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Proportionality after Hysan: Fair Balance, Manifestly without Reasonable

Foundation and Wednesbury Unreasonableness

Article  in  Hong Kong law journal · August 2019

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 Proportionality after Hysan: Fair Balance, Manifestly without Reasonable
Foundation and Wednesbury Unreasonableness

Johannes Chan*

Abstract

While the recent decision of the Court of Final Appeal in Hysan Development Ltd v Town
Planning Board has provided a useful analytical framework for the proportionality analysis, it
is argued that the court’s suggestion that the fair balance test in the 4th step is normally
unlikely to change the outcome, if a restriction satisfies the first three steps, is
unwarranted. It is unsound in principle, as the 3rd and 4th stages serve different purposes,
and has a tendency to turn the fair balance test into one of secondary importance such that
the courts may not apply the test as rigorously as they should. A distinction should be drawn
between a legislative encroachment and an executive/discretionary encroachment. The
secondary importance of the 4th stage may be justified only when consideration of the fair
balance test would have already been exhausted in the first three stages, such as when the
issue pertains to the constitutionality of a legislative provision, whereas in the latter case of
an executive/discretionary encroachment, notably in the context of town planning or social
security scheme where there is a resource-distribution issue, the mere fact that a legislative
scheme may satisfy the first three steps does not warrant the suggestion that the 4th step
should not be an independent enquiry, as its purpose is to address the resource-distribution
issue. In the second part of the article, it is argued that, with the development of the
principle of margin of discretion in the proportionality analysis in Hysan, there is now little
difference between the proportionality test and the traditional Wednesbury rationality test in
common law judicial review, and that a single test of proportionality to replace Wednesbury
rationality test should be adopted.

THERE is nothing new that, in exercising its supervisory jurisdiction over decisions of public
authorities, the judiciary will exercise self-restraint so that in certain areas it will respect the
autonomy of the executive government and will not substitute its own views for that of the
executive. This is just a manifestation of the doctrine of separation of powers that there are
different constitutional roles for different branches of the Government. The same principle
applies to constitutional review of executive actions or legislative provisions. The difficulty
is where and how to draw the line. In common law judicial review, the line is drawn by the
principle of rationality - sometimes also known as Wednesbury unreasonableness, save that
the original Wednesbury principle has over the years been extended almost beyond
recognition;1 and in constitutional review, the line is drawn by invoking the principle of

 Professor, Faculty of Law, The University of Hong Kong. I am grateful to my colleagues

Cora Chan, Dr Eric Ip and Vivian Wong for their insightful discussions and comments on an
1
proportionality. In the recent decision of the Court of Final Appeal in Hysan Development
Co Ltd v Town Planning Board,2 Ribeiro PJ provided a majestic review of the case law on
proportionality and tried to bring different facets of proportionality into a more coherent
framework by marrying the standard of review (no more than necessary and manifestly
without reasonable foundation) with the intensity of review that is dependent on the
margin of appreciation. In addition to the traditional 3-step approach, his Lordship
introduced a 4th step of fair balance into the proportionality framework. The judgment has,
however, left a number of unanswered questions. While the Court has cautioned that the
four steps are not airtight compartments unaffected by one another, it also conveys an
impression that the 4th step is of secondary or supplementary importance. At the same
time, it is unclear how the principle of proportionality should be reconciled with the
traditional principle of rationality in judicial review, particularly in non-human rights cases.
Should a bifurcate system be adopted, or should there be a unified system of review? This
article will revisit the role of this 4th step, and argued that it has largely been misunderstood.
It further advocates that a single unified approach should be adopted for human rights and
non-human rights judicial review.

The Hysan Case

The issue in the Hysan case was whether certain planning restrictions imposed by the Town
Planning Board had disproportionately encroached on the property right of the applicant
contrary to Articles 6 and 105 of the Basic Law. While the planning restrictions applied to a
planning district, the applicant turned out to be the single largest property owner in the
district. Article 105 of the Basic Law provides that the HKSAR “shall, in accordance with law,
protect the right of individuals and legal persons to the acquisition, use, disposal and
inheritance of property and their right to compensation for lawful deprivation of their
property.” As there is no reference to proportionality in Article 105, it was held by the Court
of Appeal that the only constitutional requirement was that any restriction on property right

earlier draft of this essay, and to Alex Chan, a student in my Human Rights course, for his
help in the initial research. Any mistake remains, of course, my own.
1
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; for a
brief account on the extension of this principle, see Lord Hoffmann in R (Alconbury
Developments Ltd) v Secretary of State for the Environment, Transport and the Regions
[2003] 2 AC 295, at [51].
2
Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 (“Hysan”). While
this case was argued on both Articles 6 and 105 of the Basic Law, the argument under
Article 6 did not really add anything to that under Article 105. Thus, for convenience sake,
this article would only make reference to Article 105. In any event, the court’s decision on
proportionality was intended to be of general application and not confined to Articles 6 or
105: see [44].
2
had to comply with the requirement of legality only.3 The Court of Final Appeal rejected this
approach and simply adopted, as a generic proposition, that any restriction of a
fundamental right has to satisfy the requirement of proportionality. If this requirement is
not made explicit, it would be implied.4

The Court then lay down the well-known three-step approach to proportionality, namely:

“whether: (i) the legislative objective is sufficiently important to justify limiting a

fundamental right [‘legitimate objective’]; (ii) the measures designed to meet the
legislative objective are rationally connected to it [‘rational connection’]; and (iii) the
means used to impair the right or freedom are no more than is necessary to
accomplish the objective [‘no more than necessary’].” (shorthand in bracket added)

To this, the Court added a 4th step of inquiry:5

“whether a reasonable balance had been struck between the societal benefits of the
encroachment on the one hand, and the inroads made into the constitutionally
protected rights of the individual on the other, asking in particular whether pursuit
of the societal interest results in an unacceptably harsh burden on the individual.”
(‘fair balance test’)

It was said that this fair balance test was inherent in the protection of fundamental rights
and allowed the court “to take full account of the severity of the deleterious effects of a
measure on individuals or groups”.6 The court must “assess, whether taken overall, the
applicants can be said to have suffered an individual and excessive burden.”7 The court also
cautioned that the four stages were inter-related and inter-dependent, and should be
applied fluidly and flexibly.8 However, it then emphasized that in the majority of cases, the

3
[2015] 1 HKLRD 865 (CA). It was further argued that there was no restriction of property
right as property right carried with it intrinsic restrictions. This argument was rejected by
the Court of Final Appeal. There were also arguments based on traditional grounds of
judicial review which are not relevant to this article.
4
Supra, n 3, at [44]. In a previous case before the Court of Appeal, Lam VP held that the
notion of legality embodied the principle of proportionality: Kwok Cheuk Kin v Secretary for
Mainland and Constitutional Affairs [2015] 5 HKLRD 881 (CA). This was an unwarranted
attempt to introduce the concept of proportionality as it involved a confusion of the
concept of legality, which is related to the sources of the restriction, and the concept of
proportionality, which is related to the merits of the restriction. The Court of Final Appeal in
Hysan confirmed that the phrase “in accordance with law” mandated the principle of legal
certainty, requiring any restriction on fundamental rights to be regulated by laws which
were accessible and precisely defined: At [30], [32]. The principle of legality provided an
added protection and was not to replace the proportionality analysis.
5
At [135].
6
At [71], citing Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567.
7
At [69], citing Denimark Ltd v UK (2000) 30 ECHR CD 144 at 150.
8
At [60].
3
4th step would unlikely invalidate a restriction which has satisfied the requirements of the
first three steps of the inquiry.9 It is unclear whether this observation is intended to be an
empirical observation or a normative claim.10 If it is the former, it does not seem that there
is any empirical survey of previous cases to justify this statement. If it is the latter, there is
no legal basis for it. Sadly, this observation seems to have been perceived subsequently as a
normative principle and conveys an impression that this 4th step is of a residual or
supplementary nature.

The Fair Balance Test

A difficulty, both intellectually and practically, is the distinction between the 3rd (the no
more than necessary test) and the 4th stage (fair balance test). The court relied primarily on
three sets of authorities in support of a 4th stage of a fair balance test. The first case is Bank
Mellat v Her Majesty’s Treasury (No 2), 11 where it was said that Lord Reid has adopted a
four-step approach. His Lordship described the proportionality analysis in these terms:

“… depends on an exacting analysis of the factual case advanced in defence of the

measure, in order to determine (i) whether its objective is sufficiently important to
justify the limitation of a fundamental right; (ii) whether it is rationally connected to
the objective; (iii) whether a less intrusive measure could have been used; and (iv)
whether, having regard to these matters and to the severity of the consequences, a
fair balance has been struck between the rights of the individual and the interests of
the community.”

Lord Reid described the four steps as “different aspects of such an assessment [of
proportionality], and make value judgments more explicit.”12 Lord Sumption JSC accepted
that while the four steps were logically separate, in practice they inevitably overlapped and
in essence, the question was “whether a less intrusive measure could have been used
without unacceptably compromising the objective.”13 It is quite clear that the 3rd and the
4th steps are different aspects of the proportionality analysis, with the 3 rd step focusing on
the scope of the restriction (whether there could be a less intrusive measure), and the 4th
step focusing on the effect of the restriction on individual rights (balancing the laudable
objectives and the severity of the consequences to the individual concerned). Both steps are

9
At [73].
10
Or, more likely, it is intended to ensure that previous cases on proportionality would not
be open to query.
11
[2014] AC 700 at [20].
12
Ibid, at [74].
13
Ibid, at [20]. A word of caution is that Lord Sumption LSC’s formulation of the essence of
the inquiry, which is similar to the no more than necessary test in Hysan, is a much wider
inquiry than whether a less intrusive measure could be adopted.
4
equally important and crucial in the proportionality analysis, and there is no warrant to
suggest that if the first three steps are satisfied, it is unlikely that the 4 th step will invalidate
a restriction.

The Canadian Cases

The Court of Final Appeal then referred to the Canadian cases. In the leading case of R v
Oakes,14 which concerned the constitutionality of some reversed onus provisions, Dickson CJ
explained that there were a number of components in the proportionality test: (1) the
objective of the restriction had to be of sufficient importance to warrant overriding the
guaranteed right; (2) such means had to be rationally connected to the objective; (3) the
means had to impair the constitutional right as little as possible; and (4) the means chosen
had to be proportionate, balancing the interests of society and individuals or groups. On the
last component, Dickson CJ stated:15

“Some limits on rights and freedom protected by the Charter will be more serious
than others in terms of the nature of the right or freedom violated, the extent of the
violation, and the degree to which the measures which impose the limit trench upon
the integral principles of a free and democratic society. Even if an objective is of
sufficient importance, and the first two [three] elements of the proportionality test
are satisfied, it is still possible that, because of the severity of the deleterious effects
of a measure on individuals or groups, the measure will not be justified by the
purposes it is intended to serve. The more severe the deleterious effects of a
measure, the more important the objective must be if the measure is to be
reasonably and demonstrably justified in a free and democratic society.”

Thus, balancing the interests of society and individuals or groups lies at the heart of the
proportionality analysis. As Lord Bingham pointed out, “this is indeed an aspect which
should never be overlooked or discounted.”16 The fair balance is not intended to be a
residual element of proportionality; to the contrary, it is an “overriding requirement” as any
judgment on proportionality “must always involve the striking of a fair balance between the
rights of the individual and the interests of the community which is inherent in the whole of
the Convention.”17 The ends has to justify the means. It requires the court to undertake a
careful assessment of the severity and consequences of a restriction.

14
[1986] 1 SCR 103.
15
Ibid, at 138-139. I have separated the original second step in Dickson CJ’s formula to two
different steps.
16
Huang v Secretary of State for the Home Department [2007] 2 AC 167, at [79], referring to
the Oakes case.
17
Ibid, at [20].
5
Indeed, the minimal impairment test and the fair balance test involve two different inquiries.
This is best explained by Bastarache J in Thomson Newspapers Co. v. Canada (Attorney
General):18

“The third stage of the proportionality analysis performs a fundamentally distinct

role. ... The focus of the first and second steps of the proportionality analysis is not the
relationship between the measures and the Charter right in question, but rather the
relationship between the ends of the legislation and the means employed. Although
the minimal impairment stage of the proportionality test necessarily takes into
account the extent to which a Charter value is infringed, the ultimate standard is
whether the Charter right is impaired as little as possible given the validity of the
legislative purpose. The third stage of the proportionality analysis provides an
opportunity to assess, in light of the practical and contextual details which are
elucidated in the first and second stages, whether the benefits which accrue from the
limitation are proportional to its deleterious effects as measured by the values
underlying the Charter.” (Emphasis in original)

Despite the distinct functions of the two different stages of the proportionality analysis, it has been
queried that if the legislation pursues a sufficiently important objective, that it is rationally connected
to the achievement of the objective, and has caused only minimal impairment to the fundamental
right, what does the final stage of “a fair balance of the negative effects of the infringement of rights
against the positive benefits associated with the legislative goal” add to the analysis?19 The real
balance must have been done at the stage of minimal impairment, and to a lesser extent, the stage of
rationality. Her Lady Chief Justice answered it in this way, which answer was endorsed by Ribeiro PJ:20
“The answer lies in the fact that the first three stages of Oakes are anchored in an assessment
of the law's purpose. Only the 4th branch takes full account of the "severity of the deleterious
effects of a measure on individuals or groups". As President Barak explains:

Whereas the rational connection test and the least harmful measure test are essentially
determined against the background of the proper objective, and are derived from the
need to realize it, the test of proportionality (stricto sensu) examines whether the
realization of this proper objective is commensurate with the deleterious effect upon

18
[1998] 1 S.C.R. 877, at [125].
19
See Peter Hogg, Constitutional Law of Canada (5th ed, supp), section 38.12; Bank Mellat v
Her Majesty’s Treasury (No 2) [2014] AC 700, at [20]. The quote came from McLachlin CJ in
RJR- MacDonald v AG of Canada [1995] 3 SCR 198, at [175]. Riberio PJ relied on this case to
support the proposition that “it is only necessary to consider this 4th step if the first three
requirements of legitimate aim, rational connection and minimal impairment are satisfied.”
MacDonald did not support this proposition; as McLachlin CJ found it unnecessary to
consider the 4th stage: at [175]. The issue was considered by Her Ladyship in the
subsequent case of Alberta v Hutterian Brethren of Wilson Society, supra, n 6, at [76].
20
Alberta v Hutterian Brethren of Wilson Society, ibid, quoted by Ribeiro PJ in Hysan, at [71].
6
 the human right. ... It requires placing colliding values and interests side by side and
balancing them according to their weight. [p. 374]

In my view, the distinction drawn by Barak is a salutary one, though it has not always
been strictly followed by Canadian courts. Because the minimal impairment and
proportionality of effects analyses involve different kinds of balancing, analytical
clarity and transparency are well served by distinguishing between them. Where no
alternative means are reasonably capable of satisfying the government's objective,
the real issue is whether the impact of the rights infringement is disproportionate to
the likely benefits of the impugned law.”

Two observations could be made. First, as echoed by Lady McLachlin CJ, minimal
impairment and fair balance involve different kinds of balancing. They serve different
purposes and are of equal importance in the proportionality analysis. The Canadian
authorities do not support an approach to treat the fair balance test as a residual step that
is unlikely to change the result of the first three tests.21

Secondly, until Hysan, the Hong Kong courts have adopted a more broad brush approach to
proportionality, under which the scope of a restriction as well as its impact on the parties
were assessed under a general proportionality test.22 Thus, instead of introducing a 4th
stage, it is more accurate to say that Hysan has re-affirmed the importance of an inquiry on
fair balance in the proportionality analysis. Following the English and Canadian authorities,
the 3rd stage of a “no more than necessary test” becomes the equivalent of the test that “a
less intrusive measure could not have been practical”. Its focus is primarily on the scope of
the restriction which should not go beyond what is required for the realization of the
legislative objective, whereas the 4th stage of fair balance is about the effect or the impact of
the restriction on the individual concerned (sometimes referred to as proportionality stricto
sensu). In this sense, the Hysan case refines the proportionality test by drawing a distinction
between the no more than necessary test, which is about the scope of the restriction, and
the fair balance test, which is about the effect and impact of the restriction. The 3rd and the
4th stages serve different purposes. It is understandable that, by introducing the fair
balance test, the court did not wish to disturb previous decisions. So long as the effect of
the restriction has been considered; it is of semantic significance whether it is considered at
the 3rd or the 4th stage. However, by suggesting that the fair balance test is “unlikely to
invalidate a restriction which has satisfied the requirements of the first three stages of the
inquiry”, the court has gone too far and the risk is that the effect of a restriction, which goes
to the heart of the proportionality analysis, would now be given residual importance only

21
See Ribeiro PJ in Hysan, supra, n 2, at [73], [78].
22
See, for example, Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570; HKSAR v Lam
Wai Kwong (2006) 9 HKCFAR 574; Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR
335; Kwok Hay Kwong v Medical Council [2008] 3 HKLRD 524.
7
and would not be considered with the same rigour that is required of any constitutional
analysis.

The ECHR Property Cases

Indeed, the 4th stage may be of particularly importance where the legislative scheme
confers a discretionary power or when the legislative scheme embodies a distribution factor
so that the burden of the scheme could be distributed differently among different
individuals. This can be shown in the third set of cases relied upon by Ribeiro PJ. These
cases concerned the right to property and peaceful enjoyment of property under Article 1 of
the Optional Protocol No 1 of the European Convention on Human Rights. This article
covers three different but inter-related aspects: a general right to peaceful enjoyment of
property; a right against deprivation of property which deprivation is only permitted under
certain conditions; and the permission to control the use of property in accordance with the
general interest. There is no express reference to the proportionality test, and at some stage
there were queries whether different tests should apply to deprivation of property and an
interference with peaceful enjoyment of property short of deprivation. It was in such
context that the European Court of Human Rights held that different manners of
interference with property right were subject to the same and single test of fair balance,
although the manner of application of the fair balance test may be different under different
circumstances. The fair balance test, which was laid down in Sporrong and Lönnroth v
Sweden, was said to be pervasive throughout the Convention between the enjoyment of
individual rights and protection of the public interest.23 In other words, the fair balance test
is the equivalent of the proportionality (stricto sensu) test; it is not an additional aspect of
the proportionality test. A second peculiarity of the case law under Article 1 is that most of
these cases concerned deprivation or restriction on the use of land. The domestic law will
usually provide the legal basis for such interference, which is also usually justified by
reasons of public interest. Because of the nature of the subject matter, the relevant
legislative scheme normally covered a wide area and was not confined to the applicant’s
property. In other words, the impact of the scheme on the people affected may not be
uniform. Hence, the fair balance test is to highlight the distribution/discretionary factor,
namely whether the applicant is to bear “an individual and excessive burden” in the context
of town planning and development. Thus, in Sporrong and Lönnroth v Sweden, the Court
found that the prolonged expropriation permit and prohibition order prohibiting any
construction posed an unjustified burden on the applicant even when the permits and
orders were made in the public interest. Similarly, in James v United Kingdom,24 which
concerned the British system of leasehold enfranchisement under the Leasehold Reform Act
1967, the Court acknowledged that it would be difficult to find a case that the policy

23
(1982) 5 EHRR 35.
24
(1986) 8 EHRR 123, at [46].
8
preference of a State would not constitute a legitimate objective. However, this was
insufficient to satisfy the requirement of Article 1 and the Court brought into play the
proportionality requirement under the rubric of fair balance.25 Since the burden may be
distributed unequally among different property owners within the same district that was
affected by the same planning restrictions, the fair balance test would be important to
enable the court to address the distribution issue.

Legislative Encroachment versus Executive/Discretionary Encroachment

In this regard, a distinction could be drawn between a legislative encroachment of

fundamental rights and a restriction imposed by executive discretion. In the former case,
the first three stages of legitimate objective, rationality and the no more than necessary test
will largely take care of the fair balance principle. The impugned legislative provision
already envisages how individual rights would be affected and is a result of such balance,
albeit by the legislature. When the legislative provision, which is intended to apply to all
individuals uniformly without any discretionary element, is challenged in court, it would be
rare to be able to do the 3rd stage without considering the question of fair balance at the 4th
stage as well. Thus, for example, in considering whether a reversed onus provision goes no
further than necessary to achieve the legitimate objective, say, combatting drug trafficking
and overcoming the practical difficulty of proof of actual trafficking, the court must have
necessarily considered the impact on individual rights before it could determine whether
the legislative choice of a reverse onus provision goes no further than reasonable to achieve
the legislative aim.26 The reverse onus provision is to apply uniformly to all individuals and
its impact on different individuals would likely be the same, namely that every defendant
would have to shoulder the reverse onus of proof under the same criminal charge. There
will be little left for consideration of the impact of the reverse onus provisions on an
individual at the 4th stage. Another example would be a challenge to the statutory
requirement to obtain leave to appeal.27 The way and the extent the individual rights are
affected is a result of the legislative scheme and the adverse impact of the restriction is
uniform among appellants, and not a result of the exercise of any discretionary power or the

25
Ibid, at [50].
26
HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614.
27
Incorporated Owners of Po Hang Building v Sam Woo Marine Words Ltd (2017) 20 HKCFAR
240, at [54], where the Court found no individual constitutional right was infringed. See also
HKSAR v Choi Wai Lun (2018) HKCFAR 167, at [68]-[69] where the court has to consider if it
would cause an unduly harsh burden on the defendant when a reverse burden of proof was
imposed on a defendant to prove on balance of probabilities that he honestly and
reasonably believed that the girl in question was aged 16 or above in a criminal charge of
indecent assault of an under-age girl under s 122 of the Crimes Ordinance (Cap 200). In such
case the fair balance test has already been built into the no more than necessary test.
9
manner of implementation of the legislative scheme as in a town planning or an
immigration scheme.

Likewise, In considering whether the restriction of spousal benefits and the right to elect
joint assessment for tax purpose constituted a minimal restriction of the right to equality,
the court would have to consider whether the scope of the restriction on the right of
homosexual applicant’s right to equality was no more than necessary for the protection of
the institution of marriage at the 3rd stage, and whether the effect of the restriction on the
applicant represents a fair balance so that the pursuit of societal benefits of protecting the
status of marriage has not resulted in an unacceptably harsh burden on homosexual
applicant.28 In considering whether a restriction on the display of any sign or banner at the
public gallery of the Legislative Council was a violation of the right to freedom of expression,
the 3rd stage (whether the restriction was no more than necessary to maintain a secured
and dignified environment to allow the Legislative Council to carry out its constitutional
functions without disruption or disturbance) and the 4th stage (whether a fair balance has
been struck by restricting the applicants from displaying banners etc at the public gallery
during the Legislative Council session) were so intertwined that they could hardly be
separated.29 When the challenge is directed at the constitutionality of a legislative provision,
individual circumstances in the particular context of the case would have less significance
save to illustrate the unfairness in the legislative scheme. The encroachment of
fundamental right is achieved entirely by legislative means, leaving little scope for any
exercise of discretion. In such circumstances, the 3rd and the 4th stages of enquiry are just
different ways of addressing the same questions and are so entangled with one another that
a proper consideration of the 3rd stage would necessarily and inherently embody the 4th
stage. In such context, the Hysan approach is right that the 4th stage is unlikely to produce
any different result.

A rider should, however, be added. The above analysis rests on an assumption that
consideration of the first three stages would have exhausted any consideration at the 4 th
stage. It may not work if the courts do not adopt a rigorous scrutiny in the first three stages.

28
Leung Chun Kwong v Secretary for the Civil Service [2018] HKCA 318. Interestingly, in
applying the 4th stage, Poon JA’s approach is almost nothing more than expressing a value
judgment of attaching immense importance to the status of marriage: at [129]. See also
[100] where the learned judge expressed the tension between the competing interests at
the 3rd and 4th stages. The judgment on proportionality rests on the finding of certain core
rights and obligations that are unique to marriage, and once this is eroded, the institution of
marriage would be eroded. The Court of Final Appeal has expressed doubt on this core
rights and obligations approach in QT v Director of Immigration [2018] HKCFA 28. In that
case the Court refused a late amendment to include protection of the status of marriage as
a justification for the differential treatment.
29
HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, at [116]-[117]. See also Chang
Wan Shan v Esther Chan Pui Kwan [2017] 5 HKLRD 57, at [124]-[125], where the Court of
Appeal applied the 3rd and the 4th stage of the proportionality analysis as one single test.
10
This may happen if the courts too readily accept that a purpose is sufficiently important to
justify the restriction, as what the legitimate purpose is would affect the outcome of the 2nd
and the 3rd stages.30 Likewise, the Court of Final Appeal has rejected the strict necessity
test.31 The no more than necessary test does not mean that the restriction must be the very
least intrusive method of securing the objective that might be imagined or devised. Indeed,
it has even been said that a judge would be unimaginative if he could not come up with
something a little less drastic or little less restrictive in almost any situation. 32 If the
restriction is strict necessity, there would be little room for any further fair balance as there
is no other option. However, if the test is only reasonable necessity, and when other less
restrictive measures are still available (albeit regarded as not practical or the choice among
them falls within the margin of appreciation of the State), there would be cases where the
encroachment of fundamental rights has gone too far despite the reasonable necessity of
the restriction. In such cases, there is no reason to forgo a rigorous assessment at a fair
balance stage.

On the other hand, when the interference takes the form of executive discretion or may
involve a distribution issue under an executive scheme such as that relating to town
planning or social economic policies, it does not follow from a consideration that the
legislative or executive scheme goes no more than necessary to achieve its legitimate aim
that the exercise of discretion under such scheme will necessary strike a fair balance, as the
manner of how the legislative or the executive scheme is implemented varies from case to
case. In short, the 4th stage of fair balance will become a distinct stage of scrutiny and will
not necessarily be subsumed under the 3rd stage.

The importance of the 4th stage can be seen in Chee Fee Ming v Director of Land and
Environment.33 In that case, the Applicants, who were Falun Gong practitioners, complained
that the Director had wrongfully removed their banners and posters on Government land
pursuant to s 104A of the Public Health and Municipal Services Ordinance. The Court of
Appeal held that the prior approval requirement for display of posters and banners on

30
Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353.
In that case, the court readily accepted that resignation from the Legislature in order to
trigger a by-election so as to enable the resigned legislator to secure a mandate on a
controversial issue at the by-election was an abuse of the election process and therefore,
protecting the integrity of the legislative process was a legitimate purpose. It followed that
the measures to restrict participation of the resigned legislator in the by-election would
readily satisfy the 2nd and the 3rd stages. The means to achieve an orderly election, the
importance of and the extent of impairment of the right to election could be left out of any
critical assessed had there not been a 4th stage of a fair balance. See further below.
31
Hysan, supra, n 2, at [83], [88]; Official Receiver v Zhi Charles (2015) 18 HKCFAR 467.
32
Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, per Ma CJ, citing Blackmun J’s
comment in Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173,
188-189.
33
[2018] HKCFI 2031.
11
Government land in s 104A was a proportionate restriction on freedom of expression,34 but
it went on to hold that whether the power in s 104A satisfied the requirement of prescribed
by law was arguable. It also allowed an appeal that the manner of exercising the discretion
to approve the display of posters and banners could give rise to an argument on
proportionality, depending on the criteria for the exercise of the discretion. As there was
insufficient evidence before the Court of Appeal, the case was remitted for re-hearing with
leave to file further evidence. Upon re-hearing, G Lam J held that s 104A failed the legality
test. On proportionality, the Respondent denied that the disapproval was related to the
fact that the applicants were Falun Gong practitioners, but it provided no evidence on how
the discretion was to be exercised and there was no disclaimer of content-screening. Lam J
rightly commented that there would be “a great difference between screening bills or
posters for obscene content and screening them for anti-government messages however
defamatory they might be.”35 However, given his decision on legality and the general and
hypothetical nature of the evidence on how an application would be processed (as no
application has ever been made), Lam J decided not to deal with the proportionality
argument. This decision is understandable but probably unfortunate. The burden of proof
of restricting freedom of speech lies on the Government. The fact remained that over 130
banners and 480 placards were removed from various demonstration sites, with criminal
consequences on the applicants, who gave evidence that “they have become ‘very nervous’
in carrying out their demonstrations and have reduced the display materials used, impairing
their ability to communicate with the public.”36 If the Government failed to provide a
cogent and persuasive explanation, it has to be a disproportionate restriction on a
fundamental right.

Similarly, in Wong Ho Tong v Director of Lands,37 it was conceded that the squatter control
policy served a legitimate aim and was rationally connected to that aim. The Applicant
relied primarily on the 4th stage of proportionality test. The court eventually rejected that
argument and held that a fair balance has been achieved as the applicant had no legal title
or interest over the land; she had enjoyed the benefit of toleration under the squatter
control policy for a long time and she was fully aware of her precarious position and would
not be rendered homeless upon eviction. These were relevant considerations at the 4th
stage and a concession on the constitutionality of the scope of the legislative discretionary
scheme did not necessarily lead to a conclusion that the exercise of discretion pursuant to
that scheme has achieved a fair balance and hence constitutional. The fair balance test is a

34
At first instance, Poon J held that the real challenge was directed at s 104C, which
conferred a power on the Director to remove banners and posters that were displayed in
contravention of s 104A, and that s 104C was free-standing and constitutional. On appeal,
the Court of Appeal apparently rejected this approach and re-directed the focus to s 104A.
35
Ibid, n 33, at [104].
36
Ibid, n 33, at [75].
37
[2018] HKCA 330, at [57]-[65].
12
distinct enquiry that requires and deserves an equally anxious scrutiny from the court and
should not be regarded as of residual importance only.

Application of the Fair Balance test after Hysan

The Hysan test has been widely followed and been applied to different types of cases,
including immigration and equality cases.38 In a number of cases, the courts found it
unnecessary to consider the 4th stage because the impugned measure could not satisfy the
earlier tests of legality39 or rational connection.40 For those cases where the 4th stage has
been considered, the remark that the fair balance test would only be successful in very
exceptional circumstances has sometimes been taken as a normative principle and resulted
in a rather casual analysis of an important aspect of the proportionality enquiry.41 Indeed,
in none of the post-Hysan cases has the 4th stage ever made any difference to the outcome.

The 4th stage has also been applied in a rather extraordinary manner. In Lubiana v Director
of Immigration,42 the issue was whether the mandatory live-in requirement for foreign
domestic helpers was, inter alia, discriminatory. The Court rightly identified that the three
facets of the justification test, namely, (i) whether the importation of live-in domestic
helpers from abroad pursued the legitimate aim of meeting the demand of Hong Kong
families for live-in domestic service which could not be filled by local domestic helpers; (ii)
whether the live-in requirement was rationally connected to such legitimate aim, and (iii)
whether the measure adopted was no more than was necessary to accomplish the

38
Eg, Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services [2018] 2 HKLRD
933 (CA); Lubiano Almorin v Director of Immigration [2018] 1 HKLRD 1141; Leung Chun
Kwong v Secretary for Civil Service [2018] HKCA 318; QT v Director of Immigration, supra, n
28; HKSAR v Cheung Kwai Choi [2018] HKCFI 2243.
39
Eg, Chee Fee Ming v Director of Food and Environment [2018] HKCFI 2031.
40
Eg, QT v Director of Immigration, supra, n 28; [2017] 5 HKLRD 166 (CA); American
International Group Inc v Huaxia Life Insurance Co Ltd (2017) 20 HKCFAR 503; Incorporated
Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240; Leung
Chun Kwong v Secretary for Civil Service [2017] 2 HKLRD 1132 (CA); Leung Kwok Hung (Long
Hair) v Commissioner of Correctional Services, supra, n 38.
41
In Official Receiver v Zhi Charles, supra, n 31, regarding the 4th stage, the court referred to
the exceptional nature of the 4th stage and concluded that the case was “plainly within the
majority of cases”. In Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services,
supra, n 38, at [115], the court found that the requirement to cut short the hair of male
inmates satisfied the first three steps in the proportionality test, and held that there was no
basis to consider the 4th stage. In Tung Chun Co Ltd v Town Planning Board [2018] HKCFI
1447, the court merely referred to the fact that the applicant could still pursue
developments up to the maximum of plot ratio despite the imposition of height restrictions.
While the conclusion in some of these cases may be correct, a more vigorous and detailed
analysis should be called for when fundamental rights are at stake.
42
[2018] 1 HKLRD 1141.
13
legitimate aim. Leaving aside the questionable legitimate aim that foreign domestic helpers
were imported to satisfy the demand of live-in domestic service (as opposed to the demand
of domestic service), the court’s approach to the 4th stage was most curious. Chow J held:

“In respect of the fourth element, it is important to emphasize that ultimately, it is a

matter of choice for an FDH to decide whether to accept the live-in requirement in
order to be permitted to come to work in Hong Kong. If prior to coming to Hong
Kong, he/she considers the Live-in Requirement to amount to an unacceptable
invasion of his/her personal or private rights, he/she can of course choose to remain
in his/her home country, or work in some other countries which do not have such
requirement. On the other hand, if, after coming to work in Hong Kong, he/she finds
the Live-in Requirement to be unacceptable, he/she can terminate the employment
contract by giving one month’s notice in writing or paying one month’s wages in lieu
of notice. I do not consider that the pursuit of societal interest in the importation of
workers to provide live-in domestic service in Hong Kong can be said to result in an
unacceptably harsh burden on FDHs.”43

With respect, this reasoning is amazingly out of touch with reality. It is in theory possible for
FDHs to terminate an employment contract by giving one month’s notice, but such liberty is
largely non-existent given that upon termination, they have to leave Hong Kong within 14
days, let alone the heavy debt most FDHs had incurred in order to come to work in Hong
Kong in the first place. Not only has the reasoning failed to appreciate that the FDHs are a
vulnerable group of employees, but that it has also failed to consider how the mandatory
live-in requirement impacted on their lives. The way the 4th stage was applied was almost
tantamount to saying that if they chose to be exploited, it was not open to them to turn
around to complain against the exploitation! This could hardly be what fair balance is about.

In Chan Ho Tin v Lo Ying Ki,44 the court found that the substantive declaration requirement
to uphold the Basic Law and to swear to the allegiance of the HKSAR regarding candidacy of
the Legislative Council election satisfied the first three stages of proportionality. On fair
balance, the court held that “the restriction only affects persons who do not genuinely and
truly intend to uphold the Basic Law or bear true allegiance to the HKSAR of the PRC, which
is a constitutional requirement imposed under BL104.”45 With respect, this is a tautological
conclusion as it effectively means that a fair balance is achieved as the restriction affects
only those who are affected by it. It might be fair in some circumstances to take into
account that the number of people affected by the restriction is small,46 but this was by no

43
Ibid, at [108].
44
[2018] 2 HKLRD 7.
45
Ibid, at [194].
46
In Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs, supra, n 30, the
Court of Final Appeal took into account in the fair balance analysis that the encroachment
on the constitutional right to stand for election applies only to by-election and the bar was
14
means clear in this case, as the requirement affects every single candidate who intends to
run for election to the Legislative and the District Council.

The manner the 4th stage was applied was also unsatisfactory in Hysan itself. The building
restrictions imposed on the site may satisfy the first three stages, but as the developer was
the single largest landowner of the site, the court would have to address the question
whether the burden of the planning restrictions has disproportionately fallen onto one
single individual. The Court’s answer was that planning decisions were made with the entire
district in view, and not just the applicants’ sites, but this is exactly what the fair balance
test is for: to consider the impact of the restriction on individuals. Instead, the Court
avoided the issue and held that,unless there were material flaws in the decision making
process, and taking into consideration that the intensity of review should be one of
manifestly without reasonable foundation, the restrictions should not be struck down as
constitutionally invalid. The irony was that in that case, it was accepted that there were
material flaws in the decision making process. The Court held that in such cases, common
law judicial review remedies were available,47 and stopped short of expressing a view on the
constitutionality of the planning restrictions, save for an abstract, albeit unsatisfactory,
double negative proposition that if the planning restrictions were arrived at lawfully and in
conformity with the principles of judicial review, they would not be susceptible to
constitutional review unless the measures were exceptionally unreasonable 48 – a
proposition that gives rise to a different issue of the relationship between proportionality in
constitutional analysis and rationality in common law judicial review, which will be
considered below.

A Bifurcate System: Human Rights and Non-Human Rights Judicial Review

Another major significance of the Hysan case is the discussion on the standard of review and
its relationship to the intensity of review. Two main standards have been advocated,
namely, the ‘no more than necessary’ standard and the ‘manifestly without reasonable
foundation’ standard. Instead of being two distinct standards, the Court of Final Appeal
emphasized that their difference is one of degree and they indicate positions on a

solely against the resigning members who resigned with full knowledge of the consequences
as well as the limited duration of the bar: at [61]. The scope of the restriction was narrower
than the restriction on potential candidates to run for legislative election in the Chan Ho Tin
case, supra, n 44. However, it must be cautioned that the number of people affected as an
indication of the impact of the restriction has to be considered in light of the extent of
impairment of the fundamental rights in question; otherwise the rights of minorities could
easily be undermined.
47
Hysan, supra, n 2, at [128]. See also [55] where the Court found the restrictions satisfied
the first two stages of legitimate purposes and rational connection.
48
Hysan, supra, n 2, at [129], [142].
15
continuous spectrum rather than being wholly independent concepts. Thus, it is more
appropriate to conceive them as varying degrees of intensity of judicial scrutiny that operate
on a sliding scale of a continuum rather that distinct standards. The appropriate intensity
of judicial scrutiny to be adopted in a particular case depends on the margin of appreciation.
Despite the origin of the doctrine of margin of appreciation, which is justified on the basis of
unfamiliarity of a supra-national court with the domestic situation of a member state, the
Court of Final Appeal held that a similar doctrine, which is better called “margin of
discretion”, applied at the domestic level that recognized the different constitutional roles
of the judiciary and the other branches of Government.49 Thus, a wide margin of
appreciation would be accorded when the relevant impugning measures involve an
implementation of the Government’s socio-economic policy choices regarding the allocation
of limited public resources, or a decision when special expertise or knowledge is called for,
or a measure that goes to the constitutional role of a different branch of government. The
scope of the margin of appreciation is context sensitive and depends on a number of factors,
including:50

(1) The significance of and the degree of interference with the right in question. The
more important the impugned right is, or the more extensive the interference is, the
lesser the degree of margin of appreciation will be afforded. In this regard, some
rights are considered to be more important than others. A right to vend
pornography will be less valued, whereas discrimination on suspect grounds will
receive a close scrutiny.
(2) The identity and the constitutional role of the decision-maker as well as the nature,
the content and features of the impugned measure. If the decision-maker is better
placed than the court in terms of his constitutional role or competence involving
possession of special expertise or knowledge, to assess what is needed in the public
interest, a wide margin of appreciation will be accorded.

This analysis provides a helpful analysis on the relationship between the margin of
appreciation and the standard of review as well as the factors to be considered, although it
may be said that the standards to be applied, namely whether it is no more than necessary
or manifestly without reasonable foundation, are of limited relevance. What matters most
is the determination of the margin of appreciation, and some of the factors could be highly
subjective. For example, the court has attached great weight against any differential
treatment on the basis of sexual preference, whereas less weight has been attached to the
right to vote and to stand for election.51 The hierarchy of rights would also bring back the

49
Hysan, supra, n 2, at [97]-[100].
50
Hysan, supra, n 2, at [107], re-affirmed in HKSAR v Fong Kwok Shan Christine, supra, n 29,
and Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs, supra, n 30.
51
See, for example, Chief Executive of the HKSAR v President of Legislative Council [2017]
HKEC 1459, where the right to stand for election was given lip service; Kwok Cheuk Kin v
16
classic (but outdated) preference for civil and political rights to social and economic rights,
which have been regarded as not a fundamental right.52 While the test now requires the
court to be more explicit in its value judgment, it is also more difficult to challenge such
value judgment. Another risk is that the enquiry is now shifted from a scrutiny of the impact
of an impugned measure on individuals to a consideration of the intensity of scrutiny, and
the balancing process in some subsequent cases involved barely anything more than a
recital of the wide margin of appreciation.53 Thus, the Court was at pain to point out that
the manifestly without reasonable foundation standard does not mean that the court will
adopt a cursory or perfunctory scrutiny. Instead, it will consider to some depth the factual
foundation and the reasoning.54

A few observations could be made. The first is that when a wide margin of appreciation is
afforded, it is easier to challenge the impugned measure on the ground of rational
connection than proportionality. Rational connection involves an assessment of factual
foundation and causal relationship between the legitimate objective and the impugned
measure. Arguably there is less room for value judgment and the court would be more
ready and comfortable to intervene if a rational relationship cannot be objectively
established, and leave open the more value-laden issue of proportionality.55 For example, it
would be difficult to understand, in terms of margin of appreciation, why the court was
prepared to intervene in the entitlement to social welfare in Kong Yunming but not
prepared to intervene in the higher charges for obstetric services against alien women in
Fok Chun wa.56 Kong Yunming is better explained on the ground of a lack of rational
connection when the justification for the restriction of entitlement to comprehensive social
service assistance was inconsistent with the Government’s One Way Permit Policies of
encouraging family reunion and its population policy of encouraging settlement of young
people. Similarly, in QT v Director of Immigration, the court preferred to decide the case on
the ground that the policy of excluding civil union partners from joining their spouses in
Hong Kong bore no rational relationship to encouraging talents to come to Hong Kong than
on the substantive ground of whether exclusion of civil union was a proportionate
restriction of the right to equality.57

Secretary for Constitutional and Mainland Affairs, supra, n 30. See also Cora Chan, “Judicial
Deference at Work: Some Reflections on Chan Kin Sum and Kong Yun Ming” (2101) 40 HKLJ
1 where the author argued that the court had given inappropriate deference on democratic
legitimacy ground.
52
See Kong Yunming v Director of Social Welfare (2013) 16 HKLRD 950, at [42].
53
Eg, Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services, supra, n 38;
Official Receiver v Zhi Charles, supra, n 31.
54
See Hysan, at [123]. See also Fok Chun Wa v Hospital Authority, supra, n 32.
55
For example, Kong Yunming v Director of Social Welfare, supra, n 52.
56
Fok Chun Wa v Hospital Authority, supra, n 32.
57
[2018] HKCFA 28.
17
Secondly, there was at some stage a doubt whether the margin of appreciation should also
apply to the earlier stage, such as the determination of a legitimate objective. This question
was raised in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs where the
Legislature has introduced a legislative amendment to bar its members who have resigned
from contesting for the vacant seat in a by-election within a period of six months. It was a
response to a controversial move where a few legislators decided to resign with an aim to
trigger a by-election where they could seek public mandate on an issue of political reform.
It was argued that the restriction was an unjustifiable restriction on the right to stand for
election. There was a dispute as to the legitimate aim of the restriction. Two aims were
identified: to deter the practice of a member resigning in order to trigger a by-election
which he intends to stand and seeks to be re-elected, which was said to be an improper
objective, and to improve the fair and effective working of the electoral system. The Court
of Appeal held that in determining whether the objective was legitimate, the court should
“accord a broad margin of appreciation to the conclusion that the government/legislature
has reached on that question”.58 This is problematic, as the choice of the aim would
potentially affect the application of the other stages of proportionality analysis. The
determination of the aim of a restriction should be an objective test that is to be
substantiated by evidence, and it is for the court to make a judgment on whether such aim
is legitimate, in the sense that it is within constitutional limits. The Court of Final Appeal
endorsed this approach. After pointing out that there was plenty of evidence in the form of
legislative debates to identify the aim of the restriction, Ribeiro PJ continued:59

“The legitimacy of the aim does not of course depend on the Court agreeing with it.
Indeed, Lord Pannick QC was at pains to emphasise that the Court does not have to
be convinced that the aims, and in particular where the aims are political ones, are
politically correct or even that it agrees with these aims from a political standpoint.
The responsibility of the Court is to be satisfied from a legal point of view that the
aim is first, identifiable and secondly, legitimate in the sense that it lies within
constitutional limits.”

This is a preferable approach. To accord a margin of appreciation to the government at the

first and second steps would unduly tilt the balance in favour of the government and skew
the 3rd and 4th steps in favour of the restriction.

58
[2015] 5 HKLRD 881 (CA), at [7], per Cheung CJHC; [58], per Lam VP.
59
(2017) 20 HKCFAR 353, at [51].
18
A third issue is how the proportionality test squares with the test of rationality or
Wednesbury unreasonableness in traditional judicial review. In describing the manifestly
without reasonable foundation test, Ma CJ said:60

“Where a number of alternative, but reasonable, solutions to a problem exist, the

court will not put itself in a place of the executive or legislature or other authority to
decide which is the best option. That is not its role. The court will only interfere
where the option chosen is clearly beyond the spectrum of reasonable options; in
other words, the option has clearly gone too far (or further than necessary) to deal
with the problem. In this situation, the court will not have been satisfied under the
third limb of the justification test.”

This formulation is almost no different from the classic test of Wednesbury

unreasonableness. Wednesbury is also a device developed by the judiciary to demarcate
the different constitutional roles of the judiciary and the executive. The test has been
considered inadequate when fundamental rights are involved. The courts then responded
by developing a principle of “heightened scrutiny” or a “sliding scale of review” where the
extent of judicial scrutiny should be commensurate with the importance of the rights.61
These common law principles of heightened scrutiny were developed independently of the
proportionality principle under the Human Rights Act, and have been extended to non-
human rights context, such as harbour reclamation when the heighted scrutiny of
proportionality was justified on the ground of legislative intent.62 Indeed, the common law
principles have been developed in remarkable similarity with the principle of proportionality,
save that they were developed from different directions: a more restrained Wednesbury
unreasonableness approach to a heightened scrutiny approach under the common law, and
a more rigorous no more than necessary standard to a more accommodating standard of
manifestly without reasonable foundation under human rights law. Indeed, it has been

60
Fok Chun Wa v Hospital Authority, supra, n 32, at [75(3)]. See also Mok Charles v Tam Wai
Ho [2006] 4 HKLRD 211, at [56]; R (Prolife Alliance) v British Broadcasting Corp [2004] 1 AC
185.
61
R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] 1 AC 514, at
531; R(Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, at [19].
For a more detailed exposition, see J Chan, “A Sliding Scale of Reasonableness in Judicial
Review”[2006] Acta Juridica 233-256; Lord Carnwarth,”From Judicial Outrage to Sliding Scale
– What Next for Wednesbury?”, Annual Lecture to ALBA (12 Nov 2013)
( https://www.supremecourt.uk/docs/speech-131112-lord-carnwath.pdf) (last visited on 31
Oct 2018)
62
Town Planning Board v Society for Protection of the Harbour (2004) 7 HKCFAR 1; see also J
Chan, “Administrative Law”, in Simon Young and Yash Ghai (eds), Hong Kong’s Court of Final
Appeal: The Development of the Law in China’s Hong Kong (Cambridge University Press,
2014), p 417, at pp 435-439.
19
accepted that the two tests should generally produce similar results. In Hysan, Ribeiro PJ
stated:63

“In general terms, where the Board reaches decisions which are not flawed on
traditional judicially reviewable grounds, any imposed restrictions which encroach
upon a landowner’s property rights should be subject to constitutional review
applying the ‘manifestly without reasonable foundation’ standard. It is considered
highly unlikely that [the] Board decisions imposing planning restrictions arrived at
lawfully and in conformity with the principles of traditional judicial review, would be
susceptible to constitutional review unless the measures are exceptionally
unreasonable.”

While this passage was made in the context of town planning, there is no reason to believe
that it is inapplicable in other context. Should there be a uniform standard of judicial review,
whether it involves human rights or not, or should two different albeit very similar principles
be retained, one for human rights cases and one for non-human rights cases?64

The Arguments in favour of Bifurcation

Despite various attempts, the House of Lords has rejected proportionality as a separate
ground of judicial review.65 Proportionality, it was held, required the court to judge not only
whether the action taken was within the range of courses of action that could reasonably be
followed but to decide further whether the action was really necessary, thus representing

63
Hysan, supra, n 2, at [142].
64
This issue has attracted lively debates in different jurisdictions, but so far no clear
conclusion could be drawn: See, for example, Wade & Forsyth, Administrative Law (11th ed,
2014), at pp 316-318; Paul Craig, “Proportionality, Rationality and Review” [2010] NZ Law
Review 265; Michael Taggart, “Proportionality, Deference, Wednesbury” [2008] NZ Law
Review 423; Murray Hunt, “Against Bifurcation”, in David Dyzenhaus, Murray Hunt and
Grant Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart
Publishing, 2009), 99, at 121; Tom Hickman, “Problems for Proportionality”[2010] NZ Law
Review 303; Jeff King, “Proportionality: A Halfway House”[2010] NZ Law Review 327; Yossi
Nehushtan, “The Non-Identical Twins in UK Public Law: Reasonableness and
Proportionality”(2017) 50 Isr L Review 69; Jason Varuhas, “Against Unification”, in H Wilberg
and M Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s
Rainbow (Oxford, Hart, 2015), 91; R Williams, “Structuring Substantive Review” [2017]
Public Law 99; Sales, “Rationality, Proportionality and the Development of the Law” (2013]
129 LQR 223; Paul Craig, “The Nature of Reasonableness Review”(2013) 66 Current Legal
Problems 1.
65
R v Home Secretary, ex parte Brind [1999] 1 AC 696, but see a more hesitant view now in
R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60 and Pham v
Secretary of State for the Home Department [2015] UKSC 19; and Keyu v Secretary of State
for Foreign and Commonwealth Affairs [2016] AC 1355, at [278], per Lord Kerr.
20
an unwarranted intrusion into executive autonomy and disturbing the fine balance of
powers between the judiciary and the executive, let alone introducing much uncertainty
into the law.

Three replies could be made. First, it is true that under the doctrine of separation of powers,
there are areas that call for respect for executive autonomy, whether as a matter of
legitimacy or expertise, such that the judiciary should not substitute its own judgment for
that of the executive. However, short of substituting the decisions of the executive, the
doctrine of separation of powers does not by itself mandate the intensity of judicial
scrutiny.66 In a crude form, under this doctrine, the role of the court is to determine the
legality and the constitutionality of an executive action, and in so doing, the court should be
wary not to be too intrusive in engaging the wisdom or merits of the executive decisions.
The Wednesbury test is an attempt to draw the line, but this line has never been static and
the doctrine of separation of powers itself provides nothing to help delineating the exact
limits of judicial scrutiny or how rigorous judicial scrutiny should be. There is no warrant,
and indeed it is not borne out in practice, that the judiciary would only be prepared to set
aside an executive decision when it was in the most extreme form of capriciousness and
perversity. As Lord Cooke observed in the Daly case, “I think that the day will come when it
will be more widely recognized that Associate Provincial Picture Houses Ltd v Wednesbury
Corporation was an unfortunately retrogressive decision in English administrative law, in so
far as it suggested that there are degrees of unreasonableness and that only a very extreme
degree can bring an administrative decision within the legitimate scope of judicial
invalidation.”67 The judiciary has long expanded and developed the rationality review; the
Wednesbury standard is a fluid if not also a moving standard. Indeed, many judicial review
cases would not have got off the ground if the classic test propounded by Lord Greene in
Wednesbury were strictly adhere to.

Secondly, as noted above, Wednesbury unreasonableness is not a monolithic test.68 The

courts have repeatedly stated that the Wednesbury standard varies according to context,
and it has been pointed out above that when fundamental rights are engaged, the courts
would adopt a more anxious scrutiny.69 In more recent time, the English courts have

66
See also Kennedy v Charity Commission [2015] 1 AC 455, at [54], per Lord Mance; Pham v
Secretary of State for the Home Department, supra, n 65, where the court accepted that
neither proportionality nor Wednesbury mandated one specific standard of review.
67
R (Daly) v Home Secretary [2001] 2 AC 532 at 548. See also R (Association of British
Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, at [32]-[37], per
Dyson LJ. See also Lord Carnwarth,”From Judicial Outrage to Sliding Scale – What Next for
Wednesbury?”, supra, n 61 and Paul Craig, “The Nature of Reasonableness Review”, supra,
n 64, for a similar sentiment.
68
Paul Craig, “Judicial Review and Anxious Scrutiny: Foundations, Evolution and Application”
[2013] Public Law 60-78; Wade & Forsyth, Administrative Law (11th ed, 2014), at pp 316-318.
69
R v Department of Education, ex p Begbie [2000] 1 WLR 111, at 1130, per Laws LJ; R
(Mahmood) v Home Secretary [2001] 1 WLR 840, at [18]-[19], per Laws LJ; Paul Craig, ibid, n
21
increasingly adopted proportionality as the standard for reviewing decisions impinging on
common law fundamental rights.70 Likewise, the Hong Kong courts have incorporated
proportionality principle into the Wednesbury standard for cases involving equality rights.71

Thirdly, the proportionality test is now much more refined than it was twenty years ago. As
Ribeiro PJ remarked, the principle is now widely accepted in many jurisdictions. The
contribution of Hysan is that it has clarified the standard of review as well as the intensity of
review, bringing together the concepts of a sliding scale of review and the margin of
discretion. The express recognition that proportionality operates on a sliding scale,
reinforced by the built-in flexibility of the principle of margin of discretion, has gone a long
way to address the traditional concern of the judiciary encroaching unjustifiably into
executive autonomy. In light of the latest decision of Hysan, there is little difference
between the principles of proportionality and Wednesbury unreasonableness. As Lord Slynn
observed, the difference between them was in practice much less than it has sometimes
been suggested, and that in most cases the two principles would produce the same result.
Hysan affirmed this view and went further to suggest that if an impugned measure satisfied
the proportionality test, it would be most unlikely that it would fail the Wednesbury
unreasonableness test. 72 At the same time, the concern of uncertainty that would be
brought about by the proportionality test has not materialised. The proportionality test
provides a structured approach to balancing competing interests; it expressly recognizes
that the balancing process would inevitably involve value judgment on the part of the court,
and requires the court to be explicit about such value judgment. The structured,
transparent and context-sensitive approach of proportionality may indeed be preferable to
the sometimes incoherent approach of Wednesbury rationality.73 At least, the uncertainty

68; Lord Carnwarth,”From Judicial Outrage to Sliding Scale – What Next for Wednesbury?”,
supra, n 61; J Chan, “A Sliding Scale of Reasonableness in Judicial Review”, supra, n 61.
70
Pham v Secretary of State for the Home Department, supra, n 65; Keyu v Secretary of State
for Foreign and Commonwealth Affairs, supra, n 65; Yoursef v Secretary of State for Foreign
and Commonwealth Affairs [2016] AC 1457.
71
Lubiana v Director of Immigration, supra, n 38; QT v Director of Immigration, supra, n 28.
72
It has been suggested that the reverse may not be true, that is, if an impugned measure
satisfies the Wednesbury test, it would not necessarily also pass the proportionality test.
This argument treats Wednesbury as a monolithic standard. If the impugned measure
satisfies the Wednesbury test, it would be difficult to see how it would not satisfy the
manifestly without reasonable foundation test, as they are virtually the same. If it is
insufficient to satisfy the manifestly without reasonable foundation test and a more
vigorous threshold has to be met in the circumstances (such as when fundamental right is at
stake), it would likely mean that the traditional Wednesbury test is insufficient and the court
would in any event adopt a more rigorous review. On the other hand, if the matter falls
outside the court’s expertise or its constitutional role, a wide margin of appreciation would
be afforded and the test would be manifestly without reasonable foundation, which will be
the same as the Wednesbury test.
73
See also Murray Hunt, “Against Bifurcation”, supra, n 64, at 121.
22
in applying the proportionality test is probably no greater than that of applying the
Wednesbury test.74

The case of merging the principle of proportionality and Wednesbury unreasonableness, at

least when fundamental rights are at issue, is overwhelming. But how about non-rights
cases? A few arguments have been put forward to support the retention of the
Wednesbury principle. First, it was argued that the proportionality test was designed to
balance individual rights, which have acquired constitutional significance, against public
interest. Thus, it works well in scrutinizing the justifications put forward by the
administration in restricting fundamental rights. This principle, however, does not work
well when no rights are involved and the court may simply have to weigh different policy
choices.75 This argument is likely to be exaggerated. Whether fundamental right is involved
or not, the court is still engaging in a process of checks and balances, which is the essence of
separation of powers. There is no compelling reason why a different process of checks and
balances is required simply because rights are not at stage. Even when no right is involved,
the court would still be required to balance individual interest against public interest. 76 It
will still be required to make some evaluative judgment on the importance of the claimant’s
interest and the significance of the purposes and objectives of the underlying legislative or
executive schemes. Such balancing is inherent in judicial review. The balancing process is
no different from the balancing process between an individual right to social welfare and
the public interest in maintain the sustainability of the welfare system,77 or the public
interest in protecting the harbour against the need of reclamation for development. 78 The
doctrine of margin of appreciation as developed in Hysan allows the courts to take into
account the context of the decision in determining the standard and intensity of review.
Indeed, in QT v Director of Immigration, the Court of Final Appeal accepted that the
proportionality analysis was equally applicable in determining whether a policy may be
impugned as Wednesbury unreasonable.79

Secondly, and relating to the first argument, a normative argument has been made that
human rights law and common law judicial review serve different public law functions and
there is no reason why they should be unified. Varuhas argued that human rights law is

74
See QT v Director of Immigration, supra, n 28, at [87] where the Court of Appeal accepted
that the proportionality approach was equally applicable in a Wednesbury consideration.
75
In R (British Telecommunications plc) v Secretary of State for Business, Innovation and
Skills [2011] EWHC 1021, at [213], the court observed that “it is hard enough for the
legislature … to weigh all the possible implications of a range of policy choices that re
theoretically open, but is well nigh impossible for a judge.”
76
See also Paul Craig, “Proportionality, Rationality and Review” [2010] NZ Law Review 265;
Murray Hunt, “Against Bifurcation”, supra, n 64, at 121
77
As in Kong Yunming v Director of Social Welfare, supra, n 52; Fok Chun-wa v Hospital
Authority, supra, n 32.
78
Town Planning Board v Society for Protection of the Harbour, supra, n 62.
79
[2018] HKCFA 28, at [87].
23
about vindication of individual rights, whereas common law judicial review is about checking
abuse of public power.80 Again three replies could be made. First, the replacement of the
Wednesbury unreasonable test by the proportionality test does not exclude other grounds
of judicial review that has been developed over time. It is not the argument of this paper
that proportionality should replace common law judicial review. If a decision could be set
aside on grounds of factual or evidential error, or the taking into consideration of relevant
factors or failing to take into consideration irrelevant factors, or being ultra vires, or being a
breach of legitimate expectation or the rules of natural justice, these grounds are not
affected by the adoption of the proportionality principle in the substantive review. 81
Secondly, the central argument of Varuhas rests on a distinction of the functions between
human rights law and common law judicial review. In Hong Kong, the majority of human
rights claims are directed at legislative encroachment. When the court has to consider
whether a restriction on professional medical advertising was a justifiable restriction on the
right to freedom of expression;82 whether a lengthened residential requirement for basic
social welfare was an unjustifiable infringement of the right to social welfare;83 whether a
reverse onus provision was an unjustifiable inroad into the right to be presumed
innoncent;84 whether the ground of ordre public for prohibiting a public demonstration was
an unjustifiable restriction of the right to public assembly,85 or whether differential hospital
charges between a permanent resident and a non-permanent resident was a violation of the
right to equality before the law,86 the court has to balance between individual rights and
public interest. When constitutionality is at issue, the case goes far beyond individual
interests. The analogy of human rights law with tort law, and hence the focus on individual
rights - upon which lies the central argument of Varuhas, simply breaks down. Further, in
most of these cases, the claimant is not claiming individual remedies. A declaration is the
usual remedy whereas a claim for damages is the exception. The distinction of functions
between common law judicial review serving as a check against abuses of public power and
human rights law aiming at vindication of individual rights is unsound and not borne out by
practice, at least in Hong Kong. Thirdly, the rigid distinction between Wednesbury as a
second resort remedy whereby respect is given to executive or legislative autonomy while
proportionality allows the court to be the primary decision maker on proportionality is
overtaken by event. A major contribution of Hysan is that proportionality is not a single
standard, but embraces a continuum of intensity of review that is context specific, and the
development of the doctrine of margin of appreciation in determining the intensity of

80
Jason Varuhas, “Against Unification”, supra, n 64.
81
See also Paul Craig, “Proportionality, Rationality and Review”, supra, n 64.
82
Kwok Hay Kwong v Medical Council, supra, n 22.
83
Kong Yunming v Director of Social Welfare, supra, n 52.
84
HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614; HKSAR v Lam Kwong Wai, supra, n 22.
85
Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229.
86
Fok Chun-wa v Hospital Authority, supra, n 32.
24
review takes care of most of the objections that are based on the extent of judicial
intervention.

A procedural objection has also been taken that the burden of proof of Wednesbury
unreasonableness and proportionality test is different.87 With proportionality, the burden
of justifying a restriction on fundamental rights lies with the administration, whereas with
Wednesbury, the burden is on the claimant to show that the impugned decision is
unreasonable in the public law sense. Again, the difference is probably exaggerated and the
significance has not been borne out in practice. With proportionality, it is still for the
claimant to prove that his right has been infringed and the infringement could not be
justified. While technically the burden of proof of justifications rests with the Government,
it is unlikely that the claim would be successful if the claimant is unable to show that the
justifications are inadequate. It is only in the most exceptional cases that the balancing
process would hinge on the fine burden of proof. Likewise, with Wednesbury, it is for the
claimant to show that his interest has been encroached. Once this is shown, the modern
trend is to require justifications from the administration, taking into consideration whatever
margin of appreciation that is warranted in the circumstances. At the heart of the case is
the question of intensity of review, which is now taken care of by the doctrine of margin of
appreciation and is context sensitive. The burden of proof is likely to be immaterial to the
outcome in the large majority of cases and the difference is at best at the conceptual level
only with little practical significance.

A variant of this argument is that Wednesbury unreasonableness is a cause of action

whereas proportionality is just a step or an approach in an action for a violation of human
rights.88 This is a formal objection rather than a real difference. There is little substance in
drawing a difference between a decision being struck down as being Wednesbury
unreasonable and a decision being struck down for being a disproportionate violation of the
interest of the claimant. Nor is there any convincing reason why proportionality could not
be developed into a cause of action.

Another objection is that the replacement of the Wednesbury unreasonableness test by the
proportionality test/manifestly without reasonable foundation test may result in excessive
deference to the administration in non-rights cases. The margin of appreciation may result
in excessive judicial deference to the executive or the legislative action when fundamental

87
Wade and Forysth, Administrative Law, supra, n 64, pp 315-317. Varuhas raised other
procedural objections, such as standing, actionable per se, strict liability and so on, but he
seems to have in mind human rights claims that are analogous to tort claims, such as
trespass and false imprisonment: see Varuhas, “Against Unification”, supra, n 64. The bulk
of human rights claims in Hong Kong goes far beyond tort claims, and none of these
procedural issues are of any significance between human rights claims and common law
judicial review in Hong Kong.
88
See Varuhas, “Against Unification”, supra, n 64.
25
right is involved,89 and it may be more attempting to adopt judicial deference when no
fundamental right is involved. This is a real concern, but it is not addressed by the
preservation of a separate Wednesbury test, which inherently embraces a certain degree of
judicial deference as well. The concern is addressed by the courts, which have repeatedly
emphasized that the manifestly without reasonable foundation standard or a wide margin
of appreciation does not mean that the court will not be vigilant when it is appropriate to do
so or that the administration has some sort of carte blanche.90 As the Court of Final Appeal
has repeatedly stressed:91

“It would however be a mistake to suppose that the ‘manifestly inappropriate’ test
means that the court’s scrutiny of the justification for the measure is cursory or
perfunctory. While the court will be slow to substitute its own evaluative judgment
for that of the primary decision-maker, and will not intervene merely because it would
have struck a different balance between countervailing considerations, it will consider
in some depth the factual foundation and reasoning underlying that judgment.”

Sadly, this warning of the Court of Final Appeal is observed more by lip service. Time and
again the courts might be too ready to accept the Government’s justification without
conducting a rigorous scrutiny of the factual basis of its claims. In this regard, the rigorous
examination of the factual foundation of the claim of justification in Kong Yunming and QT
was an exception.

Hysan has cleared up a lot of misunderstanding about the proportionality principle. It

provides a coherent framework for balancing fundamental rights and public interests, and
there is no reason why the same framework is inapplicable to non-rights cases. As Lord
Slynn remarked, “Trying to keep the Wednesbury principle and proportionality in separate
compartments seems to me to be unnecessary and confusing.”92 There is no logical reason
why one set of approach has to be adopted in human rights cases and another set of
approach has to be adopted in common judicial review when the issue in both sets of cases
is about the proper delineation of the scope of judicial intervention against legislative or
executive excess. It is time to inject conceptual coherence and bring an end to this
confusing state of parallel principles in the review of public administration.

89
See Cora Chan, “Judicial Deference at Work: Some Reflections on Chan Kin Sum and Kong
Yun Ming” (2010) 40 HKLJ 1, and Cora Chan, ‘Deference and the Separation of Powers: An
Assessment of the Court’s Constitutional and Institutional Competences’ (2011) 41 HKLJ 7.
90
Fok Chun wa v Hospital Authority, supra, n 32, at [77].
91
Hysan, at [123], quoting from Lords Reed and Toulson JJSC stated in R (Lumsdon) v Legal
Services Board [2016] AC 687.
92
R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and
the Regions, supra, n 1, at 1406.
26
Conclusion

Hysan provides a valuable conceptual framework for the application of the proportionality
principle. The addition of the 4th stage of fair balance is to be welcome, but this fair balance
should not be relegated to a residual consideration. The fair balance test, which looks at the
effect of an impugned measures, lies at the heart of any proportionality test, and is of equal
importance as the determination on the scope of the restriction, which should go no further
than what the legitimate objective requires. The 3rd and the 4th stage serve different
purposes and involve different kinds of balance. Unfortunately, the way the 4 th stage is
formulated by the Court of Final Appeal suggested that it is a residual consideration of
secondary importance and a more cursory scrutiny may be adopted. This conclusion is
unsound in principle and unsupported by case law.

In this regard, a distinction may be drawn between restriction of a fundamental right by

legislative provision and through an exercise of discretionary power. With regard to the
constitutionality of an exercise of discretion when the legislative scheme itself is not
challenged or is found to be constitutional, the fair balance test is crucial. In these cases, the
mere fact that the legislative scheme passes muster the first three stages of constitutional
scrutiny does not necessarily or logically lead to a conclusion that a fair balance has been
shown, as the distribution effect could only be considered at the 4 th stage of fair balance.
In contrast, with regard to the constitutionality of an encroachment by a legislative
provision, individual circumstances are of less significant as they just serve to illustrate the
unfairness of the legislative provision. In these cases, it is difficult if not artificial to separate
the scope of the restriction (the 3rd step) from the effect or impact of the restriction (the 4th
step). These two issues will be inextricably linked. However, even in such context, the
secondary nature of the fair balance test may not be justified if the courts are prepared to
give the Government a wide margin of appreciation in determining the legitimate aim, or to
adopt a low standard of reasonable necessity rather than strict necessity. As revealed by a
number of post Hysan cases, the courts may just focus on the scope of restriction or the
standard of scrutiny at the 3rd stage and then fail to give sufficiently rigorous scrutiny of the
impact of the encroachment on individual rights at the 4th stage. It is better to reinsert the
equal importance of the 3rd and the 4th steps in any proportionality analysis and reject any
impression that the fair balance test is only of secondary importance.

Hysan also offers a structured approach to the difficult task of balancing individual interests
and public interests, embracing the a priori importance of protecting fundamental rights in
our legal system on the one hand, and allowing sufficient flexibility in the balancing to allow
the court to take into account legitimate consideration pertaining to the doctrine of
separation of powers on the other. The mingling of the standard of review with the
intensity of review through the doctrine of margin of appreciation provides a new
dimension of the concept of proportionality. This conceptual framework is equally
applicable to rights and non-rights cases. Nor is there any justification for retaining a

27
 bifurcate system of proportionality principle and Wednesbury unreasonableness in judicial
review. The concern is the same, namely to work out a coherent framework to
accommodate judicial intervention to ensure good governance, which embraces both
accountability of the exercise of public powers as well as respect for human rights. A single
test of proportionality principle is more coherent, more structured, and more transparent.

Finally, and more importantly, the Hysan judgment provides an explicit acknowledgement
that proportionality inevitably involves a value judgment. An assertion that socio-economic
right is of less importance than civil and political rights, or the readiness to justify the
restriction of a fundamental right by the slightest threat on national security, or an
assessment of the importance of protecting the institution and status of marriage, inevitably
involves a value judgment. An analysis of these factors will require the court to be more
explicit in expressing its value judgment in balancing between competing interests. In this
regard, diversity within the judiciary is of great importance, not so much that gender or class
background of judges will influence their value choices, but on the simple ground that a
diversity of judicial background will enrich the decision-making process of an important
institution that is endowed with great powers and responsibilities to make value judgments
with grave consequences.93

93
See Hazel Genn, Judging Civil Justice, Hamlyn Lecture 2008 (Cambridge University Press,
2010), at p 153.
28

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