TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

FACV Nos 8 and 9 of 2022

[2022] HKCFA 20

FACV No 8 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 8 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO 183 OF 2019)

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FACV No 9 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 9 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO 184 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Lam PJ:

1.  At the hearing, I acceded to the joint application by the appellants and the respondent and directed that leading counsel from London could attend the hearing of the appeals on 4 January 2023 by video-conferencing facilities.  To facilitate the smooth handling of similar applications in the future, it may be useful for me to set out the reasons for my decision, which I now do.

2.  The Court of Appeal delivered judgment in these appeals on 26 January 2022.  Leave to appeal to this Court was initially granted by the Court of Appeal on 13 May 2022.  Pursuant to Practice Direction 2.3, leave was granted by the Appeal Committee on 24 June 2022.  On 16 August 2022, the Acting Registrar was satisfied that the conditions imposed by the order of 24 June 2022 had been complied with.  Final leave was deemed to have been granted on 16 August 2022.

3.  Notices of appeal were issued and filed on 23 August 2022.  On 24 August 2022, the Court informed the parties that the appeals will be heard on 4 January 2023.

4.  On 7 September 2022, a joint application was made in a letter signed by the solicitors seeking a direction that the appeals be heard remotely to accommodate the engagement of London leading counsel on both sides in light of the ongoing pandemic situation and the prevailing quarantine restrictions in Hong Kong.

5.  The Acting Registrar sought further information from the parties. The matter was then referred to me.  After considering the joint request together with the information set out in the correspondence, I gave the following directions on 19 September 2022:

“1. The norm for substantive hearing in the Court of Final Appeal is physical attendance. Remote attendance by counsel will only be considered by way of exception;

2. Under the current Vaccine Pass arrangement for court users, counsel holding an amber code Pass may enter any court premises for the purpose of attending court proceedings if he or she has obtained a daily negative Rapid Antigen Test result before coming to court. If the quarantine requirement is relaxed to ‘0+7’, it is expected that overseas counsel could attend court physically whilst holding an amber code;

3. Taking into account of the concerns raised by the parties, the Court is prepared to grant leave to the London Silk proposed to be instructed by each party to appear on 4 January 2023 remotely from a location in London via video conferencing facilities if the current local ‘3+4’[1] quarantine requirement is NOT relaxed to ‘0+7’ by the end of November 2022. Such leave is conditional on leading counsel being granted ad hoc admission by the High Court for the purpose of the Appeals;

4. If counsel are to attend the Appeals remotely, they have to comply with directions as may be issued by the Registrar for the conduct of remote hearing; and

5. Parties are at liberty to apply if there are other material changes of local quarantine requirement.”

6.  These directions did not resolve all the concerns.  Thus, on 23 September 2022, solicitors wrote jointly to this Court to seek a review of the same.  That led to the hearing on 27 September 2022.

7.  As it happened, on 23 September 2022 quarantine restrictions were relaxed in Hong Kong to a level less restrictive than “0+7”.  Under the new set of restrictions (“0+3”), unless tested positive in the meantime, overseas counsel can attend a court hearing after his or her arrival in Hong Kong even though there are restrictions on visiting some specified premises during the first three days.  Further, unless tested positive, overseas counsel can leave Hong Kong after the hearing.  There is no requirement that he or she must stay in Hong Kong for at least 3 days.

8.  Notwithstanding so, there are concerns that in the unfortunate event of being tested positive, counsel would not be able to attend the hearing physically and would not be able to leave Hong Kong until he or she is fully recovered.  Due to other commitments and engagements, the respective London counsel which the appellants and the respondent intended to retain will not be able to attend the hearing with their physical presence in Hong Kong on 4 January 2023 on account of that risk.  Therefore, they very properly indicated that they were unable to accept instructions to act in the appeals.  There are also concerns that the quarantine restrictions may be tightened up if there is another wave of COVID-19 attack in Hong Kong.

9.  Against such background, the application for a review of the directions of 19 September 2022 was heard by me on 27 September 2022.  

10.  The underlying considerations in an application for remote hearing in Hong Kong are well established.  They were discussed by the Court of Appeal in CSFK v HWH[2]. The mode of hearing is a case management matter and much depends on the circumstances of each case.

11.  The norm for substantive hearing of an appeal in the Court of Final Appeal is by way of physical attendance though permissions had previously been granted for counsel to attend remotely in the particular circumstances of other cases.  With the relaxation of the COVID-19 quarantine restrictions, it is to be expected that the norm will prevail in most cases.  One should not work on a presumption that attendance by remote facilities will invariably be permitted solely because overseas counsel are engaged and they would be subject to quarantine restrictions if they were required to come to Hong Kong physically.  Solicitors should apply for a direction for remote hearing in good time setting out the grounds for the request with adequate information to enable the Court to consider the application properly.

12.  There is no inflexible rule for the exercise of this case management discretion and the Court should not be too dogmatic.  Instead, I would pay regard to all relevant matters pertaining to the fair and efficient disposal of the appeals including the issues to be addressed at the substantive appeals, the desirability of providing the Court with the assistance from specialist overseas counsel in the matter, the prejudice that a party may suffer and the potential disruption to the progress of the appeals if remote attendance is refused.

13.  Whilst the Court would not grant leave for overseas counsel to attend remotely solely for counsel’s convenience (and I do not for one moment suggest that concerns in the present case are mere concerns for counsel’s personal convenience), it may take account of practical difficulties that counsel may encounter if he or she is required to attend physically at the hearing.  The weight that the Court would attach to such difficulties must depend on the circumstances.

14.  Since the outbreak of the COVID-19 pandemic in Hong Kong in 2020, the public health situation has been closely monitored by the government.  Inevitably, in the overall interest of the community there have been changes in the quarantine restrictions from time to time in wake of the latest developments.  At present, it can be said that the formulation of the quarantine restrictions is still in a state of flux.  Many citizens in Hong Kong, like our government, hope that the public health conditions would continue to improve to such a level that the government could further relax or even dispense with such restrictions.  But no-one can foretell how the pandemic would develop in the next few months and it is for the government to strike the balance in light of changes in circumstances.  The courts are in no position to predict what quarantine restrictions would be in force in January 2023.  Based on information presently available, such restrictions would probably encompass those who are tested positive after their arrivals in Hong Kong.  Seen in these light, the concerns mentioned at [8] above cannot be said to be unreasonable.

15.  The questions to be determined in the substantive appeals are as follows:

(1)   Whether the application to the Applicant of the policy of the Respondent requiring full sterilization and genital reconstruction before a transgender person can amend the sex identifier on their Hong Kong Identity Card (‘Policy’) give rise to cruel, inhuman or degrading treatment or the imminent risk of cruel, inhuman or degrading treatment of the Applicant, contrary to Article 3 of the Hong Kong Bill of Rights (‘HKBOR’)?  (Question 1)

(2)   Whether an assessment that a policy is a proportionate interference with the right to privacy under Article 14 of the HKBOR precludes a finding that the Policy is incompatible with Article 3 of the HKBOR?  (Question 2)

(3)   Has the Policy been shown to amount to a proportionate interference with the Applicant’s right to privacy and private life, as guaranteed and protected under Article 14 of the HKBOR? (Question 3)

(4)   When assessing the proportionality of the Policy under Question 3 (Question 4):

(a)  What weight (if any) should be given to the factors identified under Question 1?

(c)  Was the Court entitled to give weight to self-help measures which rely on production of documents issued by foreign Governments?

16.  These are questions of great general public importance and counsel’s analysis in examining the questions at different angles are essential for their proper determination.  The parties were represented by leading counsel from London through remote attendance in the court below.  It is plainly in the public interest that this Court can have the benefit of submissions from counsel of the highest calibre at the hearing of these appeals.  Though only one of the London counsel the parties proposed to engage had appeared in the court below, I am satisfied that both of them could provide invaluable assistance to the Court and it is appropriate to give weight to their concerns in the present application.  

17.  Since it is a joint application, it is envisaged that both leading counsel would be appearing by remote attendance.  Junior counsel for the parties would appear by physical attendance.  There would not be any disparity in treatment.

18.  Moreover, given the timeframe for the preparation of the appeals, it was suggested that a change of leading counsel at this stage would give rise to a need to seek an adjournment of the hearing date in January 2023.  An adjournment of the appeals should be the last resort and it will not be granted lightly.  As explained by Fok PJ in Tsit Wing (Hong Kong) Co Ltd v TWG Tea Company Pte Ltd[3], there are good reasons for maintaining such a policy and in an ordinary commercial case non-availability of counsel may not be sufficient to outweigh those considerations.  On the other hand, in light of the general public importance of the questions raised in these appeals, this Court is naturally disinclined to deprive itself of the assistance from specialist counsel who have a wealth of experience in the relevant Hong Kong legal regime.

19.  In the context of the present appeals, I also bear in mind that at the time when London counsel were approached in May 2022, in light of the then prevailing public health situation and quarantine restriction in Hong Kong, the solicitors laboured under the apprehension that permission for attendance by remote hearing would be readily granted by the Court and counsel had probably arranged their engagements accordingly.

20.  In the end, it was not necessary for me to address any application for adjournment since I had come to the clear conclusion that this is a proper case for granting permission to London counsel to attend the hearing on 4 January 2023 remotely.  I have therefore ordered accordingly.