LEELAN RUKESH MARASINGHE v. DIRECTOR-GENERAL OF CIVIL AVIATION

HCAL 1457/2018

[2022] HKCFI 2483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1457 OF 2018

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BETWEEN

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JUDGMENT

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APPLICATIONS BEFORE COURT

1.  There are pending before court in these proceedings the following applications by Mr Leelan Rukesh Marasinghe (“applicant”):

(1) by notice of application for leave to apply for judicial review issued herein on 24 July 2018 (“Form 86”) for leave to apply for judicial review (“JR leave Application”) to challenge the decision made by the Director-General of Civil Aviation (“putative respondent”) in April 2018 to maintain the suspension of the applicant’s Hong Kong class one medical certificate (“Review Decision”);

(2) by summons filed on 29 November 2019 for leave to:

(a) amend the Form 86 (“Amendment Application”); and

(b) file and serve the 3^rd affirmation of Wong Sai Kit and the 5^th Affirmation of the applicant in support of the proposed amendments to the Form 86 (“Further Evidence Application”);

(3) by summonses taken out on 2 July 2019 for specific discovery of all emails and other correspondence during specified periods between:

(a) Dr H K Kong (“Dr Kong”) and other members of the Original Review Panel (as defined below);

(b) Dr Kong and other members of the New Review Panel (as defined below); and

(c) between Dr Robert Cocks (“Dr Cocks”) and Dr Kong, relating to the Appeal (as defined below)

(“Discovery Applications”); and

(4) by praecipe for writ of subpoena ad testificandum also dated 2 July 2019 to adduce oral evidence from Dr Cocks (“Oral Evidence Application”).

LEAVE APPLICATION

Background leading to the Review Decision

2.  To put these applications in context, I refer to, and repeat hereinbelow, the summary of facts in [6] to [19] of the decision I handed down herein on 6 November 2019, allowing the applicant’s application for split hearings of the application for leave and the substantive judicial review (“Split Hearing Direction”) in variation of the direction for a “rolled up” hearing made by Anderson Chow J (as he then was) on 25 July 2018. Although such summary is based on the averments in the Form 86, unless otherwise qualified in this decision, the events mentioned under this heading are largely matters of record, which do not appear to me to be controversial. Where it is convenient, I also incorporate relevant material disclosed in the respondent’s evidence in opposition filed after the Split Hearings Direction which, likewise, seems to be controversial.

3.  The applicant is a commercial aircraft pilot previously in the employ of Cathay Pacific Airways Limited (“CX”).

4.  The operation of an aircraft registered in Hong Kong requires a licence (“AN(HK)O Licence”) granted by the respondent on behalf of the Chief Executive of the Hong Kong Special Administrative Region (“CE”) under article 20(1)(c) of the Air Navigation (Hong Kong) Order 1995 (“AN(HK)O”).

5.  In addition, the holder of an AN(HK)O Licence cannot work as a pilot unless he is also issued with a valid medical certificate issued by the respondent on behalf of the CE pursuant to article 20(7) of the AN(HK)O.

6.  In November 2013, the applicant was diagnosed with “problematic use of alcohol”, which resulted in CX subjecting him to various regular no-notice alcohol consumption detection tests from December 2013. Insofar as it is material:

(1) On 9 March 2016, the applicant’s carbohydrate deficient transferrin biomarker test (“CDT test”) result was 2.7%, which was regarded as elevated because it was over 2.5%.

(2) On 14 March 2016, the applicant’s CDT test result was 1.9%, which was not elevated.

(3) All other biomarkers tested on both 9 and 14 March 2016 were not elevated.

7.  By a letter dated 7 April 2016, the respondent informed the applicant that the Civil Aviation Department (“CAD”) had been advised of the condition(s) rendering him unfit to function as a flight crew member under article 20 of the AN(HK)O and declared that his medical certificate was deemed to be suspended.

8.  Then, by another letter dated 18 April 2016, the respondent informed the applicant that his case had been assessed by CAD’s Approved Medical Assessors (“AMAs”) and that the suspension of his medical certificate would continue for the foreseeable future since he was unable to meet the International Civil Aviation Organisation (“ICAO”) standard for class one medical certificate (“Original Decision”). The AMAs who assessed the applicant’s case and made the Original Decision on behalf of the respondent were Dr H K Kong (“Dr Kong”) and Dr Horace Lee (“Dr Lee”). The former is one of CAD’s 2 Senior Medical and Health Officers (Aviation Medicine) while the latter is a medical doctor in CX’s employ and an AMA.

9.  Beginning from 27 April 2016, CX had suspended the applicant without pay.

10.  On 14 July 2016, the applicant appealed against the continued suspension of his medical certificate, i.e. the Original Decision (“Appeal”).

11.  This is a convenient point to explain how appeals are dealt with within the CAD prior to December 2017. In this regard, within the CAD, the Personnel Licensing Office (“PELO”) carries out and/or supervises the performance of the licensing functions. It forms part of the Flight Standards & Airworthiness Division (“FSAD”) of the CAD. The FSAD is led by the Assistant Director-General (Flight Standards) (“ADG(FS)”). There are 3 sections within the FSAD, namely (1) the PELO itself; (2) the Flight Standards Office (which is led by the Chief, Flight Standards (“C,FS”)); and (3) the Airworthiness Office (which is led by the Chief, Airworthiness Standards).

12.  The CAD, through the PELO, publishes a number of documents concerning procedures and standards that seek to comply with the ICAO Licensing Manual. The PELO publication that is relevant to this case is the Office Procedures Manual (“OPM”). The OPM is not a public document but an internal document within the CAD.

13.  The Appeal was initially handled in accordance with the procedures set out in Chapter 31 of the February 2014 version of the OPM (“2014 OPM”), more specifically, the extract entitled “2. Handling Request for Review on Medical Certification Matters” under Chapter 31 which provided, inter alia, that:

(1) a letter of appeal on medical certificate matters should be addressed to SMO(AM) (paragraph 2.3);

(2) SMO(AM) will carry out an initial investigation and submit a preliminary report to C,FS (paragraph 2.4);

(3) C,FS will set up a review panel comprising preferably at least the SMO(AM), one Government AMA and one non-Government AMA (paragraph 2.5);

(4) The review panel will make a final report to C,FA and advise if they have found any justifiable grounds for the appeal (paragraph 2.6); and

(5) The findings of the review panel must be endorsed by C,FS or ADG(FS) as determined by C,FS before the appellant will be advised in writing of the outcome of the appeal (paragraph 2.7).

14.  For the purpose of paragraph 2.5, it is CAD’s stated practice on an appeal relating to medical certification that the review panel would comprise, inter alia, 2 AMAs who have not been involved in the previous decisions in the case from which the appeal has arisen.

15.  The review panel originally constituted for the Appeal (“Original Review Panel”) comprised Dr Kong as the CAD’s representative and Dr Robert Cocks (“Dr Cocks”) and Dr Mandy Ho (“Dr Ho”), neither of whom were involved in previous decisions in the applicant’s case, as AMAs.

16.  In about late 2016 or early 2017, Dr Cocks recommended to Dr Kong that the suspension of the applicant’s medical certificate be lifted while Dr Ho was neutral. Dr Kong did not accept Dr Cocks’ recommendation. It is the applicant’s case that Dr Kong also tried to actively influenced Dr Ho. In about February 2017, Dr Cocks resigned from the Original Review Panel.

17.  In the meantime, CX had terminated the applicant’s employment on 13 January 2017. Fearing imminent dismissal by CX, the applicant had in about May 2016 applied for a medical certificate from Transport Canada Civil Aviation Medicine (“Transport Canada”) to allow him to obtain possible alternative employment as a commercial aircraft pilot in Canada.

18.  By a letter dated 28 February 2017, the applicant sent the CAD further medical reports and a letter dated 10 February 2017 from Transport Canada recommending that the applicant be considered fit for an unrestricted medical certificate allowing him to work as a commercial aircraft pilot in Canada.

19.  Further, by a letter dated 21 April 2017, Transport Canada sent to the CAD medical information concerning the applicant’s application for a medical certificate from Transport Canada.

20.  Following Dr Cocks’ resignation from the Original Review Panel on 8 February 2017, the CAD sought legal advice from the Department of Justice in order to ensure that the review mechanism was fair and appropriate.

21.  In about mid July 2017, the CAD set up a reconstituted review panel (“New Review Panel”) to review the applicant’s case. Despite the applicant’s objection through his solicitors’ letter dated 27 July 2017 based on the CAD’s stated practice (see [14] above) and principles of natural justice and procedural fairness, the New Review Panel comprised Dr Kong, Dr Lee, Dr Ho, Dr John Fowler, a medical doctor in CX’s employ and an AMA, and Dr Wong Yee Him, a consultant psychiatrist.

22.  In the meantime, subsequent to the constitution of the New Review Panel and during the currency of the Appeal, in December 2017, the respondent revised and replaced Chapter 31 of the 2014 OPM with Chapter 31 of the 2017 version of the OPM (“2017 OPM”).

23.  Insofar as it is material, under Chapter 31 of the 2017 OPM, the applicant may object to the preliminary review of the case by SMO(AM) and to the appointment to the review panel an AMA who had been involved in the original decision of the case under review (paragraph 2.7). In this connection, it is worthy of note that after the New Review Panel was set up in July 2017, the applicant did through his solicitors object to the involvement of Dr Kong and Dr Lee in the New Review Panel but to no avail. However, such objection was made on the strength of the CAD’s practice as stated in [14] above and principles of natural justice, not Chapter 31 of either version of the OPM.

24.  In addition, the 2014 OPM expressly required the C,FS and/or the ADG(F,S) to indorse the findings of the review panel. Such requirement is deleted in the 2017 OPM. Instead, paragraph 2.10 of the 2017 OPM simply requires the C,FS and/or the ADG(F,S) to be kept informed of the review application on a regular basis and in writing. It is the applicant’s case that the new rule left Dr Kong in charge of the entire review process from beginning to end.

25.  It is the applicant’s evidence that he had not been informed that the Appeal was initially handled in accordance with the procedures prescribed in Chapter 31 of the 2014 OPM. Nor had he been advised of the replacement of Chapter 31 of the 2014 OPM by Chapter 31 of the 2017 OPM or the adoption of the 2017 OPM in the determination of the Appeal. In short, the applicant says that he was not made aware of the existence, content or application of these rules in his case until they were disclosed in Dr Kong’s affidavit filed on 25 October 2018.

26.  Coming back to the chronology, by letter dated 23 November 2017, the CAD informed the applicant’s solicitors that the New Review Panel had come to the view that the applicant’s test result on 9 March 2016 supported the conclusion that he had a relapse.

27.  By letter dated 2 March 2018, the applicant’s solicitors provided the CAD with the applicant’s response and a supplementary report from Dr Salah E Breidi, a toxicologist, supporting the applicant’s reading of the 2.7% CDT test result on 9 March 2016 to be abnormal or a “false-positive” and expressing the opinion that the more direct and negative indicators of excessive consumption of alcohol could not be ignored.

28.  By letter dated 25 April 2018, the respondent informed the applicant’s solicitors of the Review Decision, which was that the New Review Panel held the view that there was no new information to be considered and that the respondent’s initial decision to suspend the applicant’s medical certificate would maintain.

29.  The cumulative effect of the Original Decision and the Review Decision was to render the applicant unable to perform his licensed functions as a commercial pilot in Hong Kong, thereby leading to the termination of his employment with CX.

Proposed grounds for judicial review

30.  Against the abovementioned background, it was originally the applicant’s case that the Review Decision is reviewable by the court on the following 4 grounds:

(1) that the respondent was actually prejudiced against him or alternatively influenced by partiality or prejudice against him in making such decision (“Actual Bias Ground”);

(2) that the New Review Panel (on behalf of the respondent) was apparently biased against him by reason of the appointment per se of Dr Kong and Dr Lee to it as AMAs (“Apparent Bias Ground”);

(3) that the decision was Wednesbury unreasonable (“Unreasonable Ground”); and

(4) that the decision was illegal as the New Review Panel had fettered its own discretion (“Illegality Ground”).

31.  After the parties filed their respective written submissions, the respondent accepts that leave for judicial review can be granted in respect of Apparent Bias Ground. Meanwhile, the applicant has confirmed by the deletion of paragraphs 76 to 85 of the existing Form 86 that he will not pursue the Unreasonableness and Illegality Grounds. That is to say, on the question of leave, of the 4 original grounds, only leave for the Actual Bias Ground remains contentious.

32.  However, the applicant has, by paragraph 75A of the proposed Amended Form 86, articulated a new complaint about the procedure by which the Appeal was conducted which, he says, was “fundamentally unfair and in breach of natural justice” (“Natural Justice Ground”) based on the points identified as supporting the Apparent Bias Ground.

33.  It is the respondent’s position that no such new independent ground of challenge is currently pleaded in the existing Form 86 and that if and when the applicant makes a proper application to amend his Form 86, the court may deal with any such application at that stage, but not now.

Discussion

34.  This court can grant leave for judicial review only in respect of certain grounds and refuse leave on others: see e.g. B v Torture Claims Appeal Board [2015] 1 HKLRD 681, [7].

35.  In order for leave for judicial review to be granted, the applicant must demonstrate that he has a reasonably arguable case which enjoys realistic prospects of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR at [15]).

Is the Actual Bias Ground reasonably arguable?

36.  Mr Robert Whitehead SC (leading Mr Thomas Lee and Mr Justin Ismail), counsel for the applicant, cites a number of UK authorities including In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 at [38] that “actual bias” has been found, in the context of judicial decisions, “(1) where a judge has been influenced by partiality or prejudice in reaching his decisions; and (2) where it has been demonstrated that the judge is actually prejudiced in favour or against a party.”

37.  On the other hand, Ms Catrina Lam, counsel for the respondent, contends in her written submission, that there are potentially 2 types of cases of actual bias namely:

(1) first, where the decision-maker has a direct pecuniary, proprietary or personal interest in the outcome of the case; or

(2) second, where the decision-maker is shown to have been directly influenced by a fixed predisposition or predilection for reasons unconnected with the merits of the case and involving a closed mind which is not susceptible to any reasonable persuasion.

See Jackson v Thompsons Solicitors (A firm) [2015] EWHC 218 at §14.

38.  In response, Mr Whitehead counters that it would not be right to think that judicial review for a decision said to have been tainted by actual bias is limited to 2 rigid narrow categories. The better overall approach is to view the various tests of bias as ranging along a spectrum with direct proof of actual bias at one end and a reasonable suspicion that bias might have infected the decision at the other end. See De Smith’s Judicial Review (8^th Ed) at paragraphs 10-013 and 10-014.

39.  Counsel also refers to, and relies on, Bokhary PJ’s remark in Hebei Import & Export Corporation v Polytek Engineering Co. Ltd (1999) 2 HKCFAR 111 at [34]:

“In a context like the present, however, I think the courts cannot avoid the question of whether or not there was actual bias. They must decide the matter upon the answer to that question, thorny as such a question can be. I do not think that this is asking too much. After all, where the appearance of bias is strong enough, it can lead to an inference that actual bias existed.” (emphasis added)

40.  Hebei was followed in Granton Natural Resources Co Ltd v Armco Metals International Ltd [2012] HKCFI 1938 at [21] that “Bias can exist in different forms. In some cases, the line between apparent and actual bias could not readily be drawn. It is a matter of degree.”

41.  At the hearing, Ms Lam clarifies that the respondent is not contending that the finding of actual bias should be limited to two rigid narrow categories. She refers to In re Medicaments and Related Classes of Goods (No 2), supra, as stating a two-limb test, where if actual bias is not established, personal impartiality of a judge is presumed. The court will then go on to embark upon an objective assessment as to whether a fair-minded observer would conclude that there is a real possibility that the decision-maker was biased. Therefore, actual bias is subjective, whereas apparent bias is objective. She argues that such two-limb test is contrary to the test as two alternatives as pleaded by the applicant.

42.  On this basis, Ms Lam goes on to contend that the comment made by Bokhary PJ in Hebei Import & Export Corporation that apparent bias can be used to infer actual bias cannot be right, and the test for actual and apparent bias was not something that was canvassed, or an issue that was raised, before the court in that case. Even if apparent bias can lead to an inference of actual bias, this would be extremely rare and it would take an exceptional case for such an inference to arise.

43.  Counsel further suggests that the comment made by the court in Granton Natural Resources Co Ltd was to read down Bokhary PJ’s comment in Hebei Import & Export Corporation to emphasise that its effect cannot be too wide in the context of enforcement of arbitration awards.

44.  The above is of course just a skeletal summary of counsel’s submission on the Actual Bias Ground which, I believe, is adequate for the purpose of granting or refusing leave. The impression that I get from the submission before me is that there is still room for argument on the test for finding actual bias or the situations in which such a finding can be made and whether the facts of this case would support such a finding.

45.  Hence, notwithstanding Ms Lam’s able assistance for which I am grateful, I shall grant leave for judicial review on the Actual Bias Ground.

Was the Review Decision made in breach of natural justice?

46.  The proper approach to natural justice and procedural irregularity in the context of judicial review is well settled. In Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, Deputy High Court Judge Cheung (as his Lordship then was) had this to say:

“59. In my judgment, the position is as follows. Faced with a complaint based on non-disclosure of documents or material, the Court’s task in a judicial review is, first, to determine whether as a matter of fairness and natural justice, the documents or material ought to have been disclosed to the applicant by the decision-making body so as to afford the applicant an opportunity to respond to the documents or material. At this first stage, it is not necessary for the applicant to establish prejudice as a ground of judicial review: Boddington v British Transport Police [1999] 2 AC 143 at 174D-E (cited with approval in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at page 663 paragraph 40).

60. Secondly, if the Court comes up with an affirmative answer to the first question, it should proceed to the second stage of the matter by considering whether to exercise its discretion to quash the decision of the decision-making body below or grant some other appropriate relief, if any. At this second stage, the fact that there has been (ex hypothesi) a breach of procedural fairness is, of course, by itself a relevant and indeed a weighty consideration to be taken into account. However, at this second stage, the absence of prejudice, if such is the case, is also a relevant factor to be taken into account: Boddington v British Transport Police [1999] 2 AC 143; and Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653. In fact, as is demonstrated by the actual decision in Leung Fuk Wah v Commissioner of Police, if the non-disclosure did not produce a substantial prejudice to the applicant whatsoever, it would seem that the discretion of the Court would most likely, if not inevitably, be exercised against the grant of any relief: See page 668 paragraph 76 of the judgment, where the Court of Appeal observed that:

“Judicial review being a discretionary remedy, if Mr Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.”

See also 吳文演 v 人事登記審裁處 [2014] 1 HKLRD 1188 at [62].

47.  Applying such principle to the present case, subject to leave being granted for the amendment of the Form 86, the applicant should also be allowed to proceed with the Natural Justice Ground.

48.  In so holding, I have not lost sight of the respondent’s complaint that the applicant has not raised any breach of natural justice and procedural irregularity in the existing Form 86. Although such complaint has been incorporated in paragraph 75A of the proposed amended Form 86, the summons for the Amendment Application was not issued until 29 November 2019, giving the respondent just 1 working day to respond with the intervention of the weekend. The court should not have to consider whether leave for judicial review should be granted on the Natural Justice Ground before an application for leave to amend the Form 86 is made and allowed.

AMENDMENT APPLICATION

49.  This conveniently takes us to the Amendment Application.

50.  The amendments sought by the applicant are:

(1) to state his reliance on the revision and replacement of Chapter 31 of the OPM without informing the applicant in support of the Actual Bias Ground and the Apparent Bias Ground; and

(2) to add the Natural Justice Ground on the basis of largely the same facts relied on in support of the Apparent Bias Ground.

51.  It is trite that the court should allow all such amendments as are necessary to enable the real questions between the parties to be decided provided that the other side will not suffer any prejudice that cannot be compensated by an appropriate order as to costs.

52.  Applying such principle, the applicant should be allowed to amend. The amendments are not at all extensive or complicated. Given that we are at the leave stage, the respondent would not suffered any prejudice if, apart from a proper order as to costs, leave is given to it to respond by filing further affidavit(s).

Disposition

53.  For the above reasons, I grant leave to the applicant to commence judicial review proceedings in respect of the Review Decision on the Actual Bias Ground, the Apparent Bias Ground and the Natural Justice Ground.

54.  I also allowed the Amendment and Further Evidence Applications. The respondent shall have leave to file and serve affidavit evidence on the amendments and the evidence in support thereof within 28 days from today. The applicant shall thereafter have 28 days to file and serve evidence in reply, if so advised.

55.  As for the Discovery and Oral Evidence Applications, both parties seem to proceed on the basis that they should be dealt after the court has determined the Leave Applicant. Now that the court has decided on the scope of the judicial review, to save time and costs, the Discovery and Oral Evidence Applications shall be disposed of on paper. For such purpose, (1) the applicant shall lodge with the court and serve on the respondent written submission in support of such applications within 14 days from today; (2) the respondent shall lodge with the court and serve on the applicant written submission in opposition within 14 days thereafter; (3) the applicant shall lodge with the court and serve on the respondent written submission in reply if so advised within 7 days thereafter. There shall be no further submission without leave.

56.  In the meantime, the parties shall have liberty to approach my clerk to fix a date for the substantive hearing of the application for judicial review.

57.  I reserve the question of costs.

58.  Last but not least, it remains for me to thank counsel for their able assistance.