2. Frustrating legislative purpose & achieving improper purpose
Where the law grants power to a decision-maker for a particular purpose, the decision-maker must only exercise that power in fulfilment of such purpose. If a decision is made in contravention of such purpose, then the power was invalidly exercised. It does not matter whether the wrongful exercise of power was due to an improper motive or an honest mistake. Further, where legislation does not expressly spell out a particular purpose, it is up to the courts to determine and imply what the ambit of the powers is.
The test on whether power was exercised for an improper purpose was laid down in The Incorporated Owners of Wah Kai Industrial Centre, Texaco Road & Ors v Secretary for Justice [2000] 2 HKLRD 458: (1) If a decision was honestly made on the basis of a proper purpose, it is immaterial that a subsidiary objective was also achieved; and (2) if a decision was made for achieving various purposes, only the dominant purpose(s) would define a decision’s legality.
A purpose is not dominant if the power would have, regardless of it, been exercised. The Court also emphasized that it was for the applicant to show that the decision-makers, although professing to exercise their powers for the statutory purpose, are in fact employing them in furtherance of some ulterior object.
In this case, the applicant argued their land could only be resumed for railway purposes and not for redevelopment. The Court rejected the argument and held that what the applicants showed was that at most at some earlier stages there were discussions on the redevelopment potential. However, there was no evidence that development potential of the relevant land was actually considered during the decision-making process.
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