprive affected party common law rights or rights enjoyed
by other law such as language rights
Debatable whether the school rules or university enjoys the discretion like courts to
deprive people to use Chinese
If someone starts to challenge it might fall into Gary Cheng Kai Nam case again judge
may revoke Chengs case
Even the school rules if the people get very seriously they may challenge
Language media may fall under the discretion of university authorities
If you are international school for higher education and may conduct every class in
English
Set the requirement not easily bitten down the students is required to speak putonghua
before graduation
University enjoy a huge discretion to make decision which language they require and
people cannot challenge french department such as want all students to speak french
and putonghua
If the requirement of the faculty is clear then it is difficult to challenge once students
enrolled and it might fall under the discretion of the teacher and the university
(arguable part)
President of Baptist university said
Please read section 10 blank 1 of the school rules
Students will be subject to disciplinary proceedings because the proceeding refers to
the right to be heard
Broader Student The right to be consultant
Individual student who and whom may be the affected party and whose interest was
adversely affected the decision was made by a public authority
Baptist university is the public authority
Related to tutorial 9
Bills of rights ordinance only protect people whose interest has been infringed by the
government as well as public authority
Does not protect the acts by private companies
Adjudicate whether the university is the public authorities three definitions
Ø Public function
Ø Public scrutiny
Ø Public fund
Even the university may not be governed by an ordinance if fulfill all the three criteria
we may argue that it is regarded as the public authority

More
Done by public funding serving public function intergation of legislative council can
be easily argued that it is the public authority
The right to be heard and the rule against biased under the rule of natural justice
Usually handle two different kinds of cases
Application cases application for licenses for different kinds of projects approval
people apply for government funds
Forfeiture cases are cases that someone existing rights being taken away such as
dismissal termination revocation of licenses
Used to enjoy the rights and opened the massage shop in sham shui po but when
people want to renew it and get revocation that is kind of forfeiture
If suddenly the garbage station is planned to built outside the university the existing
environmental condition will be adversely affected and it was also a kind of forfeiture
When the existing situation is adversely affected it can also be a forfeiture
Differences
Application cases apply for some rights that have not enjoyed yet
Refer to future rights
Forfeiture cases refer to cases the existing rights being taken away
Refer to existing rights but being taken away
Related to the principle of the right to be heard
And related to the rule of no biased and no conflict of interest
The rule of natural justice the rule against biased and the right to be heard will apply
most often to these kind of cases either application cases or forfeiture cases
Apart from reading ordinance that might relate to this situation the rule of natural
justice should be raised
Generate some more rights named legitimate expectation (use legitimate than lawful)
The affected parties whose interest has been adversely affected by the decision made
by the public authority should have the legitimate expectation for the change
Forfeiture cases chance to get my degree take away the livelihood or job livelihood
issue
If saying the disciplinary problems and the person should at least have been provided
the disciplinary proceedings to defend themselves that is the legitimate expectation
Refer to policy change will also generate legitimate expectation even for application
cases
HKTV previous the criteria apply now changed so the applicant also enjoyed the
right to be heard or at least the consultation
might also generate legitimate expectation for the affected party who they have not
enjoyed the right yet they only plan to apply the right
The applicants is the people easily affected when the policy changes
Application for government fund
Change refers for the long-term practice or long-term convention
Legitimate expectation also refer to the change of policy refer to a serious decision
which was previous made the government has approved so many licenses before now
the decision will be changed and it might fall under the judicial review scope for the
change of policy either made by government or made by the public authority and have
the duty to inform the affected parties
AG vs NG Yuen Shiu (1983) 2AC629
Ø involving the change of policy
The applicant was born in china the immigration matter so came to give birth in HK
after CY Leung assumed the position of CE
In 1992 HK is very generous and the policy named reach base policy whereby illegal
entrance will be allowed to remain once they have reached the urban areas
Once the person reached the NT they will get the right of abode in HK in 1990s (very
generous to the mainland immigrants)
After 1983 the policy changed because of too many mainland illegal immigrants the
policy was spoken in the radio and said the policy will be changed
NG Yuen Shiu arrived right after the change of policy
She was not the HKPR and no duty to give her the right but under the public law
although he did not have that right before basically an application case because of the
change of policy she has the legitimate expectation to have the right to be heard
The right to be heard is reflected in the form of interview they would not be expetracy
immediately at least they would be interviewed case by case basis the chance of being
interviewed to let them speak their situation generate them the legitimate expectation
to enjoy the right to be heard
Usually refer to the legitimate expectation in the application case to enjoy the right to
be heard once people have the change of policy
Of course legitimate expectation apply also in the forfeiture case because the change
the court always sympathetic with the affected party if the existing right was taken
away
Each illegal entrant will be interviewed and treated on its merit
The question is that whether the applicant acquire the right to land or remain in HK
WONG Chik Wai (1986) HKLR 478 (HC)
Applied for a massage license application case
The applicant applied the license in sham shui pu there are some ordinances and
requirements for the applicants to justify whether the establishment for a massage
shop is suitable and fit in the environment of public housing estate
In sham shui po the polulated area in 1985 a massage license may mean something
more
Public interest came into the picture whether the police would allow the application
whether it fits in the sham shui po environment has come into consideration
How the court consider differently between application cases and forfeiture cases
Judgment page 2 para 2
An order for certiorari to quash the decision
only a public law administrative law remedy and not apply for the private law
An order for mandamus is a remedy to compel the decision-maker to give reasons and
be reconsidered the decision
The remedy is not about the money and want them to do something more
The decision to refuse the application of the license
The massage established with the ordinance massage establishment ordinance
Queens pier case the antique monument ordinance protect the antiquities
Facts of the case: by written application
A survey was conducted
The decision-maker actually before making the decision the team also conducted the
survey 27 out of 35 say no they objected to grant the massage licenses for the
application
The requirement of the massage licenses need to consider more detailed
Page 6 Section (3)
Licensing authority is the public authority the statue
Para starting with the "Proceeding"
How apply
They want the reasons for the refusal Mr. Luk on behalf of the applicant the
commissioner is the decision-maker
Deny the opportunity of making representations

The case is to be remembered

Whether or not the decision-maker needs to give the reasons for the application case
the applicant has not enjoyed the license yet
Whether the representation must be conducted orally how about the written
representation
the decision-maker did provide the chance to the applicant but not orally
The decision-maker invited the applicant to submit the information in writing
Whether the right to be heard must be orally in person
Can it be done in writing such as correspondence
apply to HKTV they made a lot of written application to support their own claims but
not oral presentation in their correspondence
The decision needs to be made whether the written representation is sufficient to be
the right to be heard for application case
Page 4 last para starting with "thereafter"
Relief means remedies quash and reconsider the decision
Order 53
Not have the elements of having the maritourious case application must prove at least
an arguable case daily life case not political case
The decision is defective
Refuse to give reasons
Deprive the opportunity to make representation the right to be heard has been
deprived refer to oral right the right to be orally heard in fact the applicant has been
given the written representation
Livelihood being detrimentally or adversely affected by the decision
Breach the rule of natural justice the doctrine of fairness (fair procedure)
The case of the applicant
Unreasonable
The decision is manifestly unreasonable. Refer to the wednesbury unreasonableness
The decision-maker No evidence to refuse
Take into irrelevant matters claim that the survey is irrelevant people not really
understand what they will really do in the future whether the resident object to the
application
Irrelevant for consideration of public interest
the standard is a third reasonable man test
Not taken into relevant matters
Applicant argue that the applicant is a very experience Chinese medicine expert that is
relevant
Page 7 second para starting with "it is not disputed"
Two procedural grounds
refused to refer to former common law cases
Request for the oral hearing
Para starting with "First, there are what may be called the forfeiture cases"
Key terms: forfeiture case falls under the change of policy legitimate expectation
Page 8 para starting with"Megarry VC"
All JR cases if there is related ordinance a written law need to consider unless you can
safely say breach the basic law ordinance
Otherwise few cases like ng ka ling or others can challenge the ordinance
The authority must comply with the procedure required by ordinance
They consider first the section 6(3) of the massage establishment ordinance need to
refer to
Sufficient interest refers to the reputation and financial standing also related to the
person fit in a proper person that can be considered
Public interest should be taken into consideration where the development will ruin the
enviornment of public housing estate
Public interest case such as Chu Yee-wah the HK zhuhai and Macao bridge whether
the development is more important in public interest than environmental protection
Development necessity vs protection of environmental interest
Whether should develop the northern east territorist lantou island that is the
development needs needs housing the development of circulate cities and towns
heritage preservation like MTR shatin line central and shatin line realize some
heritage the world from ancient dynasty balance of public interest can be argued
depends on lawyers submission development is higher needs than the preservation of
the environment
Page 9 para starting from "Megarry VC made his finding in the following way"
No need to give reasons
Page 11 para starting from "I think it is clear that there is no general obligation"
Application case apply for the right that they have not enjoyed yet
Not a statutory duty to give reasons
HK Zhuhai Macao Bridge related ordinance did have a clause requiring the director of
the environment to give reasons statutory duty in common law no principle
If there is no ordinance to say that the reason is required to be given may not have the
duty to give the reasons
Common law requires to give the right to be heard
But common law does not say clearly whether the right to be heard must be orally
Application cases always happen in the education institute common law in uk
People who apply for the degree program being rejected the court said there is no duty
for the university to give the reason on rejecting the application
If they get the interview they may have the higher chance to ask for reasons but it is
also subject to the circumstances if the rules of the university said that objection of the
interview is subject to their discretion may not enjoy the rights to be given the reasons
for application
HKTV
the applicants also keep asking the reasons from the government but the government
did not give the reasons because once the reason is given the reason is judicially
reviewable so the government keep silent on the reasons
The court found there is no ground for them to give reasons
The court also accepted that the written representation is enough
Refusal to grant on the ground that he was not satisfied that the massage
establishment would not be operated in a manner contrary to the public interest. He
informed the application of his decision.
The application applied for judicial review arguing that the licensing authority had
erred in that he had not given reasons for his refusal and he had not given her any
notice of information against her.
Case to be remembered
Reasons need not to be given
In application case, written application can be sufficient at the time that right to be
heard
Under the change of policy the person enjoy the legitimate expectation to have the
right to be heard
Council of Civil Service Union and others vs Minister for the Civil Service (GCHQ)
[1984] (HL)
Related to national defense
The case is about the trade union the council of civil service union against the
minister for civil service
Union relates to rights such as union rights and staff rights the minister for civil
service would like to reduce certain kind of fetch benefits such as less paid holiday
less allowance taken away some welfare because of the budget cut UK government
was pretty poor in 1980s like to cut the budget the action was about whether the
minister for civil service action could be subject to judicial review because the power
of minister was deprived from the prerogative
Whether the minister enjoy the ground of national security
The minister would like to ask for judicial immunity the kinds of act act of state such
as national security and foreign affairs
The council is called the government headquarters service communications branch
of civil service not an ordinary branch it belongs to communication any related to
communication may relate to intelligence like CIA FBI MI6 in UK
Although only civil service they are the cook cleaner working for the council their
benefits and their rights
Could they argue they have nothing to do with the national security
The council itself may relate to the state secretes
The cook
should the workers purely because working for such department could not enjoy the
right under law if they have been mistreated
The court need to discuss whether they should accept the case
The minister claimed that the case should not be opened to judicial review at all
judicial immunity
1979 to 1981 disputes between the government
Lay on the train and railway block the traffic dispute between the government and
national trade union about condition of the service
An instruction was issued without prior consultation with the staff at GCHQ.
Instantly means no hearing the right to be heard has been deprived
The instruction derive from the prerogative means the king can do no wrong
discretionary not subject to judicial review
Decision-makers' defense:
Requirement of national security overrode the duty to consult staff
Whether the public interest is so high that overrode the duty to consult the public in
the ordinary sense public museum
Marginally national security issue

Held:
Irrespective of whether how the society is directly immune delegate power will not
necessarily immune
Not apply to HK not have the prerogative power cannot say the prima faci not subject
to judicial review because of the minister delegate the power
the government sought to rely on reasons of national security to justify a decision or
action the courts could not accept a mere assertion that they have immune the court is
unwilling
The court asked them to provide at least some emails correspondents to prove the
government or council has done the work in relation to the state security national
security
If people get known we cut the budget what did our enemy may think on intelligent
branch it will adversely affected the security of the uk by the third country
Cannot let people know how to cut the funding cannot consult them beforehand
boycotted made our line disruptive may affect the national security can do something
harmful
The court whether the decision will effect on the national security the court say they
cannot have the mere assertion once the minister produce the evidence the decision
not to consult was pure but national security
Legitimate expectation
GCHQ's concepts
People raise the ground on national security
People who ask for judicial immunity
The applicant want to get the legitimate expectation for the change of policy
Forfeiture cases because they reduced the benefits they take away the benefits
Whether the public interest also overrode without prior consultation
Reasons of national security that overrode any right of JR which the appellants had
arising out of the denial of their legitimate expectation of consultation.
common law principal Modern grounds were established for judicial review
Illegality irrationality procedural impropriety
Held: I also would dismiss this appeal for one reason only, namely on the ground of
national security.
If not for national security the trade union will shall win because the case deprived
their right to be heard and based on the legal ground the case deprived their legitimate
expectation but the ground for the national security stands so the court had say that
the trade union lost
The common law courts also paid high respect to the defense like national security
and foreign affairs

Lecture 4

The cases the kind of defense is available

GCHQ (usually refer to the trade union case)
To be relied on the right to be heard has been deprived before the decision was made
and decision involved the change of policy
Full name of the case: Council of Civil Service Union and others vs Minister for the
Civil Service (GCHQ) [1984] (HL)
General communication of the headquarter
The case related to the national security
The trade union complaining or claim cutting their benefits
Refer to take away of existing rights forfeiture case adversely affected the status
quo
Grounds rely on:
The decision involve change of policy
The policy of benefit will generate the right of legitimate expectation of consultation
They expect the right to be heard before the decision was made prior consultation
Argument:
Trade union worked for the government so they all spent government money the
decision-maker is the government the civil service the minister spend the public
money they should fall under the public authority or government body
The instruction was issued without prior consultation with its staff
The problem of the case is no prior consultation
The court held:
They even claim the defense
The defense:
Every decision-maker will claim their discretionary power to lower the benefits
They claim the elements more that is the national security the ministers defense
The power should be so absolute and should not be subject to judicial review because
the minister was appointed by the queen
Because the requirement of national security overrode
when two public interest had to fight with each other which one would prevail
Whether the national security prevail or the right to be heard prevail both talk about
the public interest the right to be heard refers to the administrative of justice therefore
Administrative of justice vs national security
If follow every steps required by law especially related to judicial review the
procedure justice or the administrative justice and then it would be the right to be
heard
Would the administrative justice be undermined before the national security
overriding
Which overriding the other balance of the interest
Once the minister produce the evidence that her decision is not to consult related to
national security
The minister need to produce the evidence and not just claim by decision relates to the
national security need to at least produce prima facie elements
The minister produce the correspondent by saying that it indeed relates to the national
security
If the budget cut for the government it may lead other country impression that the
defense of UK will get weakened
Reasons of national security overrides the right of judicial review where there should
be legitimate expectation of consultation generate because of change of policy
Right of abode case even the pregnancy women case week 10 silent case also have the
change of policy even we have the cut-off date
Over the period of change the legitimate expectation for the right to be heard the HK
case NG Yuen Shiu
Application by JL Mitchell and Others for an order of certiorari [1976] (HC)
Happened in CUHK
The department head is JL Mitchell and others they were the staffs of the journalism
department and they launched the judicial review on the behalf of the department
They have a publication called shatin news published comments attacking the Senate
of CUHK which was a confidential document
Senate was offended and considered the motion that the teaching staff of the
department been censured for the failure to perform their duties
They published the confidential document of the university and the university was
very angry and wanted to penalize the staff claiming they did not keep their
information confidential and kind of failure to perform their duties
The general view was that the teaching staff of the department committed a clear and
gross breach of confidentiality so they are censured the short news were abandoned
Forfeiture case they censured the staff and abandoned the publications that is taken
away the right to publish or press
Nowadays human right has been taken away subject to bills of right ordinance basic
law provisions article 27 regarding the freedom of expression
When not find anything in the specific provision and then go to article 39 rights for
election universal suffrage is debatable because of the reservation in the article 25 of
ICCPR
Article 39 of BORO just like article 25 of the Basic Law can be always relied upon
every case can use this but they are weak if have some specific and then use the
specific provision
Related to the constitutional right
the right to publish has been deprived
The department did not offer consultation and for this case the right to be heard under
the rule of natural justice has also been deprived
An order of certiorari for the purpose of quashing the resolution of the Senate on the
grounds that the Senate had no authority to pass such a disciplinary motion which
must therefore the ultra vires and void
The Senate has no authority means that the Senate has no jurisdiction
The source to determine whether the Senate has the authority to pass the disciplinary
motion or not have to look at the ordinance (CUHK ordinance) to see if the university
head has such authority like the president of the Baptist university to defend that they
have the authority subject to the school rules to instantly suspend the learning right of
the two students sort of the leaders of the occupy action to the language center section
10 (1) (Baptist university ordinance or the internal regulations)
When challenging the authority and better look at the ordinance
Common law case: not have the authority may be difficult but rely on the common
law always provide the right to be heard
The court held: the authority has been forgotten has deprived the right to be heard of
the journalism department and that was wrong procedure
The right to be heard is also named the audi alteram partem rule
However the case is another strong defense for the decision-maker because CUHK
claims that it relates to the confidential documents so the staff did breach the
confidentiality rule so the court said the order of the certiorari was not granted
Defenses for decision-maker have overrode the right to be heard
GCHQ: they claim national security
LJ Mitchell: they claim confidentiality
Two case related to the different kinds of scenario and both of them related to the
forfeiture existing rights related to the right to be heard being deprived so no prior
consultation before the decision was made but the decision-maker has strong defense
which was accepted by the court the applicants lost
the right to be heard is not absolutely protected it may vary to different kinds of
information and circumstances