October 03

PETER GREGOIRE: PROPORTIONALITY AND WEDNESBURY: IS THE GREAT CONFLATION BEGINNING IN HONG KONG?

In line with other common law jurisdictions, Hong Kong has adopted “proportionality” as a key test for assessing the legality of measures imposed and decisions made by public authorities in judicial review cases. Proportionality now sits firmly alongside the traditional Wednesbury reasonableness test [1948] 1 KB 223 in this respect. The two tests, however, typically apply in different spheres, with the proportionality test being deployed largely in cases involving the restriction of rights under the Basic Law (Hong Kong’s mini-constitution) and the Bill of Rights (BoR) and Wednesbury reasonableness being applied in cases where such rights are not engaged.

This dichotomy has been the subject of discussion across other parts of the common law world, with certain commentators suggesting that proportionality should replace Wednesbury altogether. In generally maintaining a separation between the type of cases to which each test applies, Hong Kong has hitherto steered clear of this controversy. In the recent case of QT v Director of Immigration [2018] HKCFA 28, however, the Court of Final Appeal hinted that Hong Kong may be about to join the debate.

Proportionality vs Wednesbury reasonableness

For the benefit of readers not familiar with the common law debates surrounding these two grounds of review, this section sketches the main arguments.  In applying Wednesbury reasonableness to a measure decided by a public authority, the court asks itself whether the authority has “come to a conclusion so unreasonable that no reasonable authority could ever have come to it” [1948] 1 KB 223 at 234. In other words, it assumes there is a wide range of reasonable decisions available to the public authority and asks whether the actual decision falls within the scope of that range. In doing so, Wednesbury shows significant deference to public authority discretion. A court would only intervene in a decision in the most obvious of cases.

Proportionality, by contrast, applies a four-stage test to the measure which the public authority has decided, by asking: (i) whether the measure pursues a legitimate aim; (ii) if so, whether it is rationally connected with advancing that aim; (iii) whether the measure is not more than necessary to achieve that aim; and (iv) whether the balance struck between the rights of the individual and the interests of the community in applying the measure, is acceptable.

Compared to Wednesbury, therefore, proportionality subjects public authorities to more intense scrutiny. Hence, proportionality is deemed appropriate to apply where rights under the Basic Law or BoR (being rights which are fundamental to citizenship) are engaged. Society expects that any infringement of these rights must be able to withstand the intense review which proportionality provides.

So it is that the proportionality test has been applied in Hong Kong to statutory provisions which criminalise the desecration of the PRC flag and the Hong Kong Special Administrative Region flag, thereby engaging the right to freedom of speech and expression under the Basic Law (HKSAR v Ng Sau Sim and Another [1999] HKCFA 10). It has been applied to the statutory scheme for the regulation of public processions which restricts the right to peaceful assembly (Leung Kwok Hung & Others v HKSAR [2005] HKCFA 41). It has also been applied to building restrictions imposed by the Town Planning Board which infringe on the right to ownership of private property and the right to compensation in the event of lawful deprivation of property as set out in the Basic Law (Hysan Development Company Limited (and Ors) v Town Planning BoardFACV 21/2015). Indeed, it is the Hysan case which refined the proportionality test into the current four limbs stated above, which is now applicable in Hong Kong.

In each of the abovementioned cases, the decisions or measures complained of, clearly operated as restrictions on rights guaranteed under the Basic Law or BoR, thereby justifying the application of the more intense proportionality test. In QT v Director of Immigration, however, the position was not as clear cut.

QT v Director of Immigration

The facts of the QT case are as follows:

QT applied for a dependency visa from the Director of Immigration in Hong Kong. The basis of QT’s application was that her same-sex spouse with whom she had entered into a civil partnership in England under the UK’s Civil Partnership Act 2004, had been granted permission to live and work in Hong Kong under an employment visa. The Director of Immigration turned down QT’s application on the basis that its policy setting out the criteria for granting dependency visas, only applied to persons whose marital status was as defined under Hong Kong’s matrimonial law, i.e. monogamous marriage between members of the opposite sex. QT’s application thus fell outside the scope of the policy and was rejected. QT applied for judicial review. She lost at first instance, but won on appeal. The Director of Immigration then appealed to the Court of Final Appeal, Hong Kong’s highest court.

The basis of QT’s case was that although the Director of Immigration was given wide power to impose a policy setting conditions for a person’s stay in Hong Kong, that power had to be exercised fairly and rationally and in line with the rule of law, per Wednesbury reasonableness. A policy which applied differential treatment to persons in same sex marriages from persons in opposite-sex marriages, was neither fair nor rational and should be impugned on the basis that it was Wednesbury unreasonable. In other words, QT’s case was put firmly on the basis of the Wednesbury test, and not on the basis that it directly engaged any rights under the Basic Law or the BoR.

In spite of this, the Court of Final Appeal decided that the four-limb proportionality test laid down in Hysan Development should apply in deciding whether the differential treatment imposed by the Director of Immigration’s policy was justified or whether it may be impugned as Wednesbury unreasonable. Applying proportionality, the Court of Final Appeal found that the Director of Immigration’s policy satisfied the first limb of the test, in that it did pursue the legitimate aim of balancing the need of encouraging people with talent and skills to join the workforce in Hong Kong accompanied by their dependants, with the need to maintain strict immigration control. The policy, however, clearly failed at the second limb of the proportionality test, in that there was no rational connection between the policy and the legitimate aim it pursued. In simple terms, if a person had the requisite skill and talent but just happened to be gay, the policy effectively discouraged that person from joining the workforce in Hong Kong by preventing his/her dependants from coming in on dependency visas. The policy, thereby, was entirely counterproductive to its stated legitimate aim and hence disproportionate. The Director of Immigration’s appeal was dismissed.

The start of the great conflation? 

In applying the proportionality test to decide a case on Wednesbury unreasonableness grounds, the Court of Final Appeal may have unwittingly begun the great conflation of the two tests in Hong Kong judicial review cases. It starts with the slow bleed of proportionality principles across into the operation of Wednesbury, as happened in the QT case. It ends, potentially, with Wednesbury being eventually being swallowed up and confined to history. The result would be a future where all public authority decisions and measures, whether or not they engage BoR or Basic Law rights, are subjected to the more stringent proportionality analysis.

Despite the attack on Wednesbury, however – an attack which has been ongoing for some years in other common law jurisdiction – this old 1948 test, although battered bruised and somewhat conflated, is proving to be remarkably resilient. The debate, no doubt, will continue and Hong Kong might just have joined the fray.

 

Peter Gregoire is a practicing solicitor in Hong Kong and admitted as a solicitor in England & Wales. He was General Counsel for the Hong Kong operation of one of the largest insurance operations in the world for 11 years and has recently been appointed as the General Counsel for the Hong Kong Insurance Authority.