RE BU

CACV 103/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 103 OF 2012

(ON APPEAL FROM HCMP 590/2012)

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J U D G M E N T

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Hon Cheung CJHC:

Facts

1.  This is an appeal from the order dated 15 March 2012 of Lam J refusing to grant an order for non‑disclosure of the applicant’s identity in his intended application for leave to apply for judicial review.

2.  The applicant was born in Pakistan.  He came to Hong Kong in 2000 with a forged passport.  He claims that he fled his home country because he had a real and substantial fear of being tortured and killed by a certain person “and/or his associates or family members, with the consent and/or acquiescence of the police and/or state”.  He says that his family in Pakistan continues to receive threats against themselves and against him and they live in fear of being attacked.  He also claims that the lawyer representing his father as well as his uncle have both been murdered.  The applicant is a torture claimant in Hong Kong and his case, like many others, is still pending verification.

3.  In 2004, the applicant was convicted of two offences and was sentenced to a term of imprisonment.  On 24 May 2004, the Secretary for Security made a deportation order against him for life under section 20(1)(a) of the Immigration Ordinance (Cap 115).  However, because of his outstanding torture claim, the applicant has been remaining in Hong Kong despite the making of the deportation order.

4.  In July 2010, the applicant married a Hong Kong permanent resident and made an application for a dependant visa so that he could live here with his wife.  The Director of Immigration refused to countenance the application by reason of the deportation order, but indicated that the matter might be reconsidered should that order be suspended or rescinded.  The applicant therefore applied to the Secretary for Security for rescission of the deportation order.  On 16 December 2011, the Secretary decided, without providing reasons, not to rescind the deportation order.

5.  In the intended application for judicial review, the applicant seeks to challenge the Secretary’s decision on the basis of his failure to give reasons.

6.  In the draft Form 86, the applicant mentions the fact that he is a torture claimant and explains why he had to flee his home country.  By an ex parte application supported by an affirmation and a draft order, the applicant asked for what is commonly known as an anonymity order, that is, an order for non‑disclosure of his identity in the intended application for leave to apply for judicial review.  After setting out his case and his fear of torture, the applicant stated in his affirmation that it was his belief and fear that his safety and that of his family, both in Hong Kong and in Pakistan, would be endangered in the event of deportation, if the Pakistani Government were to learn of the allegations and matters he raised in the draft Form 86.

Lam J’s decision

7.  On 15 March 2012, Lam J refused the application after an ex parte hearing.  In his reasons for decision dated 21 March 2012, the judge explained that the fact that the applicant is a torture claimant and the reasons why he had to flee his home country have no bearing on the intended judicial review as the grounds for seeking relief have nothing to do with his torture claim.  He did not accept a submission made on behalf of the applicant that the mere fact that the applicant is a torture claimant would warrant the making of an anonymity order.  He also rejected the argument that because the media could inspect the Form 86 and report the fact that he is a torture claimant, that would bring upon him a risk of harm in case of deportation.  The judge examined some recent UK authorities and observed that it is no longer the case that all asylum seekers as a class are entitled to an anonymity order in the court and he held that the making of such an order has to be justified : R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, para 6. He noted that various rights, including the right of the press to freedom of expression, are in play when an anonymity order is applied for and the court has to examine the substantive reasons and evidence in support of the application. After examining the facts and allegations made by the applicant in the intended judicial review, the court concluded that the making of the order was not warranted.

Arguments

8.  In this appeal, Mr Philip Dykes SC (Mr P Y Lo with him), advanced several arguments on behalf of the applicant.  First, it was said that the judge’s order represented a departure from the practice that had hitherto provided for anonymisation in legal proceedings in Hong Kong of the identity of a torture claimant who can present a prima facie case of risk of harm to himself or members of his family if particulars of his identity were disclosed.  As a consequence, the court in future would have to examine the substantive reasons and evidence in support of the application on a case‑by‑case basis.  Matters of judicial policy, resource allocation and workload are involved, counsel submitted, making it a matter possibly requiring a practice direction.  Secondly, Mr Dykes argued that in the present case, in order to comply with the obligations imposed on making an application for leave to apply for judicial review, the applicant would need to include in the Form 86 an explanation accounting for the otherwise inexplicable delay in the Director executing the deportation order.  That would mean disclosing that he is a person seeking protection as a torture claimant. Similarly, if leave to apply for judicial review were granted, the putative respondent could be expected to explain inaction by reference to the fact of the claim and its nature.  This might expose the applicant and his family to the risk of harm, which an anonymity order could prevent.

9.  Counsel therefore argued that in those circumstances, the judge should have acceded to the application for an anonymity order and made an order that would last until at least after the determination of leave to apply for judicial review which, if successful, would entail the involvement of the Secretary who might have views on the need for anonymity or the involvement of a media organization which might seek to have the anonymity order set aside in the interests of press reporting.

General principles

10.  The starting point and general rule, both in theory and in practice, is that judicial proceedings are held in public and the parties are named in judgments.  Article 10 of the Hong Kong Bill of Rights, which is based on article 14.1 of the International Covenant on Civil and Political Rights (“ICCPR”), specifically provides that everyone shall be entitled to “a fair and public hearing” by a competent, independent and impartial tribunal established by law.  The article goes on to set out the circumstances under which the press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society; or when the interest of the private lives of the parties so requires; or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

11.  In practice, the matter is governed by Practice Directions 25.1 and 25.2.  When proceedings are held in chambers not open to the public, the press and the public are excluded from attending.  Reporting of the proceedings, including the naming of the parties involved, is also restricted.

12.  Secondly, the court’s jurisdiction to make an anonymity order to restrict publication of a person named in its proceedings is not in doubt : R (Kambadzi), para 6 per Lord Hope of Craighead DPSC.  It overlaps with, but is not entirely the same as, the court’s power to hear proceedings in chambers not open to the public (with its entailing restriction on reporting) described in the preceding paragraph.  Indeed an anonymity order is very often required in a piece of litigation where the trial or other hearings will be held in open court or in chambers open to the public with no restriction on reporting (save for the anonymity order).

13.  In a typical case concerning an asylum seeker or a torture claimant, where he or his family are in peril of their lives or safety, the anonymity order helps to secure the right to life and the freedom from torture, cruelty or inhuman conduct guaranteed under articles 2 and 3 of the Hong Kong Bill of Rights (and the corresponding provisions under the ICCPR), the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment 1984 and general public international law : R (Kambadzi), para 6; In re Guardian News and Media Ltd [2010] 2 AC 697, para 26.

14.  Depending on the facts, a case may also involve a child or vulnerable person, or personal information about the lives of those under 18 and their welfare may be injured if such details are revealed and their names are known.  Or there may be highly personal evidence in the case that should remain confidential.  These are additional reasons for the making of an anonymity order.  See Presidential Guidance Note No 2 of 2011 : Anonymity Directions in the First‑Tier Tribunal (Immigration and Asylum Chambers) issued by the President of the First‑Tier Tribunal Immigration and Asylum Chambers in the United Kingdom on 14 February 2011 (revised on 7 July 2011), para 5.

15.  Thirdly, it has to be appreciated, however, that when such an order is made and the principle of open justice is thereby compromised, third parties’ (particularly the media’s) right to freedom of expression guaranteed under article 16 of the Hong Kong Bill of Rights, which includes freedom to seek, receive and impart information, is necessarily curtailed.  The right to freedom of expression is not absolute.  It may be restricted for respect of the rights or reputation of others or for the protection of national security or of public order, or of public health or morals : article 16(3).

16.  Fourthly, different rights are therefore in play.  As a very general statement, the right to life and the freedom from torture [etc] should, of course, take precedence over the right to freedom of expression and the freedom of the press.  As Lord Rodger of Earlsferry JSC observed in In re Guardian News, para 27, “a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed”.  But that is so only when stated in very general terms.  Much will depend on the circumstances of each case.  A remote risk of danger to life or safety may well not be sufficient to justify the curtailment of the freedom of the press to name the parties involved in court proceedings held publicly in Hong Kong.  As Lord Hope pointed out in R (Kambadzi), para 6, it is no longer the case that all asylum seekers as a class are entitled to anonymity in our courts.  The making of such an order has to be justified.

17.  Finally, each application must therefore be examined on its own facts and issues.  But the position that the asylum seeker or torture claimant himself adopts will always be an important factor. He is likely to be in a good position to assess the risks and to say whether or not he needs anonymity for his protection.  But his view is not binding on the court or final.  Cf R (Kambadzi), para 7.

In practice

18.  In proceedings directly involving allegations and issues of persecution or torture [etc], the court documents filed will no doubt contain details of the claim of persecution or torture.  In most if not all of these cases, an anonymity order would be applied for.  The applicant has to put in sufficient materials to satisfy the court that such an order should be made.  It is up to the court to decide whether the matter can be disposed of on paper or whether an oral hearing is required.

19.  As for interim measures to preserve anonymity pending the making (or refusal) of the order, if time permits, the applicant may apply for an anonymity order in relation to his intended proceedings first before formally issuing his proceedings.  In such a case, the court would either decide the question of anonymity before the commencement of proceedings, or if it does not, appropriate directions would be given to preserve anonymity pending its decision.

20.  However, if time does not allow and the applicant has to commence proceedings immediately, he should apply for an anonymity order at the same time as commencement of proceedings and have his application for an anonymity order placed immediately before the court.  Subject to what the court may otherwise direct, he may confidently expect that the court would either deal with his application there and then (if circumstances allow), or more likely, grant him an interim anonymity order pending the final disposal of his application (either on paper or at an oral hearing) – which may or may not coincide with the determination of the application for leave to apply for judicial review.  Either way, the interim position is secured.

21.  However, where as here, the proceedings or intended proceedings do not raise directly the issue of persecution or torture [etc], but the applicant considers that it is reasonably necessary to reveal the same in the court papers filed or to be filed (either by his side or by his intended opponent), he will first have to persuade the court of the same before his application for an anonymity order can even get off the ground.  If the allegations of persecution or torture [etc] can be safely omitted from the proceedings, there is simply no basis for the making of an anonymity order.

22.  Turning to the substantive justification for an anonymity order, the applicant’s fear of risk to life or safety, whether of himself or of others, should be clearly articulated.  For instance, is he alleging that if his identity were to be revealed in the proceedings, his safety in Hong Kong would be put at risk?  If the answer is “yes”, he must explain how and why his safety here would be endangered by the disclosure. Or he may be saying that if his identity were to be revealed and his intended proceedings for asylum etc were to fail, his life or safety would be put in jeopardy in the event of deportation.  In that case, he must explain why.  Cf R (Kambadzi), para 122.  Likewise, if he says that he fears for the safety of his family members back home, he must explain why the disclosure of his identity would jeopardise the situation at home.  These are just examples.  Every case would turn on its own facts.  It is for the judge to decide whether an anonymity order is justified.  In this regard, one should, however, remember Lord Hope’s observation that the applicant’s own assessment of the risks he faces must carry significant weight.

23.  There is no standard wording for an anonymity order.  But in most cases, the following wording, adapted from that suggested in the Presidential Guidance mentioned above, would be appropriate:

“The applicant be granted anonymity throughout these proceedings, unless and until a court orders otherwise, and be referred to as [initials of applicant]. No report of these proceedings shall directly or indirectly identify him/her or any member of their family. This order applies to all parties including interested parties and to the public including the media. Failure to comply with this order could lead to a contempt of court.”

24.  Such an order does not, by itself, exclude members of the public or the press from attending a hearing, which is a separate matter to be considered and decided if necessary.

Present case

25.  Turning to the facts of the present case, the judge took the view that there is no reason why it is necessary for the applicant to mention his status as torture claimant and his allegations of torture in the Form 86.  Nor could he accept the submission below that the media would be keen to report the applicant’s status as torture claimant when the case has nothing to do with his torture claim.  Rather, the judge viewed the applicant’s intended application for judicial review as a claim by a foreigner seeking to overturn a refusal to rescind a deportation order based on his relationship with a Hong Kong permanent resident and what the applicant considered to be a defect in the letter of refusal on account of lack of reasons.  The judge found it difficult to see how the mounting of such an application for judicial review, even if it is reported in his home country, would increase the risk of harm to the applicant in case of his deportation.  In any event, the judge took the view that in the absence of some credible evidence, the court should be slow to infer that a foreign state would inflict harm on one of her subjects simply because he had advanced an allegation of torture elsewhere (which ex hypothesi would have been rejected by our court if he was to be deported). There must be some rational basis for suggesting that the conduct of the case without an anonymity order (irrespective of the result) would eventually cause harm to an applicant (or to his family) before the court can make an anonymity order.  The judge observed that if this applicant has a genuine concern about his or his family’s safety, both in Hong Kong and in his home country, he may simply instruct his lawyers to delete the relevant allegations from the Form 86.

26.  I can understand the judge’s sentiments.  The details given by the applicant in the documents filed in support of his case on torture were scanty.  However, his torture claim has been pending before the authorities since 2004, and there is no present suggestion that it is a claim totally devoid of merit.  At the hearing of the appeal, we were given to understand that there are many other materials that the applicant relies on in support of his torture claim which have not been placed before the judge.

27.  As regards the necessity to refer to the allegations of torture and to the making of a torture claim in Hong Kong, it would appear that the fact that the applicant is a torture claimant in Hong Kong and that that was why he has been allowed to remain in Hong Kong despite the making of the deportation order in 2004 is something that forms part of the relevant background of the applicant’s case.  In all likelihood, it would come out in the intended proceedings.  At least at this stage, without knowing the position of the Secretary, it would be difficult to rule out the possibility.

28.  All things considered, I take the view that there is a basis for disturbing the judge’s exercise of discretion in refusing to make the anonymity order.  In my view, an anonymity order should be made which shall last until the determination of the application for leave to apply for judicial review in the intended proceedings, whereupon the situation can be reviewed with input from the Secretary (and/or the media) where appropriate.

Outcome

29.  On this narrow basis, I would allow the appeal to the extent indicated.  I would reserve the costs here and below to the intended judicial review proceedings, save that there shall be legal aid taxation of the applicant’s own costs.  I would further order that this appeal be anonymised.

Hon Stock VP:

30.  I respectfully agree, for the reasons provided by the Chief Judge, that the appeal should be allowed and I agree also with the orders which he proposes to make.

31.  In judicial review cases in which an anonymity order is sought on the basis of a suggested fear of harm to the applicant or to members of his family were his identity to be revealed, the guiding question for a court called upon to resolve such an application for anonymity is whether the interests of justice are shown so to require; a proposition which is simple to state but may be difficult to resolve in a particular case. In determining what the interests of justice require, the court should bear in mind the relevant competing components of that interest in such cases.

32.  On the one hand is the vital importance to the rule of law of open justice and, in this regard, I am attracted by the argument of counsel in In Re Guardian (para 13 above) at p 701, that publicity is a powerful deterrent to abuse of power; that it deters perjury; that open proceedings are a discipline upon the conduct of tribunals ( and, it might be added, upon the conduct of advocates) and that it promotes public confidence in the impartiality, efficiency and fairness of the system.  It is not only a possible deterrence to the making of false assertions but may lead to the disclosure of relevant evidence supportive of a particular case.  Almost a century ago, it was described by Lord Shaw in Scott v Scott [1913] AC 417 at 473 as “a sound and very sacred part of the administration of justice.”  And so it remains.

33.  Yet the basis upon which the courts are occasionally compelled to retreat from wholly open justice is the same consideration, namely, the due administration of justice; for if it be shown that disclosure of information carries with it a substantial risk to the administration of justice, the court is likely to exercise its discretion to preserve confidentiality to the extent necessary.  There are many circumstances which have over time been identified as permitting of or indeed requiring confidentiality – for example, to protect the interests of children or patients; where there is shown a need to preserve secret technical processes; where publicity would defeat the object of the hearing ( see “The Law of Human Rights” Clayton and Tomlinson 2d ed., Chapter 11) ;  blackmail cases, since disclosure of the identity of a witness is likely to prejudice the administration of justice by discouraging victims from coming forward (ibid., p 1403); and where it is shown that a witness or party is at risk of harm from third parties.  Quite apart from the reluctance of a court to lend itself, by sanctioning publicity, to the risk of such harm, the failure to protect a party in an instant case from the risk of harm jeopardises the administration of justice in that case by deterring that party from pursuing the case either at all or freely and in other cases by deterring putative parties from pursuing their rights in the courts.

34.  Given the importance of open justice and the ease with which allegations may be made, there is a burden on an applicant to justify the making of an anonymity order.  It is not justified by the mere ipse dixit of the applicant.  Whilst a court is not, in a setting such as that of the present case, required to determine the merits of the torture claim, some apparently realistic substratum of fact should be produced and, in addition, it must be shown that the fact of the torture claim is somehow relevant in the sense that the nature of and facts underlying the proceedings render it reasonably necessary to mention the fact or nature of the torture claim.

35.  There is little harm in the context of judicial review proceedings in making such an order ex parte prior to the leave hearing but once the leave application is determined, the matter should be re-examined.  Those acting for the respondent, if leave be granted, may be tempted to take a neutral stance but it is always open to the judge to seek the respondent’s active assistance nonetheless.

Hon Cheung CJHC:

36.  The court makes the orders indicated in paragraphs 28 and 29 above.