TNAG-1596-FCO40-2181-Constitutional-development-in-Hong-Kong-1988 — Page 70

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rarely cause "damages" (in the legal sense) to the Crown itself

although it will likely cause enormous harm or inconvenience to the

public.

30.

If, for instance, an applicant was to restrain the

construction of a road for several months then the Crown (i.e. the

Queen and the Hong Kong Government) would suffer little loss that

would be compensatible by damages. Nevertheless, the general public might be greatly inconvenienced. In such cases an undertaking by a plaintiff to pay the Crown's damages resulting from an interim releif

is worthless. It follows that potentially the remedy could be abused

by applicants who know that in seeking an interim declaration and

giving an undertaking as to damages they have little to lose.

31.

Equally, and for much the same reasons, the Crown is rarely

able to show that interim relief should not be granted "on the

balance of convenience". The Crown, as distinct from the general

public, rarely suffers any inconvenience if the Crown's actions are

restrained.

32.

Alternative Remedies

The next argument against the

recommendation is that, even without interim declarations, a person

affected by Government actions has alternative remedies.

33.

Firstly, virtually every piece of legislation empowering

the Government to act, other than emergency procedures, also provides

to affected persons a right to appeal against any decision to so act.

34.

Secondly, if the Government acts illegally, it will always

be liable to pay compensation to persons affected.

35.

Thirdly, if an applicant could show a real risk that the

Government was about to act so as to cause irreparably loss, the

Courts have power to order an expedited hearing. Pursuant to such an

order a party could apply for a final declaration and could have his case prepared for trial and decided in only a matter of weeks.

In

some cases final declarations have even been obtained in a matter of

days.

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