LEELAN RUKESH MARASINGHE v. DIRECTOR-GENERAL OF CIVIL AVIATION

HCAL 1457/2018

[2019] HKCFI 2760

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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D E C I S I O N

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APPLICATION BEFORE COURT

1.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued herein on 24 July 2018, Mr Leelan Rukesh Marasinghe (“applicant”), seeks leave to apply for judicial review to quash the decision of the Director-General of Civil Aviation (“respondent”) to maintain the suspension of the applicant’s Hong Kong class one medical certificate (“April 2018 Decision”), which decision was embodied in and communicated to the applicant by the respondent’s letter dated 25 April 2018.

2.  On 25 July 2018, after a consideration on the papers, Mr Justice Anderson Chow directed, inter alia, that there be a ‘rolled up’ hearing of (1) the application for leave to apply for judicial review (“Leave Application”) and (2) the application for judicial review (“Substantive JR”) in the event of the grant of the Leave Application (“July 2018 Direction”). A timetable for the filing and service of evidence in opposition by the respondent was also laid down.

3.  The ‘rolled up’ hearing so directed has been set down before this court on 3 December 2019 at 10 am, with 1 day reserved.

4.  Before me now is the applicant’s summons dated 26 September 2019, issued pursuant to Order 25 rule 1B of the Rules of the High Court (Cap 4A) and the inherent jurisdiction of the court, applying for variation of the 25 July 2018 Direction such that there be a separate inter partes oral hearing of the Leave Application on 3 December 2019, which is estimated to require 3 hours (“Split Hearing Application”).

MATTERS GIVING RISE TO INTENDED JUDICIAL REVIEW

5.  It is unnecessary for present purpose to go into the matters that gave rise to the applicant’s intended judicial review of the April 2018 Decision in great detail. The following summary based on the Form 86, though somewhat abbreviated, should be sufficient to put the Split Hearing Application in its proper context.

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

7.  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”). 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.

8.  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 as it was over 2.5%.

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

However, all other biomarkers tested on both 9 and 14 March 2016 were not elevated.

9.  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.

10.  Then, by another letter dated 18 April 2016, the respondent informed the applicant that his case had been assessed by the 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 (“April 2016 Decision”). The AMAs who assessed the applicant’s case and made the April 2016 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.

11.  On 14 July 2016, the applicant appealed against the continued suspension of his medical certificate (“Appeal”).

12.  It is CAD’s stated practice on an appeal relating to medical certification that the review panel would comprise of, inter alia, 2 AMAs who have not been involved in the previous decisions in the case from which the appeal has arisen. The review panel originally constituted for the Appeal (“the 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.  

13.  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.

14.  In the meantime, CX had terminated the applicant’s employment on 13 January 2017, after having suspended him without pay since 27 April 2016. 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. 

15.  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. 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.

16.  To cut a long story short, 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 dat27 July 2017 based on the CAD’s stated practice (see [12] 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.

17.  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. 

18.  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 an normally or a “false-positive” and expressing the opinion that the more direct and negative indicators of excessive consumption of alcohol could not be ignored.   

19.  By letter dated 25 April 2018, the respondent informed the applicant’s solicitors of the April 2018 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.

PROPOSED GROUNDS FOR JUDICIAL REVIEW

20.  It is the applicant’s case that the April 2018 Decision is reviewable on the following 3 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;

(3)  that the decision was Wednesbury unreasonable.

21.  Insofar it is material for present purpose, in support of the Actual Bias Ground, the applicant invites the court to infer actual bias against him on the part of Dr Kong from the following:

(1)  Dr Kong and Dr Lee were the 2 persons who made the Original Decision on behalf of the respondent.

(2)  Dr Kong relied only on the applicant’s elevated 2.7% CDT test result on 9 March 2016 and ignored the negative results of his simultaneous confirmatory tests.

(3)  Dr Kong refused to accept the recommendation of Dr Cocks, an AMA member of the Original Review Panel, in favour of the applicant.

(4)  Dr Kong tried to influence Dr Ho.

(5)  Dr Kong added himself (and Dr Lee) to the New Review Panel as an AMA and not merely a representative of the CAD.

PROCEDURAL HISTORY PRECIPITATING FORMAL SPLIT HEARING APPLICATION

22.  On 21 December 2018, after the filing and service of affidavit evidence in opposition by the respondent and affidavit evidence in reply by the applicant, the applicant first invited Chow J to vary the July 2018 Direction to allow split the hearing of the Leave Application and the Substantive JR on the footing that, if leave be granted, he intended to make formal applications for (1) the issue of a subpoena duces tecum and a subpoena ad testificandum against Dr Cocks and (2) discovery of documents against the respondent after the parties had filed evidence.

23.  In response, his Lordship directed on 2 January 2019 as follows (“January 2019 Direction”):

“The Court’s previous directions dated 25 July 2018 shall stand. The court shall consider whether to deal only with the application for leave to apply for judicial review at the oral hearing, but the parties should proceed and prepare on the assumption that both application shall be dealt with at the hearing.”

24.  Following an unsuccessful attempt to obtain the respondent’s consensual disclosure[1], on 2 July 2019, the applicant took out 2 summonses (“Discovery Summonses” collectively), both made returnable on 3 December 2019 at 10 am before Chow J[2]:

(1)  one against the respondent pursuant to Order 53 rule 8 for specific discovery of (a) all emails and other correspondence relating to the Appeal passing between Dr Kong and the other members of the Original Review Panel from the first meeting of such panel on the 23 September 2016 until the resignation of Dr Cocks from that panel in about February 2017 and (b) all emails and other correspondence relating to the Appeal passing between Dr Kong and the other members of the New Review Panel from the first meeting of such panel on the 10 August 2017 until the making of the April 2018 Decision; and

(2)  the other against Dr Cocks pursuant to Order 24 rule 7A for disclosure of all emails and other correspondence relating to the Appeal passing between Dr Cocks and Dr Kong from the first meeting of the Original Review Panel on the 23 September 2016 until the resignation of Dr Cocks from the panel in about February 2017.

The documents sought by The Summonses are said to be material to, and necessary for the fair disposal of, the Actual Bias Ground. With regard to the application for third party discovery, Dr Cocks has expressed willingness to provide the documents sought but feels unable to do so except upon compulsion by court order.

25.  On the same date, the applicant also issued a praecipe for writ of subpoena ad testificandum, also made returnable on 3 December 2019 at 10 am, in order to adduce oral evidence from Dr Cocks, which is likewise thought to be material to, and necessary for the fair disposal of, the Actual Bias Ground. Master Grace Chan has raised requisition on 3 July 2019, querying whether the applicant had obtained leave to cross-examine Dr Cocks and stating that, if he had not, the praecipe was premature.

26.  By a letter dated 13 August 2019 to Chow J’s clerk, the applicant’s solicitors advised his Lordship of the issuance of the Discovery Summonses by the applicant “so as to give the Court an abundance of time in which to consider and, if seen fit, to make to consequent directions thereon, ahead of the hearing” on 3 December 2019.

27.  Chow J responded by pointing out that “it is for the applicants to apply for necessary and appropriate directions in good time” and that “the court will deal with such applications as one properly brought before it in the usual manner”.

28.  Hence, the formal Split Hearing Application to vary the July 2018 Direction.

RESPONDENT’S GROUNDS FOR OPPOSING SPLIT HEARINGS

29.  The respondent opposes to having split hearings of the Leave Application and the Substantive JR on 2 grounds:

(1)  As a matter of merits, the Actual Bias Ground is not reasonably arguable. Hence, discovery relating thereto will not be allowed in any event so that there is no need to split the hearing of the Leave Application and the Substantive JR to accommodate the disposal of the Discovery Summonses.

(2)  From a case management perspective, the July 2018 Direction can only be varied in certain exceptional circumstances namely, (1) where the earlier court direction was based upon erroneous information; (2) where subsequent events, unforeseen at the time the original court direction was made, had destroyed the basis on which that direction was made; or (3) where the interests of justice demand it (see Asia-Pac Infrastructure Development Ltd v Ing Yim Leung Alexander [2011] 1 HKLRD 587, per Stone J at [36]-[38] citing Roult v North West Strategic Health Authority [2010] 1 WLR 487, per Hughes J at [15]), which are absent here. In any event, the applicant has already applied to Chow J in December 2018 and the judge has ruled by given the January 2019 Direction, which should not be revisited.

Discussion

30.  The starting point is the July 2018 Direction is a case management direction. And the court may vary such a direction under Order 25 rule 1B(1).

31.  It strikes me as problematic to proceed with the determination of these proceedings as originally directed by Chow J, despite the issuance and pendency of the Discovery Summonses, just by assessing the strength of such summonses and assuming that they are bound to fail on the basis of the alleged weakness of the Actual Bias Ground, to which the documents applied for by the Discovery Summonses are material.

32.  Now that the Discovery Summonses have been issued, there are potentially 3 matters before the court in these proceedings: the Leave Application and, if the Leave Application succeeds, the Discovery Summonses and the Substantive JR. 

33.  The court does not list the businesses before it by ranking their merits. What the Split Hearing Application requires the court to consider and determine is the logical order in which the court should deal with these 3 matters in the proceedings. In so doing, I do not see how the court could at this stage, without going into any such matters in any depth, proceed as if one of them (i.e. the Discovery Summonses) is not extant and should be overlooked because it is bound to fail due to the supposed weakness of the ground for judicial review to which they relate (i.e. the Actual Bias Ground).

34.  Indeed, the court often directs a ‘rolled-up” hearing of an application for leave for judicial review and, if leave should be granted, the application for judicial review itself when it is not easy for the court to determine on a quick perusal of the papers whether an application for judicial review is reasonably arguable in the sense defined by the Court of Final Appeal in Peter Po Fun Chan (2007) 10 HKCFAR 676: see Kwok Cheuk Kin, HCAL 2882/2018 & 786/2019, [2019] HKCFI 900, per Anderson Chow J at [12]. I assume Mr Justice Chow gave the July 2018 Direction in the first place as a result of the same usual consideration. I believe this answers the respondent’s objection based on the supposed lack of merits of the Actual Bias Ground.

35.  As for the January 2019 Direction, I do not understand Chow J to be pre-empting separate hearings of the Leave Application and the Substantive JR. Looking at the January 2019 Direction closely, I believe his Lordship was leaving the question open and reserving it to the date of the hearing. I therefore do not regard myself as being constrained or inhibited by the January 2019 Direction from acceding to the Split Hearing Application even if there is a good reason to do so.

36.  The present situation appears to me to come within the second circumstance accepted on behalf of the respondent in which it is permissible to vary a prior case management direction, as summarised in [29(2)] above.  Mr Justice Chow gave the July 2018 Direction obviously on the basis that the Leave Application and the Substantive JR could be heard and dealt with together. The making of the Discovery Summonses by the applicant was not then foreseen or foreseeable. It is common ground between the parties that the court should not entertain the Discovery Summonses before the applicant obtains leave for judicial review of the April 2018 Decision. Having so accepted, I fail to see how the respondent can insist on a “rolled-up” hearing of the Leave Application and the Substantive JR on 3 December 2019, without regard to the Discovery Summonses. Even if this court should adopt and stick to the July 2018 Direction, after the 3 December 2019 hearing, in the event that this court should come to the view that leave for judicial review should be granted on the Actual Bias Ground, it is bound to adjourn the consideration and determination of the Substantive JR in order to hear the Discovery Summonses. And if the Discovery Summonses are allowed, the parties must be given an opportunity to re-argue, or at least supplement their submissions on, the Substantive JR with reference to the documents ordered to be disclosed by the respondent and/or Dr Cocks. Such a course will, in my opinion, eradicate any cost-effectiveness or procedural economy that a ‘rolled-up” hearing seeks to achieve. Looking at the matter in this way, the unforeseen subsequent issuance and pendency of the Discovery Summonses has destroyed the basis on which the July 2018 Direction was made.

Disposition

37.  For these reasons, I allow the Split Hearing Application and make an order in terms of paragraphs 1 to 3 of the applicant’s summons dated 26 September 2019.

38.  The applicant also asks for directions for his application for the issue of a subpoena ad testificandum to adduce oral evidence from Dr Cocks.  I hereby direct that such application should be dealt with together with the Discovery Summonses.

39.  As indicated at the hearing on 23 October 2019, I reserve the question of costs of the Split Hearing Application to myself.