CHINA (HONG KONG BAR): An Introduction to Administrative & Public Law: The Bar

Hong Kong: Administrative & Public Law Overview 

The Administrative and Public Law field in Hong Kong plays a crucial role in upholding the rights and freedoms of its citizens. In recent years, we have seen an encouraging development on the administrative law front, with the Hong Kong Courts pushing back on a few overreaches of executive power, leading to some modest advancements in LGBT+ rights in particular.

While the sector has come under pressure owing to the significant changes in the political climate of the city in recent years, it is however manifest that the Hong Kong Courts are still robust in determining constitutional challenges against statutes, as well as other judicial challenges against the policies and decisions of the government and other public bodies. A notable example is the landmark case of Kwok Cheuk Kin v Secretary for Health [2022] 5 HKLRD 348 where the Court held that there was no power for the Secretary for Health to overturn or invalidate a specified medical exemption certificate or a selection of such specified medical exemption certificates issued by private doctors under the “Vaccine Pass” regime. As the Court remarked in the very first paragraph of that judgment, “A Government minister gets his or her legal powers from legislation – and not from an announcement made in a press release”.

Judicial Review 

Lately, judicial reviews seeking to promote equality and eliminate discrimination based on sexual orientation or gender identity have become remarkably notable.

Most recently, in Q and Tse Henry Edward v Commissioner of Registration (2023) 26 HKCFAR 25, the Court of Final Appeal (“the CFA”) gave a landmark judgment in favour of female-to-male transsexuals who sought to amend the gender markers on their Hong Kong identity cards without undergoing full sex re-assignment surgery. The CFA found that such policy violates the applicants’ right to privacy (which includes the right to gender identity and the right to physical integrity) under Article 14 of the Hong Kong Bill of Rights and is therefore unconstitutional.

In contrast, the Court of Appeal rejected the appeal brought by Jimmy Sham, a well-known advocate for LGBT+ rights, in the case of Sham Tsz Kit v Secretary for Justice [2022] 4 HKLRD 368. The appeal related to a judicial review that aimed to achieve: (1) same-sex marriage, (2) alternative means of legal recognition of same-sex partnerships (such as civil unions or registered partnerships), and/or (3) recognition of foreign same-sex marriages. The Court of Appeal upheld the decision of the Court of First Instance and dismissed Sham’s legal challenge. The decision is regarded as a disappointing setback to Hong Kong’s LGBT+ community. The good news is that Sham has successfully obtained leave to appeal to the Court of Final Appeal, scheduled to be heard in late June 2023.

Commercial Judicial Review 

Apart from safeguarding the rights of marginalised communities and minorities, we are also seeing an increasing trend in commercial judicial reviews in Hong Kong. A growing number of companies and individuals aggrieved by decisions of public bodies or law enforcement agencies have resorted to judicial review in a bid to protect their valuable commercial and business interests, adding new dimensions to the overlap between commercial law and public law.

In this kind of commercial judicial review cases, the range of legal arguments is as wide and constantly changing as in public interest cases. Corporate applicants not only rely on the traditional grounds of illegality, irrationality, procedural impropriety and legitimate expectation, but also on human rights or constitutional grounds to protect their interests, in particular their right to property.

Legal challenges have been raised against the “No Consent Regime” operated by the Commissioner of Police, whereby bank accounts are “informally frozen” before a restraint order is obtained from the Court. There has also been a rise in legal challenges against the delisting of companies publicly listed on the Stock Exchange of Hong Kong (“the Stock Exchange”).

Recently, the Court of Appeal in Tam Sze Leung v Commissioner of Police [2023] HKCA 537 affirmed the legality and constitutionality of the “No Consent Regime”, overturning the earlier decision of Mr Justice Coleman (the Judge in charge of the Constitutional and Administrative Law List) declaring the regime ultra vires and incompatible with the right to property under the Basic Law. Notwithstanding that the “No Consent Regime” has been upheld from a systemic point of view, the lawfulness of individual letters of no consent issued under this regime are still open to public law challenges depending on the facts of individual cases.

Public Law Challenges 

Turning to challenges against delisting decisions, there has been an increase in public law challenges in this regard as a result of the more proactive approach taken by the Stock Exchange in recent years towards cancelling the listing status of companies whose trading has been suspended for a long period of time. For example, in Up Energy Development Group Ltd v Stock Exchange of Hong Kong Ltd [2021] HKCFI 3813, the applicant company mounted a judicial review challenge against its delisting on the grounds of procedural impropriety and disproportionate interference with the right to property. Notably, the Court took the view that the right to property under the Basic Law is not engaged by the delisting decision, in that the listing status is not within the concept of “property” and, even if it is an asset, the listing status is not “property” which belongs to the company. Such understanding of the concept of “property” appears to depart from earlier rulings by the Hong Kong Courts (albeit in the company law context) that a company’s listing status is a recognised form of asset.

The Importance of Public and Administrative Law 

The above cases and analysis underscore the importance of public and administrative law in safeguarding not only human rights, but also fairness to individuals and companies in Hong Kong. For decades, the Hong Kong Courts’ interpretation and enforcement of the Basic Law and the Hong Kong Bill of Rights have been instrumental in protecting the rights of minorities, promoting equality, and ensuring that public authorities act within the confines of the law. While challenges remain, public and administrative law will continue to serve as a bulwark against encroachments on the rights and freedoms of Hong Kong citizens.