FU HON CHIN v. DIRECTOR GENERAL OF CIVIL AVIATION

HCAL 377/2018

[2018] HKCFI 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 377 OF 2018

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BETWEEN

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DECISION

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision (“Decision”) of the Director General of Civil Aviation (“Director”) made on 26 June 2015 that the Applicant’s application for an Airport Restricted Area Permit (“ARA Permit”) to work in the Restricted Area of Hong Kong International Airport (“Restricted Area”) be refused pursuant to Section 8 of the Aviation Security Regulation, Cap 494A (“Regulation”).

2.  For reasons which I shall explain below, the proposed application for judicial review is, I consider, not reasonably arguable. Accordingly, the leave application stands to be dismissed.

BACKGROUND FACTS

3.  The Applicant is a Hong Kong permanent resident.  He has 6 previous criminal conviction records relating to dangerous drugs between 2005 and 2011, as follows:-

	Date of conviction	Offence	Sentence
(i)	12 January 2005	Possession of DD	Rehabilitation Centre
(ii)	10 September 2007	(a) Possession of DD	1 month’s imprisonment
		(b) Possession of pipe/equipment fit and intended for smoking, injecting or inhaling DD	1 month’s imprisonment to run concurrently with (a)
(iii)	10 September 2007	Possession of DD	2 weeks’ imprisonment to run concurrently with (ii)
(iv)	3 June 2009	Possession of DD	DATC
(v)	5 May 2011	Possession of DD	Probation Order for 18 months

4.  In or about June 2015, the Applicant obtained an employment with Dragon Soar Hong Kong Engineering Limited, a sub-contractor of Gammon Construction Ltd (“Gammon”), to work as an electrician on a construction site in the Restricted Area.

5.  On or about 23 June 2015, Gammon, on behalf of the Applicant, applied to the Airport Authority Hong Kong (“AAHK”) for an ARA Permit (“the Application”).  On the same day, AAHK notified the Director of the Application, and sent the Applicant’s personal data to, inter alia, the Commissioner of Police for the purpose of security vetting.

6.  On 24 June 2015, the Commissioner of Police gave a Vetting Report to the Director in respect of the Applicant, disclosing his previous criminal conviction records mentioned above.

7.  On or about 24 June 2015, the Applicant commenced working in the Restricted Area, having been issued a Visitor Pass for temporary access to the Restricted Area.

8.  By a letter dated 26 June 2015, the Director informed the Airport Authority Permit Office (the “Permit Office”) that he objected to the issuance of an ARA Permit to the Applicant on security grounds. By a separate letter also dated 26 June 2015, the Director informed AAHK that the objection to the Applicant being issued an ARA Permit had an “Objection Expiry Date” of 5 May 2021.  In that letter, it was also expressly mentioned that the “Objection Expiry Date” was classified as “confidential personal information” which should not be disclosed to any other party and was not to be used for operational purposes by the Permit Office.

9.  On 26 June 2015, the Permit Office informed Gammon that the Application was objected to on security reasons and thus no ARA Permit would be issued to the Applicant.

10.  On 27 June 2015, the Applicant was informed by his superior that AAHK would not allow him to work in the Restricted Area.  His employment was terminated immediately and he was required to return the Visitor Pass.  According to the Applicant, although he was not given any reason for the termination of his employment, he was convinced that the termination must have been due to his previous criminal convictions.

11.  On 2 October 2015, the Applicant applied, in HCAL 193/2015, for leave to apply for judicial review of the Decision on various grounds which it is not necessary to set out in this decision.  On 28 December 2015, the Applicant was granted legal aid to pursue his application in HCAL 193/2015, and Messrs Tang, Wong & Wong (“TWC”) were assigned to act for him.  Apparently, TWC advised the Applicant that he could lodge an administrative appeal against the Decision to the Director, and the Applicant decided to pursue the administrative appeal first.  On 29 April 2016, TWC applied to the court to withdraw the application in HCAL 193/2015, which was granted by Au J on 3 May 2016.

12.  In the meantime, the Applicant made Data Access Requests to the Director and AAHK, and received various documents relating to the Decision on 6 and 22 April 2016 respectively.  From those documents, it was clear that the Director objected to the issue of an ARA Permit to the Applicant because of his previous criminal convictions, and that the objection had an “Objection Expiry Date” of 5 May 2021 (ie 10 years from the date of the Applicant’s last conviction).  It also appears, from an internal minute M.7 of the Civil Aviation Department (“CAD”), that the objection to the grant of an ARA Permit to the Applicant was based on certain “Objection Criteria” under “Guideline (3)” which I shall further explain later in this decision.

13.  On 21 November 2016, the Applicant formally lodged an administrative appeal against the Decision to the Director.

14.  By a letter dated 7 July 2017 to TWC, the Director informed the Applicant that his appeal was rejected.  The letter did not give any reasons for rejecting the appeal.  It merely stated the following –

“We have reviewed Mr. Fu’s case, and have also sought legal advice on the case. After due consideration, we regret to inform you that the Director’s decisions to object Mr. Fu’s ARA Permit application, and the objection expiry date, remain unchanged.”

15.  On 7 March 2018, the Applicant commenced the present application for leave to apply for judicial review, having been granted legal aid to pursue this application on 27 September 2017.

16.  In the Form 86, the Applicant seeks to challenge 2 decisions of the Director, namely, (i) the Decision, and (ii) the decision on or about 7 July 2017 that the Applicant’s appeal, pursuant to section 2.5.3 of the ARA Permit Manual, against the Decision in respect of security vetting be rejected.  However, as stated in the Skeleton Arguments of Mr Ma (for the Applicant) dated 25 May 2018 and as confirmed by Mr Ma at the hearing on 7 June 2018, the Applicant would withdraw his challenge to the second decision.

17.  Three grounds of judicial review are advanced by the Applicant in support of his application for leave:-

(1)   indirect discrimination;

(2)   procedural unfairness; and

(3)   Wednesbury unreasonableness – fettering of discretion.

LEGAL REGIME RELATING TO GRANT OF ARA PERMIT

18.  Under Section 27 of the Aviation Security Ordinance, Cap 494 (the “Ordinance”):-

“The [Aviation Security Authority] shall … draw up an Aviation Security Programme to provide for the protection and safeguarding of aircraft including passengers and crew operating in and through Hong Kong, of the facilities of aerodromes serving international civil aviation and of the ground personnel and the general public within such aerodromes against interferences which constitute an offence under this Ordinance or any other law.”

19.  Section 6.1.24 in Part 6 of the Aviation Security Programme (“HKASP”) drawn up pursuant to Section 27 of the Ordinance provides that:-

“According to the Aviation Security Regulation, airport managers are required to furnish details of airport restricted area permit applicants for security vetting and the Director-General of Civil Aviation can raise security objections in cases where the applicant is considered to pose an unacceptable security risk.”

20.  The power of the Director to raise security objections to any person being granted an ARA Permit is given statutory underpinning by the Regulation.

21.  By Regulation 4, subject to certain exemptions under Regulation 5 which are not relevant for the present purposes, no person shall enter or remain in a restricted area of an airport, unless he has on his person a valid permit issued to him in respect of that restricted area or is being escorted by a permit holder who is authorized to escort persons into such area.

22.  Regulation 7(1)(c) provides that AAHK (being the “manager” referred to in that regulation for the present purposes) shall, in accordance with conditions approved by the Director, issue a permit to any person whose business requires his access, from time to time, to the airport restricted area.

23.  Regulation 8 further provides as follows:-

“(1) The manager shall, before issuing a permit under section 7(1), submit personal details of any person to whom he wishes to issue a permit to the Director, who shall determine whether or not there is any reason why the person is, for any reason relating to the security of the aerodrome, not fit to have access to an airport restricted area.

(2) Where the Director, after making appropriate inquiries, is of the opinion that there is no reason why the person is not fit to have access, the Director shall notify the manager who may, on being so notified, issue a permit to such person.

(3) Where the Director is of the opinion that the person should not have access immediately, the Director shall notify the manager of that fact and specify a period of time during which the person should not have access and, on being so notified, the manager shall defer issuing a permit for such period.”

24.  It can be seen immediately that:-

(1)   although AAHK is the issuing authority, it may not issue an ARA Permit to any person whom the Director considers not fit to have access to an airport restricted area; and

(2)   the Director may object to the issue of an ARA Permit to any person on the ground that he is not fit to have access to an airport restricted area for “security” reason.

25.  In exercising his power to object to the issue of an ARA Permit in any given case, the Director is guided by the provisions contained in the Standards and Recommended Practices (“SARPs”) as well as the Aviation Security Manual Doc 8973 - Restricted (“Aviation Security Manual”) promulgated by the International Civil Aviation Organisation, a specialized agency under the United Nations established pursuant to the Convention on International Civil Aviation (also known as the “Chicago Convention”).

26.  Section 4.2.4 of Annex 17 (Security) to the SARPs provides that –

“Each Contracting States shall ensure that background checks are conducted on persons other than passengers granted unescorted access to security restricted areas of the airport prior to granting access to security restricted areas”.

27.  In Chapter 1 of the Aviation Security Manual, the expression “background check” is defined to mean -

“[a] check of a person’s identity and previous experience, including where legally permissible, any criminal history, as part of the assessment of an individual’s suitability to implement a security control and/or for unescorted access to a security restricted area.”

28.  Paragraph 11.2.7.7 of the Aviation Security Manual further provides as follows:-

“A permit should not be issued if, during the performance of a background check, it is determined that the applicant was convicted of:

a) certain crimes, specifically possession or use of illicit drugs, trafficking in illicit drugs … In exceptional circumstances, the national authority may determine that the applicant has been fully rehabilitated and no long constitutes a risk”.

29.  CAD, and the Hong Kong Police Force, Immigration Department and Customs and Excise Department (collectively the “Controlling Authorities”) have formulated and agreed amongst themselves a set of “Objection Criteria” and “Objection Periods” for determining applications for the issue of ARA Permits.

30.  The Objection Criteria include whether an applicant has, within a certain period of time prior to the ARA Permit application, committed any offences relating to aviation security, dangerous drugs, violence, dishonesty or fraud, unlawful society and criminal damage, and the seriousness of the concerned offences.

31.  The Objection Periods stipulate, for each relevant offence, a specified period during which an objection to the grant of an ARA Permit to a person with a criminal conviction record for that offence would be maintained.  The applicable Objection Period is calculated from the date of that person’s last relevant conviction or sentence.

32.  According to Siu Yuet Yung, Senior Operations Officer of CAD:-

“While the Objection Criteria/Period are a set of guiding principles which the Director would generally follow because it is a policy made after collaboration with the Controlling Authorities and in line with Hong Kong’s international obligation under the Chicago Convention to perform background check, the legal criteria for the granting of ARA Permits remain to be ‘reasons relating to the security of aerodrome’ and ‘fit to have access to an [airport restricted area]’ under section 8 of the Regulation. When it comes to the handling of ARA Permit applications, normally, CAD will generally follow the Objection Criteria/Period during their first-tier vetting of applications. For ambiguous cases, CAD will seek clarifications from the Controlling Authorities. The Director has in the past exercised discretion to depart from the objection based on the applicable Objection Criteria/Periods in appeal cases, where the circumstances of those cases justified it, but has not yet seen a suitable case to exercise such discretion since the current set of Objection Criteria/Periods became applicable” (as from 1 June 2015).

See paragraph 28 of Mr Siu’s affirmation filed herein on 16 May 2018.

33.  The Objection Criterion and Objection Period relevant to the Applicant’s case are contained in “Guideline (3)”, under which an applicant with a conviction for “possession of dangerous drugs” or “possession of pipe / equipment fit and intended for smoking / injecting / inhaling dangerous drugs” and sentenced to imprisonment or probation order would generally not be granted an ARA Permit for a period of 10 years from the date of his conviction (see paragraph 27 of the said affirmation of Mr Siu).

34.  The Aviation Security Manual, HKASP and the Objection Criteria/Objection Periods are, I am told, restricted and confidential documents or information.

35.  As earlier mentioned, the Director made the Decision to object to the Applicant’s Application for an ARA Permit based on Guideline (3) on 26 June 2015, and the Decision was maintained on the Applicant’s appeal on 7 July 2017.

GROUND 1: INDIRECT DISCRIMINATION

36.  The Applicant’s complaint of discrimination has been formulated in an obscure or elliptical manner.  In the Form 86, at paragraph 64, it is stated that –

“The Security Vetting to the extent that it applies to X, an ARA Permit applicant with previous criminal convictions, imposes restriction against his right to equality under Art 25 BL and Arts 1 and 22 HKBOR because the Guidelines, as promulgated and adopted by the Director, is not published and available to public and further imposes prejudicial effect against ARA Permit applicant with previous criminal convictions which is disproportionate in nature.”

37.  In Mr Ma’s Skeleton Arguments for the Applicant, at paragraph 10, it is said that –

“The major complaint from the Applicant that underpins the 1^st ground of review is that the Director applied apparently general [policy] against all ARA Permit applicants, ie, all applicants shall be subject to, inter alia, the security vetting against their history of criminal conviction based on unpublished and undisclosed guidelines in particular Guideline (3) with the result that ARA Permit applicant who has previous conviction is subject to unjustified hardship and is therefore discriminatory in nature”.

38.  This complaint is further elaborated at paragraphs 13 to 14 of Mr Ma’s Skeleton Arguments, as follows –

“13 The hardship and/or detriment of the Applicant suffered as a result of that apparently neutral but undisclosed Guideline (3) is that he lose[s] his right to choose whether to take out the application and that he has so spent time and resources in launching and preparing the said ARA Permit application including attending vocational course organized by his then employer and the money paid for the outfit.

14 More importantly, had the contents of the vetting policy [been] available, he would have reconsidered his choice and would not have taken out the Permit application leading to the stigmatization arising out of the subsequent termination by his employer.”

39.  At the hearing on 7 June 2018, Mr Ma confirmed that the Applicant is not complaining that the applicable Objection Criterion/Objection Period under Guideline (3) unlawfully discriminate against someone in the Applicant’s position who has a relevant criminal conviction record because such person would generally not be granted an ARA Permit.  The Applicant’s complaint, rather, is that the Director’s policy of not disclosing the applicable Objection Criterion/Objection Period unlawfully discriminates against such a person because he would suffer the hardship or detriment referred to in paragraphs 13 and 14 of Mr Ma’s Skeleton Arguments quoted above.

40.  In my view, the Applicant’s complaint of discrimination is entirely misconceived.  The Director’s policy of non-disclosure of the Objection Criteria/Objection Periods applies equally to all ARA Permit applicants with or without criminal conviction record(s).  No question of differential treatment arises from the non-disclosure of the Objection Criteria/Objection Periods.  The sort of hardship or detriment referred to by the Applicant is the result of a combination of two factors: (i) the applicant has made an application for an ARA Permit, and (ii) the applicant has a relevant criminal conviction record.  Such hardship or detriment cannot be regarded as the consequence of any differential treatment being applied by the Director to such applicant (as compared to one who has no relevant criminal conviction record).

41.  I should add, for the sake of completeness, that I do not consider that the applicable Objection Criterion/Objection Period under Guideline (3) unlawfully discriminate against someone in the Applicant’s position who has a relevant criminal conviction record, because:-

(1)   the restriction or limitation imposed by the Objection Criterion/Objection Period under Guideline (3) pursues a legitimate aim, namely, airport security including the prevention of dangerous drugs being brought into an airport restricted area;

(2)   the restriction or limitation on persons with relevant criminal conviction records from being permitted to work unescorted in an airport restricted area is rationally connected to that legitimate aim;

(3)   the restriction or limitation is no more than is reasonably necessary to accomplish that legitimate aim, and certainly cannot be said to be manifestly without reasonable foundation; and

(4)   (assuming, without deciding, that a four-step analysis should be applied in a discrimination complaint) having regard to the high importance of airport security and the fact that the restriction or limitation has generally an expiry date, the pursuit of the public or societal interests does not result in an unacceptably harsh burden on a person with a relevant criminal conviction record, ie, being denied the opportunity to work in an airport restricted area for a definite period of time.

GROUND 2: PROCEDURAL UNFAIRNESS

42.  Under this ground, the Applicant complains that the Director’s decision is unlawful in that he did not disclose Guideline (3) to the Applicant for comments or representations and further the Applicant was not provided with any opportunity to make representations or submissions prior to any adverse decision being made against him (see paragraph 112 of the Form 86).

43.  It is true that at the time of the original application for the ARA Permit, the Applicant was not informed of the contents of Guideline (3) and thus he could not make representations or submissions to the Director as to why they should not be applied to deny his Application. However, Mr Ma fairly accepts or concedes that, by the time of the appeal in November 2016, the Applicant was fully aware of the applicable Objection Criterion/Objection Period under Guideline (3) because he had received various internal documents of CAD, including redacted versions of M.7 and two letters from CAD to AAHK/Airport Authority Permit Office both dated 26 June 2015 in April 2016.  Although those documents do not set out the text of Guideline (3) and may, arguably, be read in a number of different ways, in view of Mr Ma’s explicit concession, I shall proceed on the basis that the Applicant was fully aware of the applicable Objection Criterion/Objection Period under Guideline (3) at the time of the appeal.  As it was, the Applicant (through TWC) made detailed submissions to the Director as to why his appeal against the Decision should be allowed notwithstanding his previous convictions.

44.  Generally speaking, when considering a challenge to an administrative decision based on the ground of procedural unfairness, the court should take a holistic view of the situation.  As stated by Lord Mustill in R v Home Secretary, Ex parte Doody [1994] 1 AC 531, at 560E-F, “[t]he principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects”.  In the context of the present case, one should consider the fairness of the whole process (including both the original application and the appeal), instead of at some particular stage of the process.  Whatever may be said about the unfairness of the process arising from the non-disclosure of the applicable Objection Criterion/Objection Period at the time of the original application, such unfairness had, in my view, been cured by the time of the appeal.  There was, at that stage, a sufficient disclosure of Guideline (3) and the materials relied upon by the Director in reaching the Decision to enable the Applicant to make “meaningful and focused representations” in support of his appeal (see Asia Television Ltd v Communications Authority (No 2) [2013] 3 HKLRD 618, at paragraphs 61, 63 and 64 per Kwan JA).

GROUND 3: WEDNESBURY UNREASONABLENESS – FETTERING OF DISCRETION

45.  This ground can be dealt with shortly.  The Applicant complains that the Director, by a blanket application of Guideline (3) to reject the Application, has failed to assess his case individually (see paragraph 120 of the Form 86).  There is, however, no evidence to indicate that the Director has failed to consider the Applicant’s case on its own merits, or has fettered his discretion by a rigid application of Guideline (3). Furthermore, having regard to the fact that the Applicant was a repeated offender in respect of dangerous drugs offences with a string of 6 convictions occurring within a period of 6 years, the last of which was only 4 years prior to the date of the Application, the decision not to grant an ARA Permit to the Applicant in the present case cannot, in my view, be said to be unreasonable in the Wednesbury sense.  I would add that there is also no point in remitting the matter to the Director for fresh consideration because Mr Ma has made it clear that the Applicant no longer intends to apply for an ARA Permit.

46.  In all, I consider that all three proposed grounds of judicial review relied upon by the Applicant are not reasonably arguable.

DISPOSITION

47.  For the foregoing reasons, the present application for leave to apply for judicial review is dismissed, with no order as to costs.