Suchan Investment Limited v The Ministry of National Heritage & Culture & 3 others

Section 25(3) of the National Museums & Heritage Act obliges the Minister personally to consider objections lodged. Neither the Minister nor his representative attended the meeting; National Museums officers did not know why it was convened and are not the competent organ to receive objections. No written note, memorandum or letter showed the Minister considered the objection, so Legal Notice No. 128 was issued without the statutory pre-condition being fulfilled.

Lord Mustill's statement in Doody that there is no general common law duty to give reasons is superseded. Article 47(2) as read with Sections 4(3)(d), 5(d)(i), 6(2)(a) and 6(4) of the Fair Administrative Action Act imposes a statutory obligation to give written reasons; Section 6(4) creates a presumption of a decision taken without good reason where reasons are absent. The Minister gave no written reasons and made no written determination of the objection.

The respondents' argument rested on pre-2010 law. The bifurcated, non-exclusive regime under Section 5(2) of the Act permits both statutory judicial review and other constitutional or written-law remedies. Common law review grounds have been subsumed under Article 47 and Section 7 of the Act, and the rules of natural justice are now constitutional rights enforceable by aggrieved parties.

Section 7(2)(l) makes proportionality a ground of review, inviting greater intensity of review and evaluation of the balance struck by the decision-maker, guided by Article 24(1)(b) and (e). Grounds such as failure to consider relevant considerations, abuse of discretion and unreasonableness require assessment of facts. However, the reviewing court may only set aside, declare rights and remit under Section 11; decision-making on merits remains the administrator's preserve.

It was undisputed that the Minister had power under Section 25(1)(b) and (c), but the legal issue was whether the property had historical, cultural, archaeological or paleontological interest. The assertion that Mr. Desai served in LEGCO was a statement from the bar with no evidential value. Failure to disclose supporting evidence vitiates the decision.

The right to be heard is fundamental. There was no evidence the appellant was heard on its objection; the Ministry's feasibility study was never availed to it, and Section 4(3)(b) and (g) of the Fair Administrative Action Act require an opportunity to be heard and disclosure of materials relied upon. Denial of a hearing also deprived the appellant of the chance to discharge its Section 64 burden of proof.