曹敏儀 v. 警務處長鄧炳強先生

HCAL 2311/2020

[2021] HKCFI 2162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2311 OF 2020

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DECISION

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INTRODUCTION

1.  This is an application by the Commissioner of Police (“the Commissioner”) to vary a costs order nisi made by the court on 21 May 2021 that there be no order as to costs of these proceedings.

BACKGROUND

2.  On 24 November 2020, the Applicant, claiming herself to be an online media journalist, made an application (“the Leave Application”) for leave to apply for judicial review of the decision of the Commissioner to amend the definition of the expression “Media Representatives” in Police General Orders, Chapter 39, §39-01, with effect from 23 September 2020 (“the Amendment”).

3.  Prior to the Amendment, the expression “Media Representatives” was defined to -

“include reporters, photographers and television crews who are in possession of:-

(a) proof of identity issued by individual newspapers, agencies, TV and radio stations;

(b) Hong Kong Journalists Association’s membership card; or

(c) Hong Kong Press Photographers Association’s membership card.”

4.  After the Amendment, the expression “Media Representatives” is defined to -

“include reporters, photographers and television crews who are in possession of proof of identity issued by:-

(a) media agencies registered under the Government News and Media Information System (GNMIS); or

(b) internationally recognized and reputable non-local news agencies, newspapers magazines, radio and television broadcasters.”

5.  In the Form 86, the Applicant contends that the effect of the Amendment is that only journalists with proof of identity issued by media agencies accepted by the Government would be recognized as Media Representatives by the Police contrary to, inter alia, the Basic Law (“BL”), the Hong Kong Bill of Rights (“HKBOR”), and the International Covenant on Civil and Political Rights (“ICCPR”).  The Applicant further contends that there is no difference in the job nature or functions between a traditional media journalist and an online media journalist, and thus they should receive the same treatment by Government departments.  Although the Applicant has not identified the particular articles in the BL/HKBOR/ICCPR relied upon, I do not believe that there can be any real doubt that the Applicant relies upon, amongst other matters, the freedom of speech, the press, opinion and expression guaranteed by BL 27 and/or HKBOR 16 and/or ICCPR 19.

6.  On 8 March 2021, the Department of Justice on behalf of the Commissioner filed and served an Initial Response of the Putative Respondent, pursuant to the court’s directions.

7.  On 10 March 2021, the Applicant applied for legal aid in relation to these proceedings.  On 17 May 2021, the Applicant’s application for legal aid was refused.  On 20 May 2021, the Applicant wrote to the court seeking leave to withdraw the Leave Application, apparently because she was concerned that she might be ordered to pay the Commissioner’s costs should she pursue of the Leave Application but lose the case eventually.

8.  On 21 May 2021, the court granted leave to the Applicant to withdraw the Leave Application, with an order nisi that there be no order as to costs of these proceedings.  On 2 June 2021, the Commissioner issued a summons seeking to vary the costs order nisi so that the Applicant shall pay his costs to be taxed if not agreed (“the Variation Application”).  The Applicant filed and served an affirmation on 16 June 2021 in opposition to the Variation Application.

DISCUSSION

9.  The Commissioner bases his application on the following grounds:

(1)   the application for judicial review was based on the Applicant’s fundamental factual misunderstandings of the effect of Amendment, and was obviously ill-conceived and unmeritorious;

(2)   the Commissioner has prepared the Initial Response upon the court’s directions which would have been of material benefit to the court had it proceeded to determine the Leave Application; and

(3)   the application for leave to apply for judicial review was an abuse of process; in particular, the Applicant has no standing or sufficient interest in the matter to which the application relates.

10.  In respect of the first point, since there has not been any substantive determination of the Leave Application and the court has not had the benefit of receiving or considering full submissions from the parties on the meaning and effect of the Amendment, it would not be appropriate for the court to examine in depth the implications of the Amendment.  However, to the extent that the Applicant complains that the Amendment draws a distinction between a “traditional” media journalist and an “online” media journalist, there is, I consider, force in the Commissioner’s submission that the Applicant has misunderstood the effect of the Amendment.  As pointed out in the Initial Response, an online media agency can be a subscriber to the Government News and Media Information System (“GNMIS”)[1] and a reporter of such agency can also qualify as a “Media Representative” under the current definition of that expression in the Police General Orders.  As a matter of fact, there appears to be 39 (out of 208) online-only media agencies who were subscribers to the GNMIS as at 9 February 2021[2].  Whether the system of subscription to the GNMIS is restrictive, or restricted, in such a way that some online-media agencies may unjustifiably be excluded is a separate issue which falls outside the scope of the current application.

11.  On a preliminary basis, I consider that the Leave Application does not have a good prospect of success.  In this sense, the Leave Application may be said to be ill-conceived or unmeritorious, but this is more a consequence of the misunderstanding of the meaning and effect of the Amendment on the part of the Applicant.  The Leave Application was not, I consider, prompted by any ill purpose or motive on the Applicant’s part, but arose out of a genuine concern that the Amendment unjustifiably drew a distinction between traditional media journalists and online media journalists.

12.  In respect of the second point, the Commissioner has prepared the Initial Responses upon the court’s directions.  I accept and acknowledge that, had it been necessary to determine the Leave Application, the Initial Response would have been of material assistance to the court.

13.  In respect of the third point, I do not consider the materials before the court is sufficient to form a definite conclusion on whether “HKERS Lennon Wall” can properly be described as an online media, and more pertinently, whether the Applicant can properly be regarded as a online media journalist.  In a document attached to her affirmation dated 24 November 2020, the Applicant states that, after the Amendment came into effect on 22 September 2020, her position as an “online journalist” was not recognized by the Police and she was often impeded by the Police (遭到警方為難) and treated as if she were a protester.  She has also produced what appears to be a name-card bearing the word “PRESS”, her name (in Chinese and English) and her photograph, and describing her as a “REPORTER” of “HKERS Lennon Wall”.

14.  There is, so far as I am aware, no legal definition of what constitutes a news media or journalist.  None has been proffered in the Initial Response.  I note that in the GNMIS application guidelines dated 17 September 2017, it is provided in §2 that “GNMIS subscribers must be mass media organisations whose principal business is the regular reporting of original news for dissemination to the general public”. However, this cannot be regarded as constituting a general legal definition of news media or journalist.  Had it been necessary to determine the Leave Application substantively, the court would have invited the Department of Justice to provide further assistance on the definition of a news media or journalist.  Anyhow, even if the Applicant cannot strictly be regarded as a news journalist, it does not necessary follow that she has no standing to make the present application if, prior to the Amendment, she had been accepted or recognized by the Police as a journalist or “Media Representative” but not after the Amendment.

15.  On the existing materials before the court, I do not consider that a definite conclusion can be drawn on whether the Applicant has standing to make the present application.  I would take into account the fact that there is be a substantial dispute on the Applicant’s standing when considering the question of costs.  I do not, however, consider the Leave Application to constitute an abuse of the court’s process.

16.  The principles for awarding costs against an unsuccessful applicant in an application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841), and do not have to be repeated here.  It is clear from the judgment of the Court of Final Appeal that the general rule is that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are special or unusual circumstances which justify such an award, and the discretion of making an award of such costs should be sparingly exercised.  In addition to the matters raised by the Commissioner, the following matters are, I consider, relevant in the court’s exercise of its discretion on costs in the present case:

(1)   The Applicant has voluntarily agreed to withdraw the Leave Application, thus saving the court’s time and potentially further costs of the Commissioner.

(2)   The amendment of the definition of “Media Representatives” in the Police General Orders is undoubtedly a matter of general or public importance.

(3)   The Leave Application raises, or potential raises, issues going to the freedom of speech, the press, opinion and expression, which are some of the most important and fundamental rights in any free society, and should be regarded as strong countervailing considerations even when pitted against operational efficiencies of Government departments (including law enforcement agencies in Hong Kong)[3].

(4)   The Leave Application has not progressed beyond the stage of Initial Response.  Under the court’s directions dated 26 November 2020 and 12 March 2021, the Applicant was granted leave to file and serve a reply to the Initial Response within 28 days after 23 April 2021 (ie on or before 21 May 2021).  As earlier mentioned, the Applicant applied to withdraw the Leave Application on 20 May 2021.  The court had not yet decided whether to hold an oral hearing of the Leave Application. The costs that might have been incurred by the Respondent should not, in the circumstances, be very substantial.

17.  Lastly, I consider it important to bear in mind the rationale behind the general rule that an unsuccessful applicant in a leave application will not be ordered to pay the costs of a putative respondent unless there are special or unusual circumstances which justify such an award. As the Court of Final Appeal said in §13 of its judgment in Leung Kwok Hung:

“… applicants seeking leave to apply for judicial review should ‘on the whole, [be] able to seek relief without fear, if permission was refused, of being saddled with the respondent’s costs at that stage.’ Equally, the imposition of a liability to bear a respondent’s costs should not become a deterrent to a litigant’s right to have access to the courts and care must be taken to ensure that costs ‘are not disproportionately inflated by the involvement of the other parties at the permission stage’. This Court has also recognised that the character of judicial review proceedings to vindicate the public interest and the public importance of a case may be proper matters to take into account when exercising the discretion as to costs.”

18.  The present case is an example where the chilling effect of the possibility of an adverse costs order has led the Applicant to abandon her application for leave to apply for judicial review. It may well be that her application would have been unsuccessful had she decided to pursue it, but prima facie she ought to have been able to seek relief without fear of being saddled with the Commissioner’s costs.

19.  On the whole, I do not consider that this is a proper case for the court’s exercise of its discretion to order costs against the Applicant.  The costs order nisi is made absolute.  There shall be no order as to the costs of the Variation Application.

[1] The GNMIS is an online portal operated by the Information Services Department (ISD) since 2005, which provides a platform integrating all government press releases, broadcasts, photographs and video clips for media.  GNMIS subscribers will receive media invitations from ISD and government bureaux / departments through GNMIS, and must be mass news media organisations whose principal business is the regular reporting of original news for dissemination to the general public (see §7 of the Initial Response).

[2] See §9 of the Initial Response.

[3] The operational efficiencies of the Police were the main reasons, or some of the main reasons, behind the Amendment (see the Appendix to the Initial Response).