Hong Kong courts’ judicial review screening system is working well, despite a few high-profile abuses

In a recent speech at the Foreign Correspondents’ Club, retired permanent judge of the Court of Final Appeal Henry Litton slammed the abuse of judicial reviews in Hong Kong by politicians and public policy advocates.

He specifically singled out the judicial review application of Yvonne Leung Lai-kwok, former head of the University of Hong Kong student union, in March, to challenge the government’s proposal for selecting the chief executive in 2017. Litton believes there were no reasonable grounds for the application and, indeed, Mr Justice Thomas Au Hing-cheung did dismiss the case.

Litton said the case was “simply grandstanding, inappropriate posturing and should be roundly condemned”. He added that the High Court had lost its compass in upholding the discipline of law, wasting time in writing lengthy judgments on such abuses.

Judicial reviews are about judges’ looking into the lawfulness of a decision or action taken by a public body. They challenge the way a decision was made, rather than the rights or wrongs of the conclusion reached. They are not really concerned with conclusions as long as the law and correct procedures have been followed. The court will not substitute what it thinks is a “correct” decision.

Litton said that “judicial review is not available for challenges to government policy. That’s a fundamental rule in the separation of powers”, also citing two other cases of abuse to make his point. Here, Litton’s concern is the proliferation of political advocates’ use of a judicial review as a means, and the court as a forum, to debate and challenge government policy. The courtroom “is not a debating hall or a classroom”, he said.

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