Case: Director of Public Works v Ho Po Sang [1961] AC 901
Outcome: considered
Director of Public Works v Ho Po Sang [1961] AC 901, the Judicial Committee considered a matter arising under Hong Kong planning law. The law contemplated the exercise of a vice-regal discretion to permit rebuilding on land occupied by tenants of the owner. Relevantly, their Lordships observed at 922: It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. His Honour referred to Ho Po Sang where the relevant party was held to have had only a "hope or expectation" and continued: The rights conferred by the Aboriginal Lands Rights Act do not fall into this category. On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. At 696 his Honour said: These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been in set in train before the repeal or amendment. The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang , there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented "by a non-discretionary decision of an official or a court" would survive, "provided that any statutory machinery has been set in train before the repeal or amendment." The "non-discretionary decision" seems to be the equivalent of the investigation contemplated in Ho Po Sang . Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber . Pursuant to s 361A(2) the person "shown to own such improvements shall be entitled" to the grant of a lease. Much of the argument in this matter proceeded upon the basis that satisfaction of the Minister for Lands and the Council as to ownership of the improvements was a condition precedent to any right conferred upon the owner. However such an approach puts too much emphasis upon the form of the section and too little upon its clear intention. There can be no doubt that the intention was that the owner of improvements be entitled to a lease. It was necessary for the Council (as trustee) and the Minister for Lands to be satisfied that a particular person was the person entitled to a lease relating to the improvements in question. However that requirement seems to be a process of the kind contemplated in Ho Po Sang , namely an investigation necessary in order to give effect to an entitlement, rather than a condition precedent to such entitlement.