Top court acts on increase in judicial reviews

PUBLISHED : Saturday, 01 December, 2007, 12:00am
UPDATED : Saturday, 01 December, 2007, 12:00am

The city's top court has raised the bar in terms of what people must show in order to initiate a judicial review.

The Court of Final Appeal made the ruling in the case of Peter Po Fun-chan, an accountant whose application for a judicial review of several decisions of the Hong Kong Institute of Certified Public Accountants was refused by the Court of First Instance, but granted by the Court of Appeal.

The institute then appealed to the highest court, which decided to look at what the threshold for granting leave should have been.

It was an important question, the court said, because of the rapid growth in the use of judicial review proceedings in Hong Kong.

Until yesterday, Hong Kong's courts were bound to apply the test of 'potential arguability', which the top court, adding its own emphasis to key words, described as showing that 'on further consideration at a subsequent hearing an arguable case might be demonstrated'.

That meant that under the previous regime, only 'plainly hopeless' cases would have been dismissed, the court said, whereas under the stricter test imposed yesterday, only cases shown to be reasonably arguable would proceed.

'A reasonably arguable case is one which enjoys realistic prospects of success,' the court said.

'Whilst ... it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities, the public interest ... requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.'

Legal sources said that while the ruling did lift the threshold for obtaining leave, it did not lift it by a significant amount. Rather, the judgment seemed to be aimed at removing doubt about borderline cases and discouraging vexatious challenges.

However, prominent human rights lawyer Mark Daly said the judgment might end up curtailing one of the few avenues Hong Kong people had for challenging the actions of their government.

'With the stricter test, many human rights cases are not going to see the light of day,' he said. 'Legal aid is going to be more difficult to get because they are going to be employing the new standard.' Without legal aid, some people would be unable to take even the first step of seeking leave for a review.