Hong Kong Case Law: Decisions & Judgments

Topic

Ultra vires challenge

Legal area

Court

29 Apr 2024

LAI CHEE YING v. THE COMMITTEE FOR SAFEGUARDING NATIONAL SECURITY OF THE HKSAR AND ANOTHER

Citation

[2024] HKCA 400
Court

Court of Appeal
Case number

CACV166/2023

Reading NSL Article 14 together with the NPCSC Interpretation produces a clear and unambiguous legislative intent that decisions of the NSC are not amenable to judicial review; therefore the NSC Decision and the Director’s Decision implementing it are not subject to judicial review and leave to apply for judicial review was rightly refused; the appeal is dismissed.
3 Aug 2023

LAI CHEE YING v. THE COMMITTEE FOR SAFEGUARDING NATIONAL SECURITY OF THE HKSAR AND ANOTHER

Citation

[2023] HKCFI 1991
Court

Court of First Instance
Case number

HCAL566/2023

The court ordered the applicant to pay the putative respondents' costs of the JR proceedings on an indemnity basis and to pay the Secretary for Justice's costs in the OS proceedings on a party‑and‑party basis up to 13 April 2023 and on an indemnity basis thereafter, because the JR was wholly unmeritorious (NSC Decision final and not reviewable under the NPCSC Interpretation), the parties provided full substantive argument, and the applicant unreasonably persisted after a clear without‑prejudice costs warning.
31 Dec 2020

TELEVISION BROADCAST LTD v. COMMUNICATIONS AUTHORITY

Citation

[2020] HKCFI 3180
Court

Court of First Instance
Case number

HCAL47/2017

The court held the Relevant Paragraphs (Paragraph 1 Chapter 11 TV Programme Code and Paragraph 10(a) Chapter 9 TV Advertising Code) are sufficiently certain and prescribed by law, pursue legitimate aims (consumer protection and viewing interests), and are proportionate. The CA acted within its statutory powers (BMPO/BO/licence conditions). The CA had reasonable factual grounds to find the KFC and Scoop segments breached the Codes, its decisions were not irrational and gave adequate reasons, and the HK$150,000 penalty was within statutory limits and not excessive. The enforcement/appeal scheme…
12 Oct 2020

HAIDER ALI v. SOCIAL WELFARE DEPARTMENT

Citation

[2020] HKCFI 2611
Court

Court of First Instance
Case number

HCAL2007/2020

Leave to apply for judicial review refused because the applicant failed to comply with mandatory procedural requirements, wrongly named the Social Welfare Department as respondent when the Regulation was made by the Chief Executive in Council, and raised no arguable vires or constitutional ground; the mask regulation was within statutory power and proportionate to the public health objective.
3 Feb 2015

THE REAL ESTATE DEVELOPERS ASSOCIATION OF HONG KONG v. TOWN PLANNING BOARD

Citation

THE REAL ESTATE DEVELOPERS ASSOCIATION OF HONG KONG v. TOWN PLANNING BOARD
Court

Court of First Instance
Case number

HCAL58/2011

The four Board decisions were quashed because the Board failed to demonstrate that all members participating in the decisions were fully apprised of the applicant's detailed representations (specific procedural unfairness) and failed to discharge its duty to make sufficient inquiries (Tameside and s3(2) TPO), including consideration of interaction with SBDG; ultra vires and proportionality challenges were rejected as binding appellate authority upheld Board power to impose spot restrictions.
22 Dec 2011

TANG YEE YU v. 香港銅鑼灣社會保障辦事處

Citation

TANG YEE YU v. 香港銅鑼灣社會保障辦事處
Court

Court of Appeal
Case number

CACV207/2010

The rent allowance under the CSSA is a reimbursement tied to actual rent up to a ceiling; when HKHA reduced or waived rent the recipient's need (and thus the reimbursement) was reduced or extinguished, so the Director did not receive money for the claimant's use and there was no unjust enrichment or ultra vires act; the appeal is allowed and the Small Claims Tribunal decisions dismissing the claimant's claims are restored.
21 Nov 2011

TURBO TOP LTD v. TOWN PLANNING BOARD

Citation

TURBO TOP LTD v. TOWN PLANNING BOARD
Court

Court of First Instance
Case number

HCAL52/2011

The TPB acted within its statutory powers under the Town Planning Ordinance (including the broad scope afforded by s.4(1) and its proviso) when it rezoned the site to C(1) and imposed a minimum 800 public parking space requirement (subject to minor relaxations); the measures constituted area zoning and preservation of a public asset, not unlawful micro‑management of a specific building, and the challenges on inconsistency, irrelevant considerations, procedural unfairness and discrimination fail.
30 Dec 2009

CHAU CHIN HUNG, EDMOND AND OTHERS v. MARKET MISCONDUCT TRIBUNAL AND OTHERS

Citation

CHAU CHIN HUNG, EDMOND AND OTHERS v. MARKET MISCONDUCT TRIBUNAL AND OTHERS
Court

Court of Appeal
Case number

CACV62/2009

Section 257(1)(c) authorises the Market Misconduct Tribunal to make perpetual cease and desist orders specifying any form of market misconduct (whether or not that misconduct was specified in the initiating notice or previously the subject of a finding); the word "again" only acknowledges past misconduct and does not limit the tribunal to prohibiting only the types alleged in the notice; subsection 257(5) permits orders irrespective of likelihood of future misconduct; the Tribunal's finding of price rigging based on recklessness was open on the evidence and the appeals must be dismissed.
7 Dec 2005

HKSAR v. KIT CHOY DEVELOPMENT LTD

Citation

HKSAR v. KIT CHOY DEVELOPMENT LTD
Court

Court of First Instance
Case number

HCMA62/2005

The Court held that under the statutory scheme of Cap.502 the offence under s5(7)(b) is constituted by failure to comply with a Fire Safety Improvement Direction and that the statute contemplates limited, specified reasonable excuses (s5(8)) rather than a general public law challenge to the Director's exercise of discretion; consequently, and having regard to binding authority (McMahon J approved by the Court of Final Appeal), the reasonableness of the Director's decision is not a defence available in the magistrates' criminal trial and the appeal against conviction must be dismissed.
4 Jun 2004

STEP IN LTD v. NOISE CONTROL APPEAL BOARD

Citation

STEP IN LTD v. NOISE CONTROL APPEAL BOARD
Court

Court of Appeal
Case number

CACV302/2003

The Court held the 'not audible' requirement in the Noise Abatement Notice was within the powers granted by section 13(1) of the Noise Control Ordinance and was not unreasonable, uncertain or ultra vires. The Technical Memorandum does not confine the Authority to decibel-based limits and the Authority's practice of pre-setting levels and liaising with complainants provides a practicable and fair mechanism for enforcement. The applicant's arguments about uncontrollable background noise and potential strict liability did not render the requirement unlawful. Accordingly the appeal was dismissed.