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Thus, section 21K(1) of the HCO, echoed by O 53 r 1(1), lays it down that :-
"An application to the Court of First Instance for one or more of the following forms of
relief—
(a)
an order of mandamus, prohibition or certiorari;
(b)
an injunction under section 21J restraining a person not entitled to do so from
acting in an office to which that section applies,
shall be made in accordance with rules of court by a procedure to be known as an application
for judicial review."
In other words, if the remedy sought is one of those remedies, the litigant must
proceed by way of judicial review.
Section 21K(2) (echoed by O 53 r 1(2)) prescribes that where declarations and
injunctions are sought in analogous cases, the litigant may bring judicial review
proceedings where it would be just and convenient for him to do so.
The difficulty is that it is sometimes not clear whether the conduct challenged is
amenable to judicial review and so capable of resulting in the relevant remedies. The
problem is not acute where deciding this very issue would dispose of the complaint
altogether. However, where the complaint is plainly capable of being pursued at law
in one form or another, the remedy-based approach to deciding whether O 53
proceedings should be instituted is unsatisfactory. It may lead to preliminary litigation
which does nothing to advance resolution of the underlying dispute. Thus, there are
examples of cases where arguments as to whether proceedings should or should not be
taken by way of judicial review have led to full argument and reserved judgments.
Notes
For example in Shau Lin Chi v Secretary for the Civil Service HCAL 4 of 1999, 7 April 2000
(Beeson J) and Fong Yiu Bun v Commissioner of Police HCAL 2305 of 2001, 30 May 2002 (Chung
J).
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