Hong Kong Journalists Association v Commissioner of Police
Anderson Chow J
17 April, 21 December 2020

Facts

The Hong Kong Journalists Association (the HKJA) sought judicial review of what it complained of as a failure of the Police to facilitate, and not to hinder, lawful journalistic activities at public order events, and a failure of the Commissioner of Police (the Commissioner) to address a catalogue of operational deficiencies in that connection. It asked the Court to proceed by assuming that the Police had ill-treated and hindered journalists as alleged in 13 statements (the Journalist Statements) and to grant declaratory relief on that assumption. The Commissioner’s position in regard to those allegations was that they were matters being or to be investigated in other proceedings or forums. By its Form 86, the HKJA sought two declarations: first, a declaration that the Police had acted unlawfully in failing to facilitate, and in certain cases actively hindering, lawful journalistic activities at public order events, in breach of arts.27 and 28 of the Basic Law and arts.3 and 16 of the Bill of Rights; and second, a declaration that the Commissioner had, in failing or refusing to address the deficiencies complained of, breached art.27 of the Basic Law and art.16 of the Bill of Rights. Subsequently, the HKJA put forward two alternative declarations: first, a declaration that (i) the Police owes both positive and negative duties under art.27 of the Basic Law and art.16 of the Bill of Rights to facilitate, and not to hinder, lawful journalistic activities, as well as a duty to investigate allegations of breaches of those duties and that (ii) those duties include, specifically a duty to distinguish journalists from participants at public order events, a duty to ensure journalists’ safety and protect them and their equipment from harm, and a duty to ensure journalists’ full access and uninhibited reporting first-hand; and second, a declaration that, if the facts alleged by the HKJA were true, the Police would have breached its duty under art.27 of the Basic Law and art.16 of the Bill of Rights at an operational level to facilitate, and not to hinder, lawful journalistic activities.

Held, dismissing the substantive application for judicial review, that:

  1. In the present case the “assumed facts” approach was unworkable and inappropriate because: (i) the parties had not agreed on any assumed facts or on any issues of law to be determined on assumed facts; (ii) the HKJA had not even produced a statement of assumed facts; (iii) it would be inappropriate simply to adopt the Journalist Statements as assumed facts, since while some of the allegations may not be controversial some others were probably hotly disputed; (iv) the suggested exercise would be of little or no practical utility since stating that police officers would have acted unlawfully if they had acted as the HKJA alleged would be stating the obvious, and the critical question was whether the allegations could be proved; and (v) trying the issues of fact would require writ proceedings (R v Horseferry Road Magistrates’ Court, ex parte Bennett (1993) 97 Cr App R 29, R (on the application of A) v The Secretary of State for the Home Department [2004] EWHC 1585 (Admin), R (on the application of Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin), Breyer Group Plc v Department of Energy and Climate Change [2015] 1 WLR 4559, R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 considered). (See paras.5–6, 48.)
  2. A declaration, even if not stated with absolute precision, must be at least of reasonable certainty. Whether a proposed declaration met the requirement of reasonable certainty was a matter of judgment and degree. The declarations sought fell on the wrong side of the line. It would be misleading to make declarations of legal duties in unqualified terms without identifying the possible limits or qualifications of the relevant duties. (See paras.50–58.)

Application

This was the application of the Hong Kong Journalists Association for judicial review seeking declaratory relief in relation to its complaint of the failure of the Police to facilitate, and not to hinder, lawful journalistic activities at public order events, and the failure of the Commissioner of Police to address a catalogue of operational deficiencies in that connection.

Jurisdictions: