Understanding Public Interest Litigation in Hong Kong

Abstract

The law on standing for public interest litigation in Hong Kong appears to be in disarray, as the courts have been vacillating between three different positions. In response to this unsatisfactory state of law, this paper argues that, in deciding whether a public-spirited claimant has locus standi to bring a judicial review claim against the government over the sufferance of a non-private injury, the following test should be employed by the courts. At the threshold stage when seeking leave, as well as proving that he or she has a reasonably arguable case, the applicant must show that he or she is the appropriate candidate to bring this judicial review action. Where the injury is a generalized grievance, this means that the claimant must raise a serious issue of public importance concerning a governmental breach of duty or illegality, and that he or she is a reasonable and effective party to bring this issue before the court. Where the injury is not a generalized grievance but the applicant is essentially asserting a third-party claim on behalf of another, the claimant must prove that he or she shares a close and common interest with the actual aggrieved in the subject matter of the litigation and he or she is a more effective litigant than the latter in bringing suit. These same principles in deciding the appropriateness of the claimant's candidature should also govern the rules of standing when the case goes to trial such that a claimant may still be denied standing at trial after the court has the opportunity to examine the full record at the hearing inter partes.