TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 192

29-

CONFIDENTIAL

Bill of Rights and Remedies against the Crown

COMMENT ON PART A

(1) No injunction can be obtained against the Crown

itself. This is the historical position which has been preserved by proviso (a) to sub-section

16(1) of the Crown Proceedings Ordinance (CPO).

[Agreed. It was possible prior to 1947 in England to sue the AG for a declaration which might indirectly, or possibly for a declaration which might directly affect the rights of the Crown. Such an action

is now within 1947 Act by reason of s.23(2)(b),

which is, in Hong Kong, s.19(2)(b) of our Crown

Proceedings Ordinance (Cap 300). Whereas before 1947 in England the rule relating to no injunctions against the Crown was a rule at common law it became

stated in s.21 of the 1947 Act which is s.16 of

our Ordinance. Hence it is now a statutory rule governing these suits for a declaration. A subsequent change in the applicability of this action for

declaration against the Crown occurs in the O'Reilly

v. Mackman decision (1982 3 WLR 1096) of 1982 which

makes it mandatory to proceed by judicial review

rather than by action or matter if it raises a

question of public as opposed to private law.

So some but not all of the former declaration cases

against the Crown may now have to be taken under

0.53.1

(2) The Crown would be suable in tort under section

4 of the CPO, in respect of violations of rights protected by the Bill of Rights committed by servants or agents of the Crown, if such violations would

otherwise amount to tort (a.g. aooault or false

imprisonment), or if the Bill wela to provide that

CONFIDENTIAL