TNAG-2173-FCO40-3110-Hong-Kong-Bill-of-Rights-1990 — Page 197

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at least the federal jurisdiction in Canada) an

injunction is not available in Hong Kong against a Crown officer acting as such even if it is shown that he has exceeded his authority or that his supposed authorization is invalid.

[This is so. But here we are talking about final relief. I cannot improve on Lord Bridge in Factortame at 708G when he says "The form of final relief available against the Crown has never presented any problem. A declaration of right made in proceedings against the Crown is invariably respected and no injunction is required." It is invariably the case that the Hong Kong Government, just as the UK Government does, treats final relief against it in the form of a declaration without question

as binding upon it. To do otherwise would create conflict between executive and judiciary and put the rule of law in question. So I see no need

of reform which would be cosmetic as has been undertaken in some other common law jurisdictions.

By the

same token because it would be cosmetic the form

of final relief is no great issue. Does it achieve any purpose to highlight this interface between judiciary and executive in adversary terms? This may be wholly appropriate to civil litigation between subjects? But as between judiciary and executive different considerations apply.]

Further, the declaratory relief available against the Crown in lieu of an injunction, as confirmed by paragraph 16(1)(a) of the CPO, does not include

an interim declaration. This has been clear, I believe, ever since the decision in Underhill v. Ministry of Food [1950] 1 All E.R. 591 in respect of the comparable provision in the Crown Proceedings

Act, 1947.

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