Contrasting Responses to the ‘Coughlan Moment’: Legitimate Expectations in Hong Kong and Singapore

Abstract

The doctrine of procedural legitimate expectations has long been a part of the jurisprudence in both Hong Kong and Singapore, but it is only relatively recently that either has had to contend with the issue of substantive legitimate expectations. This push to recognise substantive legitimate expectations follows the prompt to do so from landmark cases like R v North and East Devon Health Authority; ex parte Coughlan [2001] QB 213 in the English context. Although Coughlan was a significant motivator for the developments in Singapore and Hong Kong, the law has evolved differently. In Hong Kong, legitimate expectations are generally enforced either as a relevant consideration, or protected only at the procedural level. In Singapore, the High Court has recently suggested that the time may be approaching to recognise legitimate expectations substantively and in a much more far reaching way than in the post-Coughlan era in England. This chapter examines how the courts of Singapore and Hong Kong have each adopted their own approach to recognising substantive legitimate expectations, both of which are at odds with both Coughlan and the post-Coughlan development of the law in England. This chapter considers the ‘Coughlan’ moment, the inception point of the contemporary doctrine of substantive legitimate expectations, in both jurisdictions and the contemporary trajectory of the law on substantive legitimate expectations in each jurisdiction. It will examine how the two jurisdictions have dealt with the typical questions relating to the various parts of the ‘anatomy’ of a substantive legitimate expectation. In discussing the many internal features of the doctrine, this chapter will highlight the ways in which both jurisdictions have departed from Coughlan on most of these questions. It will then discuss issues that will need to be resolved on these aspects of substantive legitimate expectations in both jurisdictions.