Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 54

APPLICATIONS FOR WRIT OF HABEAS CORPUS

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Application
for writ of habeas corpus ad subjiciendum (O. 54, r. 1)

(1) An application for a writ of habeas corpus ad subjiciendum shall be made
to a single judge in court, except that-

   (b)  at any time when no judge is sitting in court, it may be made to a
        judge otherwise than in court; and

   (c)  any application on behalf of a minor must be made in the first
        instance to a judge otherwise than in court.

(2) An application for such writ may be made ex parte and, subject to
paragraph (3), must be supported by an affidavit by the person restrained
showing that it is made at his instance and setting out the nature of the
restraint.

(3) Where the person restrained is unable for any reason to make the affidavit
required by paragraph (2), the affidavit may be made by some other person on
his behalf and that affidavit must state that the person restrained is unable
to make the affidavit himself and for what reason.

2. Power of Court to whom ex parte application made (O. 54, r. 2)

(1) The judge to whom an application under rule 1 is made ex parte may make an
order forthwith for the writ to issue, or may- (See App. A, Forms 87, 88)

   (a)  where the application is made otherwise than in court, direct that an
        originating summons for the writ be issued, or that an application
        therefor be made by originating motion to a judge in court;

   (b)  where the application is made to a judge in court, adjourn the
        application so that notice thereof may be given, or direct that an
        application be made by originating motion.

(2) The summons or notice of the motion must be served on the person against
whom the issue of the writ is sought and on such other persons as the judge
may direct, and, unless the judge otherwise directs, there must be at least 8
clear days between the service of the summons or notice and the date named
therein for the hearing of the application.

3. Copies of affidavits to be supplied (O. 54, r. 3)

Every party to an application under rule 1 must supply to every other  party
on demand copies of the affidavits which he proposes to use at the hearing of
the application.

4. Power to order release of person restrained (O. 54, r. 4)

Without prejudice to rule 2(1), the judge hearing an application for a writ of
habeas corpus ad subjiciendum may in his discretion order that the person
restrained be released, and such order shall be a sufficient warrant to any
superintendent of a prison, constable or other person for the release of the
person under restraint.

5. Directions as to return to writ (O. 54, r. 5)

Where a writ of habeas corpus ad subjiciendum is ordered to issue, the judge
by whom the order is made shall give directions as to the judge before whom,
and the date on which, the writ is returnable.

6. Service of writ and notice (O. 54, r. 6)

(1) Subject to paragraphs (2) and (3), a writ of habeas corpus ad subjiciendum
must be served personally on the person to whom it is directed.

(2) If it is not possible to serve such writ personally, or if it is directed
to a superintendent of a prison or other public official, it must be served by
leaving it with a servant or agent of the person to whom the writ is directed
at the place where the person restrained is confined or restrained.

(3) If the writ is directed to more than one person, the writ must be served
in manner provided by this rule on the person first named in the writ, and
copies must be served on each of the other persons in the same manner as the
writ.

(4) There must be served with the writ a notice (in Form No. 90 in Appendix A)
stating the judge before whom and the date on which the person restrained is
to be brought and that in default of obedience proceedings for committal of
the party disobeying will be taken.

7. Return to the writ (O. 54, r. 7)

(1) The return to a writ of habeas corpus ad subjiciendum must be indorsed on
or annexed to the writ and must state all the causes of the detainer of the
person restrained.

(2) The return may be amended, or another return substituted therefor, by
leave of the judge before whom the writ is returnable.

8. Procedure at hearing of writ (O. 54, r. 8)

When a return to a writ of habeas corpus ad subjiciendum is made, the return
shall first be read, and motion then made for discharging or remanding the
person restrained or amending or quashing the return, and where that person is
brought up in accordance with the writ, his counsel shall be heard first, then
counsel for the Crown, and then one counsel for the person restrained in
reply.

9. Bringing up prisoner to give evidence, etc. (O. 54, r. 9)

(1) An application for a writ of habeas corpus ad testificandum or of habeas
corpus ad respondendum must be made on affidavit to a judge in chambers.

10. Form of writ (O. 54, r. 10)

A writ of habeas corpus must be in Form No. 89, 91 or 92 in Appendix A,
whichever is appropriate. (Enacted 1988)