F. Relief

F. Relief

If the applicant succeeds, the Court has the discretion to order relief, depending on the circumstances, including the most common form of a “certiorari” (or a “quashing order”), a “mandamus” (or a “mandatory order”), a prohibition order, an injunction, or a declaration, etc.: See Order 53 section 1 of the Rules of the High Court (Cap. 4A).  This is a discretionary power and the Court will take into account a wide range of factors, including any delay that the applicant may have (or the conduct of the applicant generally), whether there are alternative remedies, whether granting the relief would be likely to cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration.  Importantly, where it is a case on procedural unfairness, the Court will also consider whether there is any prejudice to the applicant arising from the breach: Leung Fuk Wah Oil v Commissioner of Police [2002] 3 HKLRD 653.

In simple terms:

1. A “quashing order” is an order requiring the relevant decision be brought into the Court of First Instance to be quashed. Its effect is to recognise that the decision is invalid for one or more reasons in public law and that the court has seen fit to exercise its discretion to intervene.

2. A “mandatory order” is an order requiring a decision-maker to perform its specified duty in public law. Its effect is to recognise that the decision-maker has failed to perform a specific duty and that the court has seen fit to exercise its discretion to intervene.

3. A “prohibition order” is an order restraining a decision-maker from acting. Its effect is to recognise that the decision-maker is acting or will act in the future improperly and that the court has seen fit to exercise its discretion to intervene.

4. An “injunction”, traditionally, restrains a person from acting in any office in which he is not entitled to act (formerly known as quo warranto proceedings).  It may in some circumstances overlaps with “prohibition order”.

5. A “declaration” serves to pronounce authoritatively the meaning of any constitutional or statutory provision, the legality of any policy or non-statutory arrangement, the lawfulness of the exercise of any administrative or legislative power, or the rights of parties.

The law does not recognise a general right to claim damages for losses caused by an unconstitutional or unlawful administrative action: Saeed v Secretary for Justice [2015] 1 HKLRD 1030 opined that this remains an open question.  Nevertheless, the court may award damages to the applicant if such a claim is included in the application and there is a right to damages in private law: See Order 53 section 7(1)(b) of the Rules of the High Court (Cap. 4A) and section 21K of the High Court Ordinance (Cap. 4).  The Applicant will have to plead his or her case as if he or she is pleading the case in an ordinary private law action. 

It is noteworthy that where leave to apply for judicial review on public law grounds was refused to an applicant and he did not pursue an appeal, or the appeal was dismissed, a subsequent private law action by the applicant seeking to argue the same grounds in substance albeit for different relief may amount to an abuse of the court process, and be liable to be struck out.