"Proportionality after Hysan: Fair Balance, Manifestly without Reasonable Foundation and Wednesbury Unreasonableness"
Hong Kong Law Journal
Vol 49, Part 1 of 2019, pp 265-294
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 which 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.