C. Unreasonableness
In summary, a decision is unlawful if it falls outside the range of reasonable responses open to the decision-maker or no sensible person could have properly made it. In judicial review proceedings, it is commonly known as “Wednesbury unreasonableness”, derived from a 1947 English decision of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Sometimes it is also known as “irrationality” or “illogicality”.
In the later decision of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock (of the House of Lords) framed it as “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. In Hong Kong see for example the recent decision of 803 Funds Limited v Secretary for Education [2021] 4 HKLRD 735.
This is a high threshold and a stringent test; the Court will not interfere simply because it disagrees with the decision-maker or that there are other reasonable options open to him. However, the Court may scrutinize the decision closer when, for example, fundamental rights are engaged.
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