RE BU

Intended Action 12/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INTENDED ACTION NO 12 OF 2012

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REASONS FOR DECISION

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1.  This is an ex parte application for what is commonly known as an anonymity order. After hearing the Applicant’s solicitor, this court refused to grant the order. The following are my reasons.

2.  The Applicant intends to commence judicial review proceedings against the decision of the Secretary for Security on 16 December 2011 refusing to rescind a deportation order against him.  The deportation order was made on 24 May 2004 after he had been convicted of 2 offences and sentenced to 6 months’ imprisonment on 16 February 2004.

3.  Since the making of the order, he had married a Hong Kong permanent resident in July 2010 and made an application for dependant visa.  As stated in his draft Form 86, his ground for seeking judicial review is based on the lapse of time, his relationship with his wife and her pregnancy, Article 37 of the Basic Law and the wife’s right to family life.  He also complained about the lack of reasons given in the letter refusing to rescind the deportation order.

4.  In the draft Form 86, the Applicant also referred to the fact that he is a torture claimant and why he had to flee from his home country.  However, it is also plain that these matters have no bearing in the intended judicial review as the grounds for seeking relief have nothing to do with his torture claims. This is confirmed by Mr Daly at the hearing.

5.  However, Mr Daly submitted the mere fact that he is a torture claimant would warrant an anonymity order to be made.  He said the media can inspect the Form 86 and reported the fact that he is a torture claimant and that would bring upon him a risk of harm if he were to be deported back to his home country.

6.  I do not accept these submissions.  In the recent case of In re Guardian New and Media Ltd [2010] 2 AC 697, the Supreme Court of the United Kingdom had to consider whether an anonymity order should be discharged.  At paras 26 to 30, the court analysed the jurisprudential basis for the making of an anonymity order by reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular, at para 27 it was said,

“States are, of course, obliged by articles 2 and 3 to have a structure of laws in place which will help to protect people from attacks on their lives or from assaults, not only by officers of the state but by other individuals. Therefore, the power of a court to make an anonymity order to protect a witness or a party from a threat of violence arising out of its proceedings can be seen as part of that structure.”

At paras 28 and 29, the court identified the relevant provision in the Convention, viz article 8(1) which protects the right to private and family life.  Article 14 of the Hong Kong Bill of Rights gives similar protection.

7.  But there is another side in the balance.  At paras 33 to 36, the Court referred to the right of the press to freedom of expression under Article 10 of the Convention and explained how the making of an anonymity order would interfere with such freedom.  Article 16(2) of the Hong Kong Bill of Rights deals with the same subject.

8.  At paras 48 to 51, the Court examined the approach to be adopted to resolve the apparent conflicts between these fundamental rights.  In short, neither right has precedence over the other.  At para 50, the Court quoted from the judgment of Lord Hoffmann in Campbell v MGN Ltd [2004] 2 AC 457 at para 55,

“There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need …”

9.  In the subsequent case of R (Kambadzi) v Secretary of State [2011] 4 All ER 975, the Supreme Court of United Kingdom applied these principles in the context of a judicial review taken out by a asylum seeker.  At para 6 of the judgment, Lord Hope said,

“It is no longer the case that all asylum seekers as a class are entitled to anonymity in this court. The making of such an order has to be justified.”

10.  On the facts of that case, counsel for the asylum seeker did not seek to maintain the anonymity order.  That, as the Court observed, was a powerful indication that such an order was unnecessary.  However, it does not mean that whenever an application for anonymity order is made by an asylum seeker or a torture claimant, the court will grant the same.  The court still needs to examine the substantive reasons and evidence in support of the application. With respect, I do not think Mr Daly is correct in asserting that once an applicant claimed himself to be a torture claimant an anonymity order ought to be made.  This cannot be right in view of Kambadzi.

11.  On the facts of the present case, given that the torture claim has no bearing on the Applicant’s grounds of challenge in the intended judicial review, the judgment of the court would not go into the allegations of torture.  In fact, as I have said in the course of the hearing, I do not see any reason why it is necessary for the Applicant to mention his status as torture claimant and his allegations of torture in the Form 86.

12.  Nor can I accept Mr Daly’s submission 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.

13.  In the circumstances, the Applicant’s intended judicial review should only be viewed 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 he considered to be a defect in the letter of refusal on account of lack of reason.  It is difficult to see how the mounting of such a judicial review, even if it is reported in his home country, would increase the risk of harm to him in case of his deportation.  Viewed thus, the Applicant’s application cannot get off the ground as Article 8(1) of the Bill of Rights is not engaged.

14.  I also have doubt whether the mere reference to an applicant as torture claimant (without any substantive allegations of torture against a public authority) is sufficient to trigger Article 8(1).  In the absence of some credible evidence, the court should be slow to infer that a foreign state would inflict harm on her subject simply because he had advanced an allegation of torture elsewhere (which ex hypothesi would have been rejected by our court if he is 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 before the court can make an anonymity order.

15.  At para 7 of his affirmation, the Applicant said he had made some allegations against the government of his home country.  He fears that his family and his own safety, both in Hong Kong and in his home country, would be imperiled if the government hears of such allegations.  However, as I said above, those allegations were irrelevant for the purpose of the intended judicial review and it is not necessary for the Applicant to include them in the Form 86.  If the Applicant has a real concern in that regard, he could simply instruct his lawyers to delete those allegations from the Form 86.

16.  In coming to my decision, I also have regard to L v Equal Opportunities Commission [2002] 3 HKLRD 178; Chao Pak Ki, Raymond v The Hong Kong Society of Accountants, HCAL 134/2003, 6 Feb 2004 and Tam Kam Tong v Peter Wong & Partners, DECE 1323/2004, 19 March 2008.  Though these cases were decided before the recent UK authorities, I do not find any inconsistency between them.

17.  For these reasons, I do not consider it appropriate to grant an anonymity order in the present case.  I shall release this judgment for general circulation.