-8A
B
A
17.
A particular feature of this application needs to be
B
highlighted, and that is that the Applicant seeks a mandatory
C
D
E
injunction — an order requiring the Government to do a certain thing.
Moreover, if granted, it will be an order that finally determines and
effectively disposes of the underlying proceedings so far as the
C
D
E
second decision is concerned.
F
F
18.
In the context of mandatory injunction in private law, as
G
G
Ma J (as the Chief Justice then was) stated in Music Advance Ltd v The
H
I
Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 10413
at §12(7):
K
L
I
“… generally a court will have to feel a high degree of
assurance that at the trial of an action it will be shown that the
interlocutory injunction was rightly granted before an
interlocutory mandatory injunction will be given …”
J
19.
H
Further, in a case that Ma J relied on, Films Rover
J
K
L
International Ltd v. Cannon Films Sales Ltd [1987] 1 WLR 670 at 681,
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M
Hoffmann J said this:
N
“In addition to all these practical considerations, there is also
what might be loosely called a ‘due process’ question. An
order requiring someone to do something is usually perceived
as a more intrusive exercise of the coercive power of the state
than an order requiring him temporarily to refrain from action.
The court is therefore more reluctant to make such an order
against a party who has not had the protection of a full hearing
at trial.”
O
P
Q
R
S
20.
In the context of judicial review proceedings, depending on
the character in substance of the injunctive order sought, there is a further
N
O
P
Q
R
S
dimension to consider, and that is, the proper role of the court in the
T
T
3
U
V
decided in 2002.
U
V