Hong Kong Case Law: Decisions & Judgments

Topic

Delegation of statutory powers

Legal area

Court

7 Dec 2012

TAN SHIH YING v. CITY UNIVERSITY OF HONG KONG

Citation

TAN SHIH YING v. CITY UNIVERSITY OF HONG KONG
Court

Court of First Instance
Case number

HCAL36/2012

The court held there was no public law element in the applicant's complaint: the University's decision not to renew a fixed-term contract and the deliberate decision not to apply internal redundancy procedures did not amount to a breach of the governing Ordinance or the performance of a public duty; breaches of internal employment procedures are private law matters amenable to Labour Tribunal or contractual remedies, not judicial review. Accordingly leave to amend was refused and the judicial review dismissed.
3 Sept 2008

KOON WING YEE v. THE SECURITIES & FUTURES COMMISSION

Citation

KOON WING YEE v. THE SECURITIES & FUTURES COMMISSION
Court

Court of Appeal
Case number

CACV369/2007

The appeal was dismissed because the judicial review challenge was premature and hypothetical: the SFC was entitled to conduct its statutory investigation and the Bill of Rights does not give a person protection from legislation compelling answers to investigators; any breach arising from improper use of answers or from future Market Misconduct Tribunal proceedings can be the subject of a later challenge when such use or proceedings materialize, so the lower court's dismissal was upheld.
1 Feb 2007

RE KOON WING YEE

Citation

RE KOON WING YEE
Court

Court of First Instance
Case number

HCAL7/2007

The court held the delegation challenge fails because the Ordinance expressly empowers the Commission to delegate functions including forming the opinion to commence an investigation; disgorgement orders are restitutionary not penal and do not convert Tribunal proceedings into criminal proceedings; however the discrete Bill of Rights issue (whether statutory removal of the right to silence before the Tribunal breaches Art.11) raises a value judgment requiring fuller argument and leave to apply for judicial review on that limited issue is granted.
19 Nov 1999

LAM SIU TAI v. THE COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

Citation

LAM SIU TAI v. THE COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER
Court

Court of First Instance
Case number

HCAL68/1999

The Prisons Ordinance s24(2) authorizes the Commissioner to delegate to senior officers and that specific delegation power indicates a contrary intention displacing IGCO s43(2); therefore the Commissioner should have delegated the hearing of the appeal rather than refer it to the Chief Executive. On review the Commissioner is limited to imposing only such punishments as the Superintendent could have imposed in the first instance (eg maximum one day's wage under r247), so the $20,000 fine was invalid and the Secretary's subsequent $5,000 substitution is also invalid; the impugned decisions are…
8 May 1991

RE TRAN QUOC CUONG AND ANOTHER

Citation

RE TRAN QUOC CUONG AND ANOTHER
Court

Court of First Instance
Case number

HCMP1506/1990

The Director was entitled to order immediate detention of Vietnamese arrivals under s.13D without individualized prior interviews and without specifying a particular place; s.35 provides authority for detention and transfers and operates with s.13H which lawfully permits designation of places such as Stanley Prison; delegation under s.43 IGCO of place-specification to senior officers was valid; transfers for maintenance of good order and security were lawful and non‑punitive; detention under the statutory scheme precluded successful false imprisonment claims; applicants lacked sufficient inte…
16 May 1986

RE CHEUNG YUK-SAI

Citation

RE CHEUNG YUK-SAI
Court

Court of First Instance
Case number

HCMP698/1986

The High Court quashed the Immigration Tribunal's decision and remitted the matter to the Immigration Tribunal to determine first whether the power to grant permission to stay was delegated to Immigration Officers under s.43 of the Interpretation and General Clauses Ordinance; if delegation is found, the Tribunal must then determine whether the Immigration Officer in question granted permission; limited cross-examination of deponents was permitted but further evidence by the applicant was not allowed at this stage; costs reserved.
31 Jan 1985

CHEUNG KWOK KUEN v. YOUNG TIN KIN

Citation

CHEUNG KWOK KUEN v. YOUNG TIN KIN
Court

Court of Appeal
Case number

CACV175/1984

The appeal was dismissed because the Government Gazette notice (General Notice No.38, 7 January 1983) conclusively established that the Housing Authority had delegated powers under s.24(1) to Housing Assistants, thereby validating the defendant's authority to seize the hand‑cart as an obstruction and/or nuisance under s.24(1)(d); admission of the Gazette as fresh evidence was appropriate in the circumstances.
14 Jan 1974

RE Case No. C. 4127 of 1973

Citation

RE Case No. C. 4127 of 1973
Court

Court of First Instance
Case number

HCMP444/1973

The magistrate's ruling was incorrect: the authorization under s.7 of the Legal Officers Ordinance delegated the Attorney General's power to the person for the time being holding the office of Assistant to the Attorney General and did not lapse merely because the Attorney General who made the authorization left office; accordingly the consent to prosecute signed by the Assistant remained valid and the orders applied for were to issue.