Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 53

APPLICATIONS FOR JUDICIAL REVIEW

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Cases
appropriate for application for judicial review (O. 53, r. 1)

(1) An application for-

   (a)  an order of mandamus, prohibition or certiorari, or

   (b)  an injunction under section 21J of the Ordinance restraining a person
        from acting in any office in which he is not entitled to act, shall be
        made by way of an application for judicial review in accordance with
        the provisions of this Order.

(2) An application for a declaration or an injunction (not being an injunction
mentioned in paragraph (1)(b)) may be made by way of an application for
judicial review, and on such an application a judge may grant the declaration
or injunction claimed if he considers that, having regard to-

   (a)  the nature of the matters in respect of which relief may be granted by
        way of an order of mandamus, prohibition or certiorari,

   (b)  the nature of the persons and bodies against whom relief may be
        granted by way of such an order, and

   (c)  all the circumstances of the case, it would be just and convenient for
        the declaration or injunction to be granted on an application for
        judicial review.

2. Joinder of claims for relief (O. 53, r. 2)

On an application for judicial review any relief mentioned in rule 1(1) or

(2) may be claimed as an alternative or in addition to any other relief so
mentioned if it arises out of or relates to or is connected with the same
matter.

3. Grant of leave to apply for judicial review (O. 53, r. 3)

(1) No application for judicial review shall be made unless the leave of
the Court has been obtained in accordance with this rule.

(2) An application for leave must be made ex parte by filing in the Registry-

   (a)  a notice in Form 86A containing a statement of-

        (i)    the name and description of the applicant,

        (ii)   the relief sought and the grounds upon which it is sought,

        (iii)  the name and address of the applicant's solicitors (if any),
               and

        (iv)   the applicant's address for service; and

   (b)  an affidavit verifying the facts relied on.

(3) The judge may determine the application without a hearing, unless a
hearing is requested in the notice of application, and need not sit in open
court; and in any case the Registrar shall serve a copy of the judge's order
on the applicant. (HK)(4) Where an application for leave is refused by a judge
or is granted on terms, the applicant may appeal against the judge's order to
the Court of Appeal within 10 days after such order.

(6) Without prejudice to its powers conferred by Order 20, rule 8, the Court
hearing an application for leave may allow the applicant's statement to be
amended, whether by specifying different or additional grounds or relief or
otherwise, on such terms, if any, as the Court thinks fit.

(7) The Court shall not grant leave unless it considers that the applicant has
a sufficient interest in the matter to which the application relates.

(8) Where leave is sought to apply for an order of certiorari to remove for
the purpose of its being quashed any judgment, order, conviction or other
proceeding which is subject to appeal and a time is limited for the bringing
of the appeal, the Court may adjourn the application for leave until the
appeal is determined or the time for appealing has expired.

(9) If the Court grants leave it may impose such terms as to costs and as to
giving security as it thinks fit.

(10) Where leave to apply for judicial review is granted, then-

   (a)  if the relief sought is an order of prohibition or certiorari and
        the Court so directs, the grant shall operate as a stay of the
        proceedings to which the application relates until the determination
        of the application or until the Court otherwise orders;

   (b)  if any other relief is sought, the Court may at any time grant in the
        proceedings such interim relief as could be granted in an action begun
        by writ.

4. Delay in applying for relief (O. 53, r. 4)

(1) An application for leave to apply for judicial review shall be made
promptly and in any event within three months from the date when grounds for
the application first arose unless the Court considers that there is good
reason for extending the period within which the application shall be made.
(L.N. 356 of 1988)

(2) Where the relief sought is an order of certiorari in respect of any
judgment, order, conviction or other proceeding, the date when grounds for the
application first arose shall be taken to be the date of that judgment, order,
conviction or proceeding.

(3) The preceding paragraphs are without prejudice to any statutory provision
which has the effect of limiting the time within which an application for
judicial review may be made.

5. Mode of applying for judicial review (O. 53, r. 5)

(HK)(1) When leave has been granted to make an application for judicial
review, the application shall be made by originating motion to a judge sitting
in open court or, if the judge granting leave has so ordered, by
originating summons, to a judge in chambers.

(3) The notice of motion or summons must be served on all persons directly
affected and, where it relates to any proceedings in or before a court and the
object of the application is either to compel the court or an officer of
the court to do any act in relation to the proceedings or to quash them or any
order made therein, the notice or summons must also be served on the clerk or
registrar of the court and, where any objection to the conduct of the judge is
to be made, on that judge.

(4) Unless the Court granting leave has otherwise directed, there must be at
least 10 days between the service of the notice of motion or summons and the
day named therein for the hearing.

(5) A motion must be entered for hearing within 14 days after the grant of
leave.

(6) An affidavit giving the names and addresses of, and the places and dates
of service on, all persons who have been served with the notice of motion must
be filed before the motion is entered for hearing and, if any person who ought
to be served under this rule has not been served, the affidavit must state
that fact and the reason for it; and the affidavit shall be before the Court
on the hearing of the motion.

(7) If on the hearing of the motion the Court is of opinion that any person
who ought, whether under this rule or otherwise, to have been served has not
been served, the Court may adjourn the hearing on such terms (if any) as it
may direct in order that the notice may be served on that person.

6. Statements and affidavits (O. 53, r. 6)

(1) Copies of the statement in support of an application for leave under rule
3 must be served with the notice of motion or summons and, subject to
paragraph (2), no grounds shall be relied upon or any relief sought at the
hearing except the grounds and relief set out in the statement.

(2) The Court may on the hearing of the motion or summons allow the applicant
to amend his statement, whether by specifying different or additional grounds
or relief or otherwise, on such terms, if any, as it thinks fit and may allow
further affidavits to be used by him. (L.N. 223 of 1995)

(3) Where the applicant intends to ask to be allowed to amend his statement or
to use further affidavits, he shall give notice of his intention and of any
proposed amendment to every other party.

(4) Any respondent who intends to use an affidavit at the hearing shall file
it in the Registry as soon as practicable and in any event, unless the Court
otherwise directs, within 56 days after service upon him of the documents
required to be served by paragraph (1). (L.N. 404 of 1991)

(5) Each party to the application must supply to every other party copies of
every affidavit which he proposes to use at the hearing, including, in the
case of the applicant, the affidavit in support of the application for leave
under rule 3.

7. Claim for damages (O. 53, r. 7)

(1) On an application for judicial review the judge may, subject to paragraph
(2), award damages to the applicant if-

   (a)  he has included in the statement in support of his application for
        leave under rule 3 a claim for damages arising from any matter to
        which the application relates, and

   (b)  the Court is satisfied that, if the claim had been made in an action
        begun by the applicant at the time of making his application, it could
        have been awarded damages.

(2) Order 18, rule 12, shall apply to a statement relating to a claim for
damages as it applies to a pleading.

8. Application for discovery, interrogatories, cross-examination, etc. (O. 53,
r. 8)

(1) Unless the judge otherwise directs, any interlocutory  application in
proceedings on an application for judicial review may be made to any judge in
chambers or a master.

(2) In this paragraph "interlocutory application" (非正審申請) includes
an application for an order under Order 24 or 26 or Order 38, rule 2(3), or
for an order dismissing the proceedings by consent of the parties.

(3) This rule is without prejudice to any statutory provision or rule of law
restricting the making of an order against the Crown.

9. Hearing of application for judicial review (O. 53, r. 9)

(1) On the hearing of any motion or summons under rule 5, any person who
desires to be heard in opposition to the motion or summons, and appears to
the Court to be a proper person to be heard, shall be heard, notwithstanding
that he has not been served with notice of the motion or the summons.

(2) Where the relief sought is or includes an order of certiorari to remove
any proceedings for the purpose of quashing them, the applicant may not
question the validity of any order, warrant, commitment, conviction,
inquisition or record unless before the hearing of the motion or summons he
has lodged with the Registrar a copy thereof verified by affidavit or accounts
for his failure to do so to the satisfaction of the  Court hearing the motion
or summons.

(3) Where an order of certiorari is made in any such case as is referred to in
paragraph (2), the order shall, subject to paragraph (4), direct that the
proceedings shall be quashed forthwith on their removal into the Court of
First Instance. (25 of 1998 s. 2)

(4) Where the relief sought is an order of certiorari and the Court is
satisfied that there are grounds for quashing the decision to which the
application relates, the Court may, in addition to quashing it, remit the
matter to the court, tribunal or authority concerned with a direction to
reconsider it and reach a decision in accordance with the findings of the 
Court.

(5) Where the relief sought is a declaration, an injunction or damages and
the Court considers that it should not be granted on an application for
judicial review but might have been granted if it had been sought in an action
begun by writ by the applicant at the time of making his application,
the Court may, instead of refusing the application, order the proceedings to
continue as if they had been begun by writ; and Order 28, rule 8, shall apply
as if the application had been made by summons.

10. Saving for person acting in obedience to mandamus (O. 53, r. 10)

No action or proceeding shall be begun or prosecuted against any person in
respect of anything done in obedience to an order of mandamus.

12. Consolidation of applications (O. 53, r. 12)

Where there is more than one application pending under section 21K of the
Ordinance against several persons in respect of the same office, and on the
same grounds, the Court may order the applications to be consolidated.

13. Order made by judge may be set aside, etc. (O. 53, r. 13)

(HK) An appeal shall lie, from an order of a judge granting or refusing an
application for judicial review, to the Court of Appeal, which may set aside
or confirm any such order or substitute such order as ought to have been made.

14. Meaning of "Court" (O. 53, r. 14)

In relation to the hearing by a judge of an application for leave under rule 3
or of an application for judicial review, any reference in this
Order to "the Court" (法庭) shall, unless the context otherwise requires, be
construed as a reference to the judge. (Enacted 1988)