M
9.
(a) whether the applicant has an arguable case against the
defendant;
(b)
whether the applicant will suffer "substantial and irreparable" loss if the interim injunction is not granted,
therefore making it necessary to grant an injunction
because the applicant may not be adequately compensated by
an award of damages for any loss suffered prior to the
trial if the defendant is allowed to proceed; and, if both
those issues are determined in the affirmative;
(c) whether, "on the balance of convenience", an interim
injunction should be granted (i.e whether the granting of
the interim injunction would cause more harm to the
defendant than not granting it would cause to the
plaintiff).
Over several centuries the courts have established an
enormous repository of case law governing the exercise of their discretion to grant interim injunctions. Non-compliance with an interim injunction is a contempt of court punishable by imprisonment, sequestration of property, or a fine.
10.
In Hong Kong, the United Kingdom and most other common law jurisdictions, neither a permanent or an interim injunction may be
granted against the Crown: (See, however, paragraph 36 re the Herbage Case.). Formerly the reason for this in constitutional theory was that the courts exercise their judicial authority on behalf of the Crown (as defined in paragraph 2). Accordingly any orders of the
courts are themselves made on behalf of the Crown and it would be
incongrous for the Crown to give orders restraining itself. Since 1957 in Hong Kong, however, this principle has been codified into section 16 of the Crown Procedure Ordinance (and its United Kingdom
equivalent, section 21 of the Crown Proceedings Act 1947) which
states :
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