Law Mei Mei v Airport Authority

Law Mei Mei v Airport Authority
[2018] 4 HKLRD 312
Court of First Instance
Constitutional and Administrative Law List No 117 of 2016
Anderson Chow J

23 August 2018

Administrative law - aviation security - decisions of Airport Authority and Aviation Security Co Ltd to allow cabin baggage through security screening at airport without presence of passenger - whether contrary to prevailing cabin baggage screening regulations in Hong Kong Aviation Security Programme (HKASP) - whether amendments to HKASP subsequent to grant of leave to apply for judicial review rendered review application academic - approach to construction of HKASP - standing of flight attendant-applicant to bring judicial review

Courts and judicial system - administration of justice - judicial review against Airport Authority and Aviation Security Co Ltd - order sought prohibiting disclosure of affidavit evidence on grounds of security - whether deviation from principle of open administration of justice justified

The Airport Authority (AAHK) was the manager of the Hong Kong International Airport. The Aviation Security Co Ltd (AVSECO) was a subsidiary of the AAHK which provided daily aviation security services including security screening in accordance with the Hong Kong Aviation Security Programme (HKASP), made pursuant to powers under the Aviation Security Ordinance (Cap.494), which stipulates measures to protect the safety, regularity and efficiency of international civil aviation in Hong Kong against unlawful interference. On 27 March 2016, L, an outbound passenger on a Cathay Pacific (CX) flight, cleared primary security screening in the restricted area of the airport. A cabin bag she had left unattended in the departures hall was identified as hers (L's Bag). The AAHK declined to take L's Bag airside to her, but subsequently both AAHK and AVSECO decided to allow CX to take L's Bag through security screening without L (collectively, the Decisions). CX staff then delivered L's Bag to her at her boarding gate.

The applicant (X), a flight attendant and an ExCo member of the Hong Kong Dragon Airlines Flight Attendants Association, sought leave to apply for judicial review of the Decisions, on the ground they were contrary to para.6.2.10, Pt.6 of the HKASP, namely "All screening of cabin baggage shall be conducted in the presence of the passenger" (the Pre-Amendment Regulation). On 24 February 2017, the Judge granted X's application limited to the "illegality" ground (the Leave Hearing). Subsequently, the Secretary for Security decided to make amendments to the HKASP by inter alia removing the Pre-Amendment Regulation and adding para.6.2.11, namely "All reasoned secondary screening and random secondary screening of cabin baggage shall be conducted in the presence of the passenger" (emphasis added) which took effect on 27 April 2018. The AAHK and AVSECO then sought leave to file a second affirmation made by the Principal Assistant Secretary for Security, stating that "solely with a view to saving costs and time of the Court and parties … in arguments over a matter which may well be academic", the Secretary for Security took the opportunity of a regular review of the HKASP to consider the relevant amendments "to clear any doubts as regards the true meaning and intent of para.6.2.10 of the HKASP" (the Additional Evidence Summons). AAHK and AVSECO also sought an order prohibiting counsel from reading out or otherwise disclosing their affidavit evidence at the substantive hearing and if the judgment referred to any such evidence, it would not be made available to the public (the Restricted Evidence Summons), on the ground that such materials were highly sensitive from a security perspective.

Held, granting the Additional Evidence Summons, dismissing the Restricted Evidence Summons and allowing X's application for judicial review and granting the declaration sought, that:

  • In respect of the Additional Evidence Summons, the amendments to the HKASP were not admissible for the purpose of construing the Pre-Amendment Regulation, but they were relevant to determining whether X's application had been rendered academic by the amendments and should be dismissed. The affirmation was therefore admitted for this limited purpose only. (See para.35.)
     
  • The Restricted Evidence Summons was refused. Any deviation from the principle of open administration of justice must be properly justified. The court must balance all relevant considerations, heavily tilting in favour of maintaining open justice given that justice should not only be done, but should manifestly and undoubtedly be seen to be done; the right to a public hearing and the rights to freedom of expression and to impart and receive knowledge. In this case, the main materials were already in the public domain; the evidence already disclosed in court or in this judgment were not so sensitive as to give rise to any real or substantial security concerns; and X's application was for judicial review which had attracted considerable public attention (Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354 applied). (See paras.40-43.)
     
  • It would be unjust to X to dismiss her application without considering its substantive merits only because it had been rendered "academic" by the Secretary for Security's decision to amend the HKASP after the event. The Court retained a discretion to hear and determine the issue concerned. It was relevant that the Government did not make the amendments before the Leave Hearing, and argued, unsuccessfully, at the Leave Hearing that X's application had become academic based on a different ground. Further, the amendments were made specifically because of the litigation (Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 applied). (See paras.44-49.)
     
  • In relation to the HKASP, there were no technical words in the relevant provisions to which an expert in the aviation security field might attribute special meanings such that expert evidence would be particularly relevant. In any event, the true meaning and effect of the HKASP was a matter of law for the court, not an expert, to decide. While the court should always have regard to the context and purpose of the legislation, it remained the court's task to ascertain the intention of the legislature "as expressed in the language of the statute" objectively. This was equally applicable to the HKASP, being a regulatory instrument made under statute. The court would presume that the drafter did not intend to produce consequences that were objectionable, absurd or futile etc but the strength of the presumption depended on the degree to which a particular construction produced an unreasonable result (R (Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209, Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478, HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 applied). (See paras.50-54.)
     
  • In considering the drafting history of the Pre-Amendment Regulation for the purpose of arriving at its true construction, the drafter's view of the meaning and effect of the legislation concerned was generally irrelevant, while the objective background and purpose of the legislation and the mischief sought to be remedied by it were relevant considerations. On the true construction of the Pre-Amendment Regulation, the presence of the passenger was required at the primary screening of his cabin luggage. Inter alia, the requirement facilitated the smooth and efficient operation of the screening process and was consistent with the language used, ie "all screening" (Hilder v Dexter [1902] AC 474 at 477 applied). (See paras.55, 59-60.)
     
  • As to whether flight attendants should be allowed or required to take unattended baggage through security screening to the restricted boarding area without the presence of the passenger, X could properly be said to have some personal right or interest over and above that of the general public or a section of the public on the issue. She also had a legitimate interest in the question of whether allowing a cabin bag to undergo security screening without the passenger was consistent with the relevant regulations relating to the screening of passengers and cabin baggage at the airport. (Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93 applied). (See paras.68-70.)

Application

This was an application for judicial review of the decisions of the first and second respondents to allow cabin baggage through security screening at the airport without the presence of the passenger. The facts are set out in the judgment

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).