4. Reasons

4. Reasons

A decision-maker has no general duty to give reasons under common law, unless a particular statute requires it to do so, or where the circumstances so require.  However, there is a growing trend of recognising a general duty on part of administrative decision-makers to give reasons: See e.g. Trustees of Church of England in Diocese of Victoria, Hong Kong v Town Planning Board [2020] HKCFI 501; Chow Oi Ting Amy v Housing Authority [2020] 6 HKC 270.

In any event, if a decision-maker decides to voluntarily give reasons, such shall be subject to the same level of scrutiny as if there was an express duty to give reasons: Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155.

Generally speaking, the reasons given must

(1) enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved, and (2) enable aggrieved persons to assess their prospects of obtaining some alternative reliefs or resolutions: See the discussion in Oriental Daily Publisher v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279; Wei Linghui v Hong Kong Federation of Insurers Insurance Agent Registration Board & Another [2019] 4 HKLRD 387 and English decisions of  South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953 and R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC Admin 901.

The Court, may, in appropriate and exceptional cases admit ex post facto reasons, but it generally adopts a cautious approach. The relevant considerations are:

(1) whether the new reasons are consistent with the original reasons;

(2) whether it is clear that the new reasons are indeed the original reasons or whether the new reasons were only composed later to support or justify the decision;

(3) the delay; and

(4) the circumstances in which the later reasons were put forward, see R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538.