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You may refer to your textbook first. And answer the questions.

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A: Find example to explain the principle of "non-retrospectivity?"

B: How to show law must be make public? Why?

C: Law needs to have certain degree of stability. In what situation it can be changed? Find Example.

D: What is principle of "non-retrospectivity?"

--> summary: How does it reflect the significance of rule of law?

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A: What is common law?

B: What is statutory law?

C: How does basic law reflect Hong Kong has "one country, two systems"?

D: Which law states that we should abide the law? Who are 'we'?

--> summary: How does it reflect the significance of rule of law?

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A: What is judicial independence?

B: Find an example to show the judiciary is not subject to interference from executive authorities or the legislature.

C: Find an example that reflects guaranteeing the power of the judiciary

D: Find an example that reflects how judicial independent prevent government abuse of power?

--> summary: How does it reflect the significance of rule of law?

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A: Find an example to show judges and judicial personnel must maintain neutrality.

B: Find an example to show judges and judicial personnel must make judgements based on law and facts.

C: Find an example to show how does judicial independence guaranteeing the judges shall not be dismissed easily?

D: How does it judicial independence reflect the significance of rule of law?

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A: What is judicial review? What is the purpose of judicial review?

B: Who can request judicial review?

C: In what situation can someone request judicial review?

D: Find one example of judicial review?

--> summary: How does it reflect the significance of rule of law?

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A: Find one example of judicial review that related to illegality.

--> summary: How does it reflect the significance of rule of law?

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A: Find one example of judicial review that related to irrationality

--> summary: How does it reflect the significance of rule of law?

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A: Find one example of judicial review that related to procedural impropriety

--> summary: How does it reflect the significance of rule of law?

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How does it reflect the significance of rule of law?

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How does it reflect the significance of rule of law?

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1. Protecting human rights

2. Forming good order

3. Establishing a fair social environment

4. Promoting economic development and prosperity

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An individual or group can request a judicial review in a situation where a public body has made an unlawful or unreasonable decision that directly and adversely affects them

. Judicial review focuses on the lawfulness of the decision-making process, not on whether the outcome itself was "correct" or "fair".

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Judicial review is a court process where a judge examines a decision made by a public body to determine if it was lawful, not if the decision was the "correct" one.

Purpose:

The purpose of judicial review is to ensure that public bodies act lawfully and fairly, by allowing courts to scrutinize the decision-making process of government departments, lower courts, and other administrative bodies.

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Any person or organization can request a judicial review, provided they can demonstrate to the court that they have a

"sufficient interest” in the matter they are challenging.

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Common law is a legal system primarily developed through judicial decisions and case precedents, rather than through statutes alone. It is characterized by stare decisis, or the principle that judges must follow the precedents set by previous rulings in similar cases.

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a recent case where a patient challenged the Hospital Authority's handling of a medical complaint, seeking a review of the Public Complaint's Committee’s decision to reject his claims about a surgery. This case, Leung Tsan Chung v Dr Tony Ko Pat-sing, illustrates the process of judicial review being used to challenge the legality of an administrative decision, specifically the procedures followed and the reasonableness of the outcome, rather than just the correctness of the decision itself.

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A key case for judicial review on irrationality is

Associated Provincial Picture Houses v Wednesbury Corporation[1948] 1 KB 223. This established the "Wednesbury unreasonableness" test, which states that a decision is unlawful if it is "so unreasonable that no reasonable authority could ever have come to it". The threshold for this test is high, and courts will not interfere simply because they disagree with a decision or believe there were better options available.

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Key Reflections of Judicial Independence in the Rule of Law

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Key Reflections of Judicial Independence in the Rule of Law

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Judicial independence is a

cornerstone and a prerequisite of the rule of lawbecause it ensures that justice is administered impartially, based solely on law and evidence, without external pressure or influence.

-Impartial and Fair Adjudication

-Protection of Rights and Freedoms

-Checks and Balances

-Public Confidence

-Predictability and Consistency

In essence, judicial independence provides the necessary framework for the abstract principles of the rule of law to be applied in a practical, meaningful, and consistent way in a free society.

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An example of judicial review related to illegality is a court rejecting a decision because a public body acted

beyond its legal powers.

It reflects the significance of rule of law by making sure that public bodies are acting within it’s own legal limits.

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A case addressed the right of abode for Chinese citizens born outside Hong
Kong but whose parents were permanent residents. The Hong Kong government had implemented restrictive policies that affected these individuals' rights.

The Court of Final Appel, ruled in favor of the applicants, affirming their right to reside in Hong Kong. This turning point decision was seen as a significant declaration of judicial independence and the rule of law.

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Find an example to show judges and judicial personnel must make judgements based on law and facts.

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Find an example to show judges and judicial personnel must make judgements based on law and facts.

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According to the doj.gov.hk

Court decisions are based on the relevant legal principals me the facts of the individual cases

An example is R v Dudley and Stephens ,4 sailors shipwrecked and after many days on a life boat two sailors killed the weakest and youngest members . after coming back to land they were prosecuted for murder . The judges found it hard because they had to eat to survive but after thinking about the law principal , they were found guilty of murder

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A sound system for the appointment and removal of judges reflects the significance of the rule of law by ensuring judicial independence, which guarantees impartial decision-making, protects citizens right, and maintains public confidence in the justice system.

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Definition:

It is written law that is passed by a legislative body, such as Congress or a state legislature, and enacted by the executive branch

Differences to common law:

Common law is created through created through court decisions.

Statutory law is the result of a formal legislative process that starts with a bill.

Steps:

A bill is proposed

Debated

Voted on by the legislature

If passed it is sent to the chief executive

If signed it becomes a statute

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(Quincy)Accountability and Judicial Review: The case enshrines the role of the courts in holding the executive branch accountable. It confirms that the legality, not just the wisdom, of administrative action is justiciable. This judicial oversight is a fundamental mechanism of the Rule of Law, ensuring there is an independent check on government power.

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a decision was deemed irrational due to lack of reasonable justification. This case underscores the rule of law by ensuring that government actions remain lawful and rational, protecting individual rights and promoting accountability.

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Example: https://www.clic.org.hk/en/topics/judicial_review/grounds_of_judicial_review/procedural_impropriety/principle_of_natural_justice

Subani: from the Community Legal Information Centre, the Principle of Natural Justice emphasizes that decision-makers must act fairly toward individuals whose rights and interests are affected by their decisions. This principle ensures that those impacted have the opportunity to present their case without bias. Fairness standards can change based on the specific context of each decision, reflecting evolving societal values. For instance, the case Regina v Secretary for State for the Home Department highlighted that there is a presumption that administrative powers will be exercised fairly.

Bidi: It also pointed out that fairness isn't a one-size-fits-all concept; it must consider the relevant laws and circumstances surrounding a decision. Additionally, individuals should have the chance to make representations before or after a decision is made, and they need to be informed of the key issues at stake in order to respond effectively. This principle is crucial for maintaining transparency, accountability, and justice in administrative processes.

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1. Principle of natural justice | Community Legal Information Centre (CLIC)

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Any decision-maker who can make decisions which affect rights, interests and legitimate expectations of the general public is under a duty to act fairly and obey natural justice. In other words, those affected should be given a chance to state their case, and be treated without bias, in relation to a decision which has already been made, or is to be made in the near future.

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Example: https://www.clic.org.hk/en/topics/judicial_review/grounds_of_judicial_review/procedural_impropriety/principle_of_natural_justice

Subani: from the Community Legal Information Centre, the Principle of Natural Justice emphasizes that decision-makers must act fairly toward individuals whose rights and interests are affected by their decisions. This principle ensures that those impacted have the opportunity to present their case without bias. Fairness standards can change based on the specific context of each decision, reflecting evolving societal values. For instance, the case Regina v Secretary for State for the Home Department highlighted that there is a presumption that administrative powers will be exercised fairly.

Bidi: It also pointed out that fairness isn't a one-size-fits-all concept; it must consider the relevant laws and circumstances surrounding a decision. Additionally, individuals should have the chance to make representations before or after a decision is made, and they need to be informed of the key issues at stake in order to respond effectively. This principle is crucial for maintaining transparency, accountability, and justice in administrative processes.

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1. Principle of natural justice | Community Legal Information Centre (CLIC)

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Any decision-maker who can make decisions which affect rights, interests and legitimate expectations of the general public is under a duty to act fairly and obey natural justice. In other words, those affected should be given a chance to state their case, and be treated without bias, in relation to a decision which has already been made, or is to be made in the near future.

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The Wednesbury irrationality test, as applied under Hong Kong’s common law system preserved by the Basic Law, is a crucial mechanism for upholding the rule of law. It gives concrete meaning to the constitutional guarantees of equality, access to justice, and limits on executive power, ensuring that government action is always subject to legal scrutiny and standards of reasonableness.

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1. Fairness in Decision-Making

Example: The principle asserts that any decision-maker must provide those affected with a chance to state their case. This requirement acts as a safeguard against arbitrary decision-making, which is essential for a fair legal system.

2. Protection of Rights

Example: The right to be informed of the gist of the case enables individuals to understand any actions taken against them. This transparency helps protect their rights, ensuring that they can make informed representations.

3. Dynamic Standards of Fairness

Example: The source mentions that standards of fairness may change over time, depending on the context of decisions. This adaptability ensures that the legal system remains responsive to societal values, thus reinforcing public trust in the rule of law.

4. Reinforcement of Legal Frameworks

Example: According to the House of Lords case Regina v Secretary for State for the Home Department, ex parte Doody, fairness demands that decision-makers consider the statutory context of their powers. This grounding in law ensures that decisions are legitimate and legally sound.

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In Secretary for Justice v. Yau Wai Ching (2018), Hong Kong's court found government actions to prohibit a public assembly unlawful. This judicial review emphasized accountability, legal certainty, and protection of rights, reflecting the significance of the rule of law in limiting arbitrary power and ensuring citizens' freedoms.

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In Secretary for Justice v. Yau Wai Ching (2018), Hong Kong's court found government actions to prohibit a public assembly unlawful. This judicial review emphasized accountability, legal certainty, and protection of rights, reflecting the significance of the rule of law in limiting arbitrary power and ensuring citizens' freedoms.

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Summary: Through these examples, the Principle of Natural Justice demonstrates how fairness, rights protection, adaptability, and legal grounding are integral to maintaining the rule of law in Hong Kong.

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Another example of illegality in judicial review is when a court overturns a government decision because proper procedures weren’t followed—even if the outcome might have been reasonable.

This reinforces the rule of law by ensuring fairness in how decisions are made, not just what decisions are made.

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The judicial independence in Hong Kong is a constitutional guarantee in the Basic Law.Judicial independence is there to ensure that courts can exercise their power free from interference.It is also the process of appointing judges, and the separation of powers.Through the judicial independence judges have the security which can further promotes their independence.

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An example showing that the judiciary in Hong Kong is not subject to interference from executive authorities or the legislature can be found in the case HKSAR v. Ng Kung Siu (1999).

The case involved the legality of certain actions taken by the police during a protest. The Court of Final Appeal ruled for Ng Kung Siu, stating that the judiciary must interpret the law independently, without any influence from political groups. This decision showed the importance of the rule of law and judicial independence in Hong Kong.

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The Basic Law guarantees the continued use of common law, protects the independence of the judiciary, and gives Hong Kong its own final court. This isn’t just tradition but a legal requirement under Hong Kong’s mini-constitution.

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Hong Kong's legal system is built on a common law foundation, the legacy has maintained post-1997. The Basic Law guarantees judicial independence, and the Court of Final Appeal holds the power of final adjudication . The judiciary is repeatedly affirmed as independent under the Basic Law, which is essential as the rule of law . This common law tradition provides a way of thinking about law, legality and justicethat is not easily erased

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A significant case in Hong Kong demonstrating judicial independence is HKSAR v. Ng Kung Siu & Another (1999). The Court of Final Appeal ruled that police cannot stop and search individuals without reasonable suspicion. This decision was crucial for protecting citizens' rights and preventing arbitrary actions by law enforcement. The court underlined that police must base their actions on solid legal grounds, emphasizing the importance of individual rights. Through this case, the judiciary demonstrated its role in holding the government accountable and ensuring fair law enforcement, ultimately safeguarding the freedoms of all citizens in Hong Kong.

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student C:

The basic law reflect "one country, 2 systems" from stating Hong Kong is an inalienable part of China, this also proves our unity and China's sovereignty.

Hong Kong also has a high degree of autonomy (stated from the basic law's article 2) which means there are 2 systems, as Hong Kong is granted the executive, legislative, and independent judicial powers, including the power of final adjudication.

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C: Find an example to show how does judicial independence guaranteeing the judges shall not be dismissed easily?

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C: Find an example to show how does judicial independence guaranteeing the judges shall not be dismissed easily?

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Judicial independence in Hong Kong is shielded by the Basic Law, where judges cannot be easily removed. Article 88 states that judges shall be appointed by the Chief Executive on the recommendation of an independent commission; they can only be dismissed for reasons of incapacity or criminal conviction, thus guaranteeing security of tenure. This independence enables the judges to make decisions independently of political or public pressures. This happened during the demonstrations against the Extradition Bill in 2019, when the Judiciary defended the rule of law despite a number of attacks and criticisms against it.

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Hong Kong authorities may prosecute homeowners who ignore removal orders for unauthorized structures after the High Court upheld demolition orders, following failed appeals by many homeowners over several years.

The enforcement of removal orders reflects the rule of law, ensuring accountability, judicial authority, and the protection of community standards.

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In Hong Kong, judges and judicial staff strictly uphold the principle of neutrality, which is fundamental to the judicial system and essential for protecting social justice.

For example, in the legal cases related to the social unrest in Hong Kong, the courts have rigorously adhered to legal protocols to guarantee that all cases are examined impartially and equitably, without any outside influence.

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In Ho Choi Wan v. Hong Kong Housing Authority (2005), the court held that the Housing Authority’s refusal to allow a public housing applicant to amend her application was unlawful because it rigidly applied internal guidelines without considering individual circumstances, contrary to the flexibility intended under the Housing Ordinance.

This judicial review underscored that public bodies must exercise discretion reasonably and within the purpose of the law, reinforcing that the rule of law requires both substantive and procedural fairness in administrative decisions.

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Judicial review is essential for upholding the rule of law in Hong Kong, as demonstrated in the case of HKSAR v. Chow Nok Hang (2018). In this case, the court found that the government unlawfully revoked Chow's license without allowing him a fair chance to respond. This lack of procedural propriety led the court to rule the decision invalid. This case shows the importance of accountability in government actions and protection of individual rights by ensuring fair treatment of all citizens.

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A prominent real-world example of a decision found to be irrational in the legal sense comes from a UK case concerning care home discharge policies during the COVID-19 pandemic.

In specific cases related to government guidance at the start of the COVID-19 pandemic, the court found that certain government decisions were irrational because they failed to consider highly relevant information.

The irrationality centered on the UK government's policy in March and April 2020 of discharging patients from hospitals into care homes without requiring negative COVID-19 tests, and without taking into account the risk of asymptomatic transmission.

—Failure to consider a relevant matter: The court found that the government and those drafting the guidance "simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission".