D. Legitimate expectation
When we talk about “legitimate expectation”, one must be careful to distinguish between procedural legitimate expectation and substantive legitimate expectation. Where a public officer represents to a member of the public that either (1) a particular procedure will be adopted to reach a certain decision, or (2) a particular decision will be made, then unless such course of action would contravene public interest, the individual would have a legitimate expectation which should be protected.
Generally speaking, the conditions for the forming of a legitimate expectation are:
(1) the government or public authority made a clear and unambiguous promise, representation, practice or policy;
(2) the expectation generated must be reasonable in light of the official conduct giving rise to the expectation; and
(3) the expectation must be legitimate such that the Court will not give effect to a legitimate expectation which involves the decision-maker acting contrary to the law or exercising his statutory discretion in a way which undermines the statutory purpose.
The rationale behind such ground is to ensure that public bodies, which have, through their officers, made representations to members of the public are held accountable for such representations, especially when acting inconsistent with such representations would lead to an unjust or unfair result. See for example AG v Ng Yuen Shiu [1983] 2 AC 629 (procedural legitimate expectation) Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 (substantive legitimate expectation).
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