Higher HK courts tend to rule against government: study Higher courts in Hong Kong have ruled more often against the government in cases involving the Basic Law than lower ones, according to the first study on the subject by a central government think tank. The study by the State Council's Hong Kong and Macau Research Institute found that, while the Court of Final Appeal ruled in favour of applicants in half the cases it concluded, the Court of First Instance did so in only a quarter of cases and the Court of Appeal in a third. The government was never an applicant in any of the cases reviewed. Now the researchers are looking for reasons for the discrepancy, which they say does not occur in major jurisdictions such as the United States, Britain and France. 'We will study why the difference occurs. We will look into the judges' background and see whether we can find some clues,' said Simon Lee Hoey, a visiting fellow at Tsinghua University's School of Law, and researcher for the study. Legal experts were divided over the survey, but a constitutional law professor said the presence of foreign judges on the highest court - criticised by some mainland figures but defended by the Hong Kong government - could be 'beneficial' for more 'liberal interpretations'. The research was published in the spring issue of the institute's journal, Hong Kong and Macau Studies. It has not been formally released in Hong Kong. Reports of the institute's studies will be sent to state leaders and the departments responsible for Hong Kong affairs. The study found that there were 79 judicial review cases on the grounds of the Basic Law between July 1997 and November 2005. Of these, 49 cases were about acts of the legislature, while the other 30 concerned administrative behaviour. A total of 96 judgments were made by the courts, with 53 ruled as constitutional (ie, in favour of the government) and 29 unconstitutional, with the remaining 14 without a conclusion or referred to other courts (see table). The difference in rulings among the courts was most apparent in those cases concerning social order. While the Court of First Instance ruled in favour of the government 10 out of 14 times, the Appeal Court did so in eight out of 15 verdicts. However, the Court of Final Appeal ruled only eight out of 20 judgments as constitutional. 'Such a clear spilt did not happen in courts in the US, Britain and France,' Mr Lee said. The analysis found the Immigration Ordinance and its amendments were the main targets for legal challenges. They were tested 15 times, followed by six reviews of civil service pay. Constitutional law expert Yash Ghai said the findings appeared to show the top court was 'a bit more balanced' in its rulings than the lower courts. 'I suspect the presence of an external judge is beneficial for what one might call more 'liberal' interpretations,' Professor Ghai said, adding the Court of Final Appeal might also be more conscious of its obligation to set good precedents. University of Hong Kong associate law professor Simon Young said one could not readily draw an inference that the top court tended to rule more often against the government than lower courts.