LAW MEI MEI v. THE AIRPORT AUTHORITY HONG KONG AND ANOTHER

HCAL 117/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 117 OF 2016

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D E C I S I O N

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INTRODUCTION

1.  I have before me an application by the applicant seeking leave to (i) amend her Form 86, and (ii) apply for judicial review of the decisions of the two putative respondents which, in simple terms, allowed a cabin bag to go through security screening at the Hong Kong International Airport not in the presence of the passenger concerned.

2.  Two grounds have been raised by the applicant in her draft amended Form 86 in support of the intended application for judicial review, namely:-

(1) illegality, in that the putative respondents are said to have misapplied or misinterpreted the relevant provisions of the applicable Hong Kong Aviation Security Programme (“HKASP”); and

(2) procedural impropriety, in that the putative respondents are said to have failed to provide any reasons for departing from the HKASP.

3.  On behalf of the putative respondents, Mr Russell Coleman SC submits that leave to apply for judicial review, together with the application for leave to amend the Form 86, should be rejected on the following grounds:

(1) the intended challenge is academic;

(2) the challenged decisions are not amenable to judicial review;

(3) the applicant lacks standing; and

(4) the challenge lacks substantive merit.

4.  The decisions under challenge were made between 27 and 28 March 2016. Only the 1^st putative respondent was named in the original Form 86 dated 24 June 2016.  In the draft amended Form 86, the 2^nd putative respondent is named as an additional respondent, and it is alleged that the 1^st and 2^nd respondents each made a decision to allow the cabin bag to go through security screening not in the presence of the passenger concerned.  It follows that an extension of time would be required to enable the intended application for leave to apply for judicial review against the decision of the 2^nd putative respondent to proceed.

The merits of the intended application for judicial review

5.  The basic facts giving rise to the intended application for judicial review are well known to the parties, and I shall not summarise them in the present decision dealing essentially only with the question of leave to apply for judicial review.

6.  I shall first look at the substance or merits of the decisions under challenge.  Ms Gladys Li SC (on behalf of the applicant) contends that the relevant and applicable requirements to be observed by the putative respondents as regards the security screening of cabin baggage are contained in the HKASP, in particular paragraphs 6.2.6 to 6.2.12 thereof under the sub-heading “Screening of Passengers and Cabin Baggage”.  She relies, in particular, on paragraph 6.2.10 which states as follows:-

“All screening of cabin baggage shall be conducted in the presence of the passenger”.

7.  Ms Li argues that the requirement that the screening shall be conducted in the presence of the passenger applies not only to what is called a “secondary” screening, but also to what may be described as the “primary” screening.  In support of this argument, Ms Li relies on the plain and ordinary meaning of paragraph 6.2.10. If paragraph 6.2.10 relates only to the “secondary” screening, it would have been easy to say so; instead it refers to “All screening”.

8.  She also draws support for her argument from paragraph 6.2.9, which provides that “A reasoned secondary screening of a passenger and his cabin baggage shall also be conducted if, in the judgment of the screener, the passenger displays undue nervousness or arrogance or who appears to evade screening, conceal an item or in any other way suggests that he may have a restricted article”.  It is said that the presence of the passenger is necessary even prior to any secondary screening that might be conducted, because the screener needs the presence of the passenger to ascertain if he/she displays the features listed in paragraph 6.2.9.

9.  On the other hand, Mr Coleman argues that the applicable policy document is the HKIA Airport Security Programme (“the HKIA‑ASP”), which he submits addresses with “more specificity and detail” the requirements of the HKASP and is legally a part of the HKASP.  Mr Coleman submits that in a case of prima facie conflict between the two documents, the provisions of the HKASP must “yield” to those of the HKIA-ASP.  Mr Coleman further argues that under the HKIA-ASP, the requirement to conduct screening of cabin baggage in the presence of the passenger concerned applies only to a secondary screening.

10.  This is not the appropriate time to conduct a detailed analysis of the merits of the respective arguments of the applicant and the putative respondents.  The test for granting leave to apply for judicial review is “reasonable arguability”. In my view, it is reasonably arguable that:-

(1) the governing or controlling policy document is the HKASP;

(2) under the HKASP, the presence of the passenger concerned is required at all screening of cabin baggage, including the primary screening and secondary screening; and

(3) the same requirement is imposed upon the true construction of the relevant provisions in Section 6 of Part 8 of the HKIA‑ASP read together with or in the light of the HKASP of which, according to Mr Coleman, the HKIA-ASP forms legally a part.

11.  I pause to observe that if there should be any difference in the relevant requirement under the HKASP and HKIA-ASP, it may be argued that the 1^st putative respondent has failed to properly implement the HKASP requirements.  However, that may entail challenging a different decision made by the 1^st putative respondent, and is something outside the scope of the present draft amended Form 86.

12.  I do not, however, consider the second ground of judicial review, namely, procedural impropriety, to be reasonably arguable.  On the assumption that the putative respondents are wrong in their interpretation of relevant requirements of the HKASP and/or HKIA-ASP that the presence of the passenger concerned is required only at a secondary screening, it is nevertheless the case that a reason has been given for their decision.  I do not see how it can be said that they failed to provide any reason for departing from the HKASP.  Otherwise, any misinterpretation of a relevant requirement can, potentially, lead to a challenge based on the ground of procedural impropriety.  To be fair to Ms Li, she makes it clear that the second ground of judicial review is not essential to the present application, and will not give rise to any additional relief.

13.  I may add that a challenge based on a failure to give reasons can normally only be raised by a person who has suffered prejudice or unfairness consequent upon the absence of reasons. I do not see how the applicant, being a flight attendant who was not directly involved in the incident that occurred on 27 to 28 March 2016, has suffered any prejudice or unfairness as a result of the alleged failure to give reasons by the putative respondents of their decisions.  I am also not satisfied that she has any locus to complain of any such alleged failure to give reasons.

Other grounds of opposition to leave being granted

14.  I can deal with the other grounds of opposition advanced by Mr Coleman shortly.

15.  First, it is said that the intended challenge is academic.  It should be noted, however, that this application is not about whether the putative respondents correctly exercised a discretion on the particular facts of the case to permit the cabin baggage to be screened not in the presence of the passenger concerned.  This case is about whether the requirement of the presence of the passenger applies only to a secondary screening.  The answer to this question has potential application to all other passengers departing from the Hong Kong International Airport.  Also, a decision on the issue of the proper interpretation of the relevant provisions in the HKASP/HKIA-ASP would be of assistance to the staff of the putative respondents on how to handle similar situations or requests by other passengers.  I do not consider the present challenge to be academic.

16.  Second, it is said that the challenged decisions are not amenable to judicial review, because they centre upon a very specific operational decision in respect of highly particular facts.  It is correct that the decisions under challenge were made in the course of a day-to-day operation of the 2^nd putative respondent relating to the security screening of cabin baggage.  However, those decisions were made, as I understand it, on the basis of a particular reading or understanding of the relevant requirement in the HKASP/HKIA-ASP which has general application.  Although Mr Coleman says, in paragraph 4(2) of his skeleton argument, that the present challenge centres upon a very specific operational decision in respect of “highly particular facts”, I do not see that the particular facts of this case have much bearing on the key question of whether it is a requirement under the HKASP/HKIA-ASP that the passenger concerned should be present at the time of the primary screening of his/her cabin baggage.  I pause to observe that Mr Coleman has confirmed that the basis of the decisions made by the putative respondents was not that it was known that the bag in question had been searched once in the presence of the passenger’s mother before it went through the primary, X-ray, screening and it was understood that it would be searched again at the boarding gate after the primary screening.  Instead, the decisions were based on the putative respondent’s understanding of the relevant requirements under the HKASP/HKIA-ASP.  In all, I consider the question of the amenability of the decisions of the 1^st and 2^nd putative respondents to judicial review to be reasonably arguable.

17.  Third, it is said that the applicant lacks standing.  In view of the large number of applications for judicial review being made in the Hong Kong court in recent years, I accept that the court should look at the issue of standing closely.  On the existing materials before me, I am unable to conclude, at this stage, that the applicant necessarily lacks standing to challenge the decisions in question, having regard to her status as a flight attendant as well as her position as an ExCo member of the Hong Kong Dragon Airlines Flight Attendants Association.  Again, I consider the question of whether the applicant has standing to challenge the decisions of the 1^st and 2^nd putative respondents in this case to be reasonably arguable, and this question merits further consideration at the substantive hearing of the present application for judicial review.

disposition

18.  In all, I grant leave to the applicant to amend her Form 86, except paragraphs 65b and the second paragraph 92 to paragraph 100 thereof which relate to the procedural impropriety ground, and grant leave to the applicant to apply for judicial review based on the ground of illegality as set out in paragraph 66 to the first paragraph 92 of the amended Form 86.

19.  I also grant the necessary extension of time for the application for leave to apply for judicial review in so far as the challenge against the decision of the 2^nd putative respondent is concerned, in view of the following facts and matters:-

(1) the two decisions made by the 1^st and 2^nd putative respondents respectively under challenge are, in substance, the same decision or decisions to the same effect;

(2) the original application for leave to apply for judicial review of the decision of the 1^st putative respondent was made within time; and

(3) the application against 1^st putative respondent will be heard in any event.

20.  In these circumstances, I consider that there are good reasons for extending the period within which the application for leave to apply for judicial review of the 2^nd putative respondent’s decision shall be made under Order 53, rule 4(1) of the Rules of the High Court, Cap 4.