LEE MIU LING v. ATTORNEY GENERAL

1994 M.P. No. 1696

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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R U L I N G

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1. The Plaintiff seeks to exercise her right to vote by universal and equal suffrage as guaranteed by Art. 21 of the Hong Kong Bill of Rights. She contends that that right is being infringed by the provisions of the Legislative Council (Electoral Provisions) Ordinance (Cap. 381) ("the Ordinance") relating to functional constituencies. In these proceedings, which were begun by originating summons, she seeks a declaration that these provisions were repealed by virtue of section 3(2) of the Hong Kong Bill of Rights Ordinance (Cap. 383).

2. When this case was assigned to me last week, it occurred to me that the right which the Plaintiff seeks to enforce could be argued to be a public law right, which, by virtue of the decision of the House of Lords in O'Reilly v. Mackman [1983] 2 A.C. 237, should be enforced by way of judicial review under Ord. 53 of the Rules of the Supreme Court, rather than by an ordinary action, whether begun by writ or by originating summons. On my instructions, my clerk wrote to the parties informing them that at the commencement of the hearing, I would want to be satisfied that the originating summons procedure which the Plaintiff had adopted was appropriate.

3. The question whether the challenge to the legality of the provisions of the Ordinance should continue by ordinary action or by way of judicial review is not merely a procedural question of interest only to the lawyers. Good administration requires that public authorities should not be troubled by frivolous challenges to decisions made by them, and that serious challenges to their decisions should be made and determined quickly. For that reason, the Rules of the Supreme Court provide in Ord. 53 for applications by way of judicial review to be subject to a judicial filtering process to ensure that only arguable cases go to a full hearing, and to be subject to strict time limits. It was in order to prevent litigants from getting around those procedural safeguards that the House of Lords decided in O'Reilly v. Mackman that it was an abuse of the court's process for challenges to decisions of public authorities, which could have been made by way of judicial review, to be made by way of an ordinary action.

4. Miss Gladys Li Q.C. for the Plaintiff, and Mr. Geoffrey Ma Q.C. for the Government who is the Defendant in this case, point to the unique nature of these proceedings. This is not a challenge to a decision of a public authority, or to a judgment or order made in quasi-judicial proceedings. This is a constitutional challenge to the legality of primary legislation, and it may be that our rules of procedure are not entirely apt to deal with challenges of that kind. However, this is not the case in which that issue needs to be debated. That is because the Government does not object to this action proceeding by way of originating summons. The Government, therefore, does not seek to rely on the procedural safeguards which Ord. 53 might otherwise have afforded it. In O'Reilly v. Mackman, Lord Diplock said at page 285 E-F :

"...... though it may normally be appropriate [to strike out ordinary actions when the proceedings should have been begun by judicial review] ...... there may be exceptions, particularly ...... where none of the parties objects to the adoption of the procedure by writ or originating summons."

In these circumstances, I am not prepared to characterise the decision of the Plaintiff to proceed by way of originating summons as an abuse of the court's process. I am, I think, fortified in that view by what Lord Diplock said a little earlier in his speech at p. 285A to the effect that the power of the High Court to prevent abuse of its process should be exercised upon a case to case basis. Like Lord Diplock in that case, I do not believe that it would be wise to use this as an occasion to lay down categories of cases in which it would necessarily always be an abuse to seek, in an action begun by writ or originating summons, a remedy against infringement of rights of the individual that are entitled to protection in public law.

5. For these reasons, the action may proceed by way of originating summons.

(Brian Keith)

Judge of the High Court