TNAG-1826-FCO40-2594-Hong-Kong-courts-and-legal-system-1988 — Page 9

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It is an indispensable part of the present legal system of Hong Kong.

Under this system, the power of the Government is not only defined and limited by law but is also monitored and reviewed by the courts (which pursue the principle of judicial independence) as to whether the Government has

acted unlawfully or in an ultra vires manner.

Procedures for the application for judicial reviews are

(24) set out in detail in Article 53 of the "Rules of the Supreme Court " For example, the applicant has to obtain leave of the court before he

(25) can formally file his application

With such leave and upon

filing a formal application, indictment papers must be sent to all

(26). persons concerned in the case

For example, if the applicant requests judicial review of a decision made by a government official or authorities, the indictment papers should then be sent to them accordingly. During the hearing of the application, the court has to apply relevant legal principles and, on the basis of the evidence and arguments presented by both sides, arrive at a fair verdict in

accordance with the law.

There is an interesting question : if a British official or

government body makes a decision that affects the rights and interests of

a citizen of Hong Kong, can this citizen apply for judicial review of

that decision by the court of Hong Kong? It should be noted that such

cases are very rare as decisions affecting the people of Hong Kong are

usually made by officials or authorities of Hong Kong (on their own or

with British instructions). But if that really happens, we have to consider

two things. First, as mentioned above, leave must be otabined from a

court prior to the application for judicial review. Under the circumstances

considered here, the court may refuse to grant leave for the reason that

it is improper for the court of Hong Kong to review an administrative act

done in the U.K. Secondly, even if the applicant can obtain "leave" of the

Another question will be whether the indictment papers can be sent

to the British officials or authorities concerned.

court.

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