Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 53

APPLICATIONS FOR JUDICIAL REVIEW

(Past version on 01/07/1997).
(Past version on 30/06/1997).

1A. Interpretation (O. 53, r. 1A)

In this Order-

"application for judicial review" (司法覆核申請) includes an application
in accordance with this Order for a review of the lawfulness of-

   (a)  an enactment; or

   (b)  a decision, action or failure to act in relation to the exercise of a
        public function;

"interested party" (有利害關係的一方、有利害關係的各方), in
relation to an application for  judicial review, means any person (other than
the applicant and respondent) who is directly affected by the application.
(L.N. 152 of 2008)

1. Cases appropriate for application for judicial review (O. 53, r. 1)

(1) An application for judicial review must be made if the applicant is
seeking-

   (a)  an order for mandamus, prohibition or certiorari; or

   (b)  an injunction under section 21J of the Ordinance restraining a person
        from acting in any office in which he is not entitled to act.

(2) An application for judicial review may be made if the applicant is
seeking-

   (a)  a declaration; or

   (b)  an injunction (not being an injunction mentioned in paragraph

(1)(b)).

(3) An application for judicial review may include an application for an award
of damages, restitution or the recovery of a sum due but may not seek such a
remedy alone. (L.N. 152 of 2008)

2. Joinder of claims for relief (O. 53, r. 2)

On an application for judicial review any relief mentioned in rule 1(1) or

(2) may be claimed as an alternative or in addition to any other relief so
mentioned if it arises out of or relates to or is connected with the same
matter.

3. Grant of leave to apply for judicial review (O. 53, r. 3)

(1) No application for judicial review shall be made unless the leave of
the Court has been obtained in accordance with this rule.

(2) An application for leave must be made ex parte by filing in the Registry-

   (a)  a notice in Form No. 86 in Appendix A containing a statement of-

        (i)    the name and description of the applicant;

        (ii)   the name and description of the respondent;

        (iii)  the relief sought and the grounds on which it is sought;

        (iv)   the name and description of all interested parties (if any)
               known to the applicant;

        (v)    the name and address of the applicant's solicitors (if any);
               and

        (vi)   if no solicitor acts for the applicant, the applicant’s
               address for service; and (L.N. 152 of 2008)

   (b)  an affidavit verifying the facts relied on.

(3) The judge may determine the application for leave without a hearing,
unless a hearing is requested in the notice of application, and need not sit
in open court; and in any case the Registrar shall serve a copy of the judge's
order on the applicant. (L.N. 152 of 2008) (HK)(4) Where an application for
leave is refused by a judge or is granted on terms, the applicant may appeal
against the judge's order to the Court of Appeal within 14 days after such
order. (L.N. 152 of 2008)

(6) Without prejudice to its powers conferred by Order 20, rule 8, the Court
hearing an application for leave may allow the applicant's statement to be
amended, whether by specifying different or additional grounds or relief or
otherwise, on such terms, if any, as the Court thinks fit.

(7) The Court shall not grant leave unless it considers that the applicant has
a sufficient interest in the matter to which the application relates.

(8) Where leave is sought to apply for an order of certiorari to remove for
the purpose of its being quashed any judgment, order, conviction or other
proceeding which is subject to appeal and a time is limited for the bringing
of the appeal, the Court may adjourn the application for leave until the
appeal is determined or the time for appealing has expired.

(9) If the Court grants leave it may impose such terms as to costs and as to
giving security as it thinks fit.

(10) Where leave to apply for judicial review is granted, then-

   (a)  if the relief sought is an order of prohibition or certiorari and
        the Court so directs, the grant shall operate as a stay of the
        proceedings to which the application relates until the determination
        of the application or until the Court otherwise orders;

   (b)  if any other relief is sought, the Court may at any time grant in the
        proceedings such interim relief as could be granted in an action begun
        by writ.

4. Delay in applying for relief (O. 53, r. 4)

(1) An application for leave to apply for judicial review shall be made
promptly and in any event within three months from the date when grounds for
the application first arose unless the Court considers that there is good
reason for extending the period within which the application shall be made.
(L.N. 356 of 1988)

(2) Where the relief sought is an order of certiorari in respect of any
judgment, order, conviction or other proceeding, the date when grounds for the
application first arose shall be taken to be the date of that judgment, order,
conviction or proceeding.

(3) The preceding paragraphs are without prejudice to any statutory provision
which has the effect of limiting the time within which an
application for judicial review may be made.

4A. Service of order granting leave
(O. 53, r. 4A)

(1) Where leave to make an application for judicial review is granted,
the Court may also give directions as to the management of the case.

(2) The applicant for judicial review shall, within 14 days after the leave
was granted, serve the order granting leave and any directions given under
paragraph (1) on-

   (a)  the respondent; and

   (b)  such interested parties as may be directed by the Court. (L.N. 152 of
        2008)

5. Mode of applying for judicial review (O. 53, r. 5)

(1) When leave has been granted to make an application for judicial  review,
the application must be made by originating summons in Form No. 86A in
Appendix A to a judge sitting in open court or, if the judge granting leave
has so ordered, to a judge in chambers. (L.N. 152 of 2008)

(3) The originating summons must be served on all persons directly affected
and, where it relates to any proceedings in or before a court and the object
of the application is either to compel the court or an officer of the court to
do any act in relation to the proceedings or to quash them or any order made
therein, the originating summons must also be served on the clerk or registrar
of the court and, where any objection to the conduct of the judge is to be
made, on that judge.

(4) Unless the Court granting leave has otherwise directed, there must be at
least 10 days between the service of the originating summons and the day named
therein for the hearing.

(5) An originating summons must be issued for hearing within 14 days after the
grant of leave.

(6) An affidavit giving the names and addresses of, and the places and dates
of service on, all persons who have been served with the originating summons
must be filed within 7 days of such service and, if any person who ought to be
served under this rule has not been served, the affidavit must state that fact
and the reason for it; and the affidavit shall be before the Court on the
hearing of the originating summons.

(7) If on the hearing of the originating summons the Court is of opinion that
any person who ought, whether under this rule or otherwise, to have been
served has not been served, the Court may adjourn the hearing on such terms
(if any) as it may direct in order that the originating  summons may be served
on that person. (L.N. 152 of 2008)

5A. Affidavit evidence (O. 53, r. 5A)

At the hearing of the application for judicial review, no affidavit may be
relied on unless-

   (a)  rule 6(3), (4) or (5), as the case may be, has been complied with as
        regards the use of affidavits;

   (b)  the affidavit has been served in accordance with any direction of
        the Court; or

   (c)  the Court grants leave. (L.N. 152 of 2008)

5B. Court's powers to hear any person
(O. 53, r. 5B)

(1) Any person may apply for leave to-

   (a)  file evidence; or

   (b)  make representations at the hearing of the application for 
        judicial review.

(2) An application under paragraph (1) must be made promptly.

(3) The Court shall not grant leave under paragraph (1) unless the applicant
appears to the Court to be a proper person to be heard at the hearing of the
application for judicial review. (L.N. 152 of 2008)

6. Statements and affidavits (O. 53, r. 6)

(1) Copies of the statement in support of an application for leave under rule
3 must be served with the originating summons and, subject to paragraph (2),
no grounds shall be relied upon or any relief sought at the hearing except the
grounds and relief set out in the statement. (L.N. 152 of 2008)

(2) The Court may on the hearing of the originating summons allow the
applicant to amend his statement, whether by specifying different or
additional grounds or relief or otherwise, on such terms, if any, as it thinks
fit and may allow further affidavits to be used by him. (L.N. 223 of 1995;
L.N. 152 of 2008)

(3) Where the applicant intends to ask to be allowed to amend his statement or
to use further affidavits, he shall give notice of his intention and of any
proposed amendment to every other party.

(4) Any respondent who intends to use an affidavit at the hearing shall file
it in the Registry as soon as practicable and in any event, unless the Court
otherwise directs, within 56 days after service upon him of the documents
required to be served by paragraph (1). (L.N. 404 of 1991)

(5) Each party to the application must supply to every other party copies of
every affidavit which he proposes to use at the hearing, including, in the
case of the applicant, the affidavit in support of the application for leave
under rule 3.

(6) A reference to a party in paragraphs (3) and (5) includes a reference to
an interested party on whom the applicant is required under rule 4A(2) to
serve the order granting leave for judicial review. (L.N. 152 of 2008)

7. Claim for damages (O. 53, r. 7)

(1) On an application for judicial review the judge may, subject to paragraph
(2), award damages to the applicant if-

   (a)  he has included in the statement in support of his application for
        leave under rule 3 a claim for damages arising from any matter to
        which the application relates, and

   (b)  the Court is satisfied that, if the claim had been made in an action
        begun by the applicant at the time of making his application, it could
        have been awarded damages.

(2) Order 18, rule 12, shall apply to a statement relating to a claim for
damages as it applies to a pleading.

8. Application for discovery, interrogatories, cross-examination, etc. (O. 53,
r. 8)

(1) Unless the judge otherwise directs, any interlocutory  application in
proceedings on an application for judicial review may be made to any judge in
chambers or a master.

(2) In this paragraph "interlocutory application" (非正審申請) includes
an application for an order under Order 24 or 26 or Order 38, rule 2(3), or
for an order dismissing the proceedings by consent of the parties.

(3) This rule is without prejudice to any statutory provision or rule of law
restricting the making of an order against the Crown.

9. Hearing of application for judicial review (O. 53, r. 9)

(1) On the hearing of any originating summons under rule 5, any person who
desires to be heard in opposition to or in support of the originating summons,
and appears to the Court to be a proper person to be heard, shall be heard,
notwithstanding that he has not been served with the originating summons.

(2) Where the relief sought is or includes an order of certiorari to remove
any proceedings for the purpose of quashing them, the applicant may not
question the validity of any order, warrant, commitment, conviction,
inquisition or record unless before the hearing of the originating summons he
has lodged with the Registrar a copy thereof verified by affidavit or accounts
for his failure to do so to the satisfaction of the Court hearing the
originating summons.

(3) Where an order of certiorari is made in any such case as is referred to in
paragraph (2), the order shall, subject to paragraph (4), direct that the
proceedings shall be quashed forthwith on their removal into the Court of
First Instance. (25 of 1998 s. 2)

(4) Where the relief sought is an order of certiorari and the Court is
satisfied that there are grounds for quashing the decision to which the
application relates, the Court may, in addition to quashing it, remit the
matter to the court, tribunal or authority concerned with a direction to
reconsider it and reach a decision in accordance with the findings of the 
Court.

(5) Where the relief sought is a declaration, an injunction or damages and
the Court considers that it should not be granted on an
application for judicial review but might have been granted if it had been
sought in an action begun by writ by the applicant at the time of making his
application, the Court may, instead of refusing the application, order the
proceedings to continue as if they had been begun by writ; and Order 28, rule
8, shall apply. (L.N. 152 of 2008)

10. Saving for person acting in obedience to mandamus (O. 53, r. 10)

No action or proceeding shall be begun or prosecuted against any person in
respect of anything done in obedience to an order of mandamus.

12. Consolidation of applications (O. 53, r. 12)

Where there is more than one application pending under section 21K of the
Ordinance against several persons in respect of the same office, and on the
same grounds, the Court may order the applications to be consolidated.

13. Order made by judge may be set aside, etc. (O. 53, r. 13)

(HK) An appeal shall lie, from an order of a judge granting or refusing an
application for judicial review, to the Court of Appeal, which may set aside
or confirm any such order or substitute such order as ought to have been made.

14. Meaning of "Court" (O. 53, r. 14)

In relation to the hearing by a judge of an application for leave under rule 3
or of an application for judicial review, any reference in this
Order to "the Court" (法庭) shall, unless the context otherwise requires, be
construed as a reference to the judge.

15. Transitional provisions relating to
Part 24 of Amendment Rules
2008 (O. 53, r. 15)

(1) Where, immediately before the commencement* of the Amendment Rules 2008,
an application for leave to apply for judicial review is pending, then nothing
in Part 24 of the Amendment Rules applies in relation to the application and
(if leave is granted) the subsequent application for judicial review, and this
Order as in force immediately before the commencement continues to apply as if
that Part had not been made.

(2) Where, immediately before the commencement of the Amendment Rules 2008, an
application for judicial review is pending, then nothing in Part 24 of the
Amendment Rules 2008 applies in relation to the application, and this Order as
in force immediately before the commencement continues to apply as if that
Part had not been made. (L.N. 152 of 2008) (Enacted 1988)
___________________________________________________________________________
______________ Note:

* Commencement day: 2 April 2009.

"interlocutory application" (非正審申請)

"the Court" (法庭)

"application for judicial review" (司法覆核申請)

"interested party" (有利害關係的一方、有利害關係的各方)