Hong Kong Case Law: Decisions & Judgments

Topic

Public vs private function

Legal area

Court

21 Jun 2013

HONG KONG RIFLE ASSOCIATION v. HONG KONG SHOOTING ASSOCIATION

Citation

HONG KONG RIFLE ASSOCIATION v. HONG KONG SHOOTING ASSOCIATION
Court

Court of Appeal
Case number

CACV174/2012

The HKSA is a private body whose powers to admit or reinstate members derive from its memorandum and articles of association; those decisions do not amount to public law functions and are not amenable to judicial review; Datafin is distinguishable and prior private proceedings demonstrate the HKRA treated the matter as private, so the appeal is dismissed.
16 Mar 2009

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE

Citation

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL98/2007

The Court held the Director's decisions to grant the short-term waivers and the alleged decision not to terminate them were, in essence, private law landlord decisions (commercial function) and not amenable to judicial review; alternatively, even if reviewable, the Director had considered relevant planning and environmental advice, gave adequate reasons in context, no clear refusal decision to terminate was established, and the decisions were not irrational; applicants lacked sufficient standing and the applications were dismissed.
7 May 2008

RANK PROFIT INDUSTRIES LTD v. DIRECTOR OF LANDS

Citation

RANK PROFIT INDUSTRIES LTD v. DIRECTOR OF LANDS
Court

Court of Appeal
Case number

CACV94/2007

The Director, when negotiating and offering terms for lease modification, was exercising a private landlord function not subject to judicial review; therefore the two letters/offers were not reviewable public-law decisions and the applicant's judicial review claim failed. The appeal is dismissed and the respondent is entitled to costs (order nisi).
21 Nov 1997

THE HONG KONG AND CHINA GAS CO LTD v. THE DIRECTOR OF LANDS

Citation

THE HONG KONG AND CHINA GAS CO LTD v. THE DIRECTOR OF LANDS
Court

Court of First Instance
Case number

HCAL50/1997

The Director of Lands' decision was amenable to judicial review because it involved the exercise of public functions in balancing competing public interests; however the 1987 policy statement and subsequent correspondence were not sufficiently clear and unambiguous to give rise to a legitimate expectation to extend the lease to 2047, and the Wednesbury challenge failed because the Applicant sought a long-term extension to 2047 rather than a short interim extension.
31 Dec 1990

RE TAI SANG WAI

Citation

RE TAI SANG WAI
Court

Court of First Instance
Case number

HCMP2379/1990

The court held that the Government, in the circumstances of this lease and agreement, was acting in a contractual landlord capacity and the Building Committee's role in approving development under the agreement was private in nature; the issues advanced by C.O.D.C.L. are breaches of contract rather than public law matters and therefore not properly the subject of judicial review; accordingly the ex parte leave was set aside.
9 Dec 1986

THE HOME RESTAURANT LTD. v. THE ATTORNEY GENERAL

Citation

THE HOME RESTAURANT LTD. v. THE ATTORNEY GENERAL
Court

Court of First Instance
Case number

HCMP2135/1986

The court held that although it is arguable that grants of Crown leases may engage public law and thus be reviewable, the Joint Declaration and accompanying government announcements are not incorporated into municipal law and cannot be construed by the courts to create a justiciable legitimate expectation; accordingly the applicant's claim disclosed no prospect of success and the leave granted was set aside and the motion struck out.

Hong Kong Case Law

HONG KONG RIFLE ASSOCIATION v. HONG KONG SHOOTING ASSOCIATION

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE

RANK PROFIT INDUSTRIES LTD v. DIRECTOR OF LANDS

THE HONG KONG AND CHINA GAS CO LTD v. THE DIRECTOR OF LANDS

RE TAI SANG WAI

THE HOME RESTAURANT LTD. v. THE ATTORNEY GENERAL