TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 193

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any violation of the rights it protects would amount

to a tort.

1

(3)

[Agreed.

A principal purpose of 1947 legislation in England was to make the Crown liable in tort.

If the Bill of Rights created a new tort it would

fall under this head.]

[With this paragraph I comment sentence by sentence.]

Unlawful acts in violation of the Bill of Rights for which prerogative writs would have provided remedies against public boards, officers, etc. would be reviewable through an application for judicial review as provided for in section 21K of the Supreme Court Ordinance (SCO) and Order

53 of the Rules of the Supreme Court.

["Unlawful acts in violation of the Bill of Rights"

I assume here that these words do not refer to alleged assaults or imprisonment except where there may be a cause of action in contract or tort in private law, ancillary to what is primarily public law claim. I assume they do refer to public law decisions (including failure to act or make a decision) where cltimately the decision making process is found to be flawed and judicial review is ordered. While the word "unlawful" may be used in a general sense in this context, under the present law it is a "start again"-procedure where the flawed decisions are nullified by order of the court. Such situations (leaving aside maverick decisions such as a recent one by Mr. Justice Godfrey) do not found private law rights for damages except in exceptional cases

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