RIGHT TO INHERENT DIGNITY MOVEMENT ASSOCIATION AND ANOTHER v. HKSAR GOVERNMENT AND ANOTHER

RIGHT TO INHERENT DIGNITY MOVEMENT ASSOCIATION AND ANOTHER v. HKSAR GOVERNMENT AND ANOTHER

The leave requirement (as reflected in Order 53 Rule 3 and Section 27K(3) HCO) is a necessary and proportionate measure that does not infringe the constitutional right of access to courts or fair hearing rights; the applicant failed to show a reasonably arguable case, did not comply with procedural requirements and thus leave is refused and costs are awarded.

Citation
RIGHT TO INHERENT DIGNITY MOVEMENT ASSOCIATION AND ANOTHER v. HKSAR GOVERNMENT AND ANOTHER
Parties
1st Applicant: Right to Inherent Dignity Movement Association; 2nd Applicant: Ma Pui Tung; 1st Respondent: Hong Kong SAR Government; 2nd Respondent: Rules Committee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 August 2008
Case Number
HCAL74/2008
Procedural Posture
Judicial Review Constitutional Challenge / Application for Leave to Apply for Judicial Review (decision)
Outcome
Application for leave refused
Legal Topics
Leave Requirement, Judicial Review Procedure, Access to Courts, Fair Hearing, ICCPR, Basic Law
Source Language
EN
Constitutional Law Administrative Law Human Rights Leave Requirement Judicial Review Procedure Access to Courts Fair Hearing ICCPR +1 more

Case Brief

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Parties

Right to Inherent Dignity Movement Association

1st Applicant

Ma Pui Tung

2nd Applicant

Hong Kong SAR Government

1st Respondent

Rules Committee

2nd Respondent

Procedural Posture

Judicial Review Constitutional Challenge / Application for Leave to Apply for Judicial Review (decision)

Legal Issues

  1. 1 Whether Order 53 Rule 3 (and Section 27K(3) HCO) is unconstitutional as limiting access to courts
  2. 2 Whether the leave requirement, time limits and discretionary remedies deny effective judicial remedy under Article 35 Basic Law and ICCPR Articles 14-15
  3. 3 Whether a hearing on a leave application engages Article 14 fair trial rights

Ratio Decidendi

The leave requirement (as reflected in Order 53 Rule 3 and Section 27K(3) HCO) is a necessary and proportionate measure that does not infringe the constitutional right of access to courts or fair hearing rights; the applicant failed to show a reasonably arguable case, did not comply with procedural requirements and thus leave is refused and costs are awarded.

Court Disposition

Application for leave refused

Orders

  • Leave to apply for judicial review refused
  • Costs order nisi: 2nd Applicant to pay costs of 1st Respondent for the hearing on 13 August 2008, to be taxed if not agreed (pursuant to Order 42 Rule 5B(6))