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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629

The applicant was born in China on May 16, 1951. He was taken to Macau by his parents at the age of three. He entered Hong Kong from Macau illegally in 1967. He came to the notice of the authorities in Hong Kong only in 1976 when he applied for an identity card, and he was removed to Macau under a removal order in March 1976. In April 1976 he re-entered Hong Kong illegally and he has remained there until the present time. He was apparently an industrious worker and by 1980 he had become part owner of a small garment factory along with the registered proprietor.

The change of policy announced on October 23, 1980, was followed by a series of television announcements explaining that all illegal immigrants from China would be liable to be repatriated. Although the announcement only applied to illegal immigrants from China, it naturally caused anxiety to illegal immigrants of Chinese origin who had entered Hong Kong from Macau, including the applicant. On October 28, 1980, a group of illegal immigrants who had entered from Macau submitted a petition to the Governor of Hong Kong outside Government House, where a senior immigration official read out to them a series of questions and answers which had been prepared in the office of the Secretary for Security, dealing with the position of such persons and the actions which they should take. One of the questions, with its answer, was: *635

"Q. Will we be given identity cards? A. Those illegal immigrants from Macau will be treated in accordance with procedures for illegal immigrants from anywhere other than China. They will be interviewed in due course. No guarantee can be given that you may not subsequently be removed. Each case will be treated on its merits."

The promise that each case would be treated on its merits is at the root of the applicant's argument before the Board.

The applicant was not present outside Government House and did not hear the announcement and the questions and answers, but he did see a television programme about the subject on the evening of October 28. Earlier that day he had gone to an office of the Immigration Department to register with the department and had been told to report to the Immigration Clearance Office on October 29. He did so and, after being interviewed by an immigration officer there, he was detained under powers contained in section 26 (a) of the principal Ordinance, pending inquiry for the purpose of the Ordinance. He was detained until October 31. On October 31, the Director of Immigration made a removal order against the applicant. The applicant appealed to the Immigration Tribunal under section 53A of the principal Ordinance, but the tribunal dismissed his appeal without hearing him, as it was entitled to do.....

The narrower proposition for which the applicant contended was that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has "a legitimate expectation" of being accorded such a hearing. The phrase "legitimate expectation" in this context originated in the judgment of Lord Denning M.R. in Schmidt v. Secretary of Stare for Home Affairs [1969] 2 Ch. 149 , 170. It is many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396 , 404, Barwick C.J. construed the word "legitimate" in that phrase as expressing the concept of "entitlement or recognition by law." So understood, the expression (as Barwick C.J. rightly observed) "adds little, if anything, to the concept of a right." With great respect to Barwick C.J., their Lordships consider that the word "legitimate" in that expression falls to be read as meaning "reasonable." Accordingly "legitimate expectations" in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis....So it was held in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it....

Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.

In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits. The only ground on which it was argued before the Board that the undertaking had not been implemented was that the applicant had not been given an opportunity to put his case for an exercise of discretion, which the director undoubtedly possesses, in his favour before a decision was reached. The basis of the applicant's complaint is that, when he was interviewed by an official of the Immigration Department who recommended to the director that a removal order against him *639 should be made, he was not able to explain the humanitarian grounds for the discretion to be exercised in his favour. In particular he had no opportunity of explaining that he was not an employee but a partner in a business which employed several workers. The evidence of the applicant, contained in an affidavit to the High Court, was that at the interview he was not allowed to say anything except to answer the questions put to him by the official who was interviewing him. Sir Denys Roberts C.J., giving the judgment of the full bench, concluded that the applicant:

"should have been asked whether there were any humanitarian reasons or other special factors which he would like to be taken into account before a decision was reached. If this had been done, he would not have been able to claim that he had no opportunity of making it clear that he was a proprietor of a business and not just a technician."

When the appeal was before the Court of Appeal McMullin V.-P. pointed out that "this is the narrow factual basis upon which the appeal stands." It was emphasised by Baber J. in two striking sentences as follows:

"It is a pity that he was not expressly asked at his interview on October 29, 1980, 'have you anything to say as to why you should be allowed to remain in Hong Kong?' and his answer recorded. This would have been an adequate opportunity to state his case and had this been done these proceedings would have been unnecessary."

Their Lordships consider that this is a very narrow case on its facts, but they are not disposed to differ from the view expressed by both the courts below, to the effect that the government's promise to the applicant has not been implemented.....