LEELAN RUKESH MARASINGHE v. DIRECTOR-GENERAL OF CIVIL AVIATION

HCAL 1457/2018

[2025] HKCFI 2291

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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1.  Unless otherwise stated, in this decision, I shall continue to use the abbreviations and definitions adopted in my earlier decision dated 26 February 2025 ([2025] HKCFI 840) (“26.2.2025 Decision”), disposing of the applicant’s Disclosure, 3^rd Party Disclosure, Oral Evidence and Letter of Request Applications, as defined and discussed in that decision.

2.  Further to the aforesaid applications, the applicant also applies, by a summons filed herein on 12 July 2023 (“XXN Summons”), for leave to cross-examine Dr Kong on his 3 affidavits, the first dated 26 October 2018 and the second and third both dated 19 December 2022 (“1^st Kong Affidavit”, “2^nd Kong Affidavit” and “3^rd Kong Affidavit” respectively and “Kong Affidavits” collectively) regarding the issues stated in Schedule I to the XXN Summons (“XXN Issues”), such cross-examination to take place on a date to be fixed before the judge hearing the substantive application for judicial review.

3.  The XXN Issues are:

(1)  whether Dr Cocks recommended the lifting of the applicant’s suspension (“1^st XXN Issue”);

(2)  whether Dr Kong had been attempting to influence Dr Ho (“2^nd XXN Issue”);

(3)  whether Dr Kong had been sending emails of an intimidating nature to Dr Cocks following Dr Cocks’ withdrawal from the Original Review Panel (“3^rd XXN Issue”); and

(4)  the nature and extent of Dr Kong’s continuous involvement in the Reconstituted Review Panel, following the revision/replacement of Chapter 31 of the 2014 OPM with Chapter 31 of the 2017 OPM (“4^th XXN Issue”).

4.  To put the XXN Summons in context, I refer to, but do not propose to repeat, the factual background and procedural history set out in [4] – [36] of the 26.2.2025 Decision.

5.  By a consent order dated 24 August 2023, I directed, inter alia, that the XXN Summons be disposed of on paper, which I now do.

6.  Cross-examination of witnesses is not a usual feature of judicial review, where in most cases the facts are not in dispute. However, where there are factual or evidentiary disputes that are relevant or germane to the grounds for judicial review, or where an affiant’s reliability or credibility may be in issue, it may be appropriate for the court to order cross-examination of an affiant.

7.  In R v Director of Immigration ex p Do Giau, [1992] 1 HKLR 287 at 344 (21) to (35), Mortimer J held:

“[citing Lord Diplock in O’Reilly v Mackman, [1983] 2 AC 237 at 282(B) to 283(A)] :

‘...the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires.’

It follows that leave will not be given if issues can obviously be resolved on the affidavits themselves; or if cross-examination will obviously be of no value in resolving those issues; or if the issues are not material to the decision of the tribunal or the court’s decision, or if the issues raised are not relevant.

In most cases there is little or no dispute about the limited matters relevant to the court’s review of the decision-making process. However, where there are issues between the deponents which are material and relevant and which cannot obviously be resolved on the affidavits themselves, then cross-examination may be the only just way of resolving those issues.

Where the issues themselves relate to factors affecting the decision of the tribunal, or the fairness of its procedure, cross-examination of course may be especially apposite. …”

8.  In opposing the XXN Summons, the respondent submits, consistently with the above case law, that cross-examination in judicial review should be ordered only in the most exceptional cases, and that if cross-examination is regularly allowed in judicial review cases, court time and legal costs will spiral.

9.  The application of such general principle, however, does not assist the respondent as it will be shown below as to why cross-examination of Dr Kong on the XXN Issues is justified in the circumstances of the instant case where it is readily apparent that there are issues or concerns arising from Dr Kong’s evidence that cannot be resolved on the Affidavits themselves, and which the applicant may legitimately need or wish to pursue, clarify or resolve by way of cross-examination.

10.  For example, in respect of the 1^st XXN Issue, Dr Kong claimed, in paragraph 31 of the 1^st Kong Affidavit, that he could not recall whether or not Dr Cocks recommended the lifting of the suspension of the applicant’s medical certificate. With respect, this seems arguably counterintuitive, if not implausible, given that Dr Kong’s opinion was notably at odds with Dr Cocks’ opinion during the Original Review Panel proceedings, as evidenced by the email correspondence between Dr Kong and Dr Cocks disclosed in the 3^rd Kong Affidavit.

11.  Dr Kong’s position that he could not recall whether Dr Cocks recommended lifting the suspension, also seems at odds with Dr Cocks’ emails to Dr Kong in October 2016. In particular, in his email to Dr Kong on 25 October 2016 (referred to in the 3^rd Kong Affidavit), Dr Cocks stated his belief that the continued suspension should be withdrawn if there was sufficient and reasonable doubt as to whether the decision to issue a continued suspension letter is sustainable. Without making any finding on this point at this time, the reliability (and impartiality) of Dr Kong’s evidence may be in issue, and the applicant may need to test that evidence in cross-examination.

12.  With regard to the 1^st Issue, the respondent suggests that as the applicant has not pointed to any contemporaneous documentary record supporting the existence of such recommendation, there would be no value in cross-examining Dr Kong on something he cannot recall. I disagree. As highlighted above, Dr Kong’s reliability and impartiality may be in issue. Moreover, Dr Cocks’ emails in October 2016 seem to suggest that at the very least, he was inclined to recommend lifting the suspension.

13.  The respondent further submits that even if Dr Cocks had made such a recommendation during the Original Review Panel’s deliberations, this cannot serve as a basis for finding that Dr Kong was biased because, as Dr Ho has explained in her evidence, the Review Panel had concluded that it was necessary to gather additional information and clarify certain matters.

14.  With respect, this argument begs the question. As observed above, (1) Dr Ho’s initial view seemed consistent with Dr Cocks’ opinion that a decision should be made based on the information that was already available and (2) Dr Cocks at the very least seemed inclined to recommend lifting the suspension. That raises questions or concerns as to what led Dr Ho to seemingly reverse her opinion, and whether Dr Kong had unduly influenced her (2^nd XXN Issue). These are all legitimate issues for the applicant to cross-examine Dr Kong on.

15.  Regarding the 2^nd XXN Issue, Dr Kong denied, in paragraph 31 of the 1^st Kong Affidavit, that he had been trying actively to influence

16.  Dr Kong further stated at paragraph 48 of the 2^nd Kong Affidavit that it was impossible for him to exert any undue influence on Dr Ho because Dr Ho was his supervisor. With respect, such perception is fallacious and neither here nor there.

17.  Depending on the facts and circumstances of the individual case, it is possible for subordinates to influence supervisors. See, for example, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at [45] – [48]. In that case, a senior immigration officer decided to make a deportation order against the applicant on the basis of a subordinate immigration officer’s notes. Since the subordinate immigration officer’s notes gave rise to a reasonable apprehension of bias, the decision itself was tainted.

18.  In the present case, it appears from the chronology of emails in the 3^rd Kong Affidavit that Dr Ho changed her opinion after Dr Kong repeatedly rejected Dr Cocks’ views while at the same time propounding his own opposing views in the course of the Original Review Panel proceedings.

19.  In her email of 3 October 2016, Dr Ho apparently advised that before obtaining the applicant’s consent for Dr Fowler and Dr Lee (who were employed by the applicant’s employer) to access and release his medical information, a conclusion can be reached based on the available information. Dr Ho’s opinion at that time seems consistent with Dr Cocks’ view that a decision should be made based on the information that was already available.

20.  However, by the time of her email of 15 November 2016, Dr Ho became supportive of Dr Kong’s suggestion that the respondent should seek the applicant’s full consent for all relevant AMAs to release all his information relating to the licensing matter to the respondent. Further, in her email of 5 December 2016, Dr Ho apparently agreed to invite Dr Fowler to join the Original Review Panel. It seems Dr Ho had effectively reversed her prior opinion.

21.  The timing of Dr Ho’s apparent reversal of opinion coincides with the clash of views between Dr Kong and Dr Cocks. Moreover, as can be seen from the chronology of emails in the 3^rd Kong Affidavit, Dr Kong appeared to have had discussions regarding the applicant with Dr Ho (email or oral) in the absence of Dr Cocks.

22.  As a result, there may be a real concern as to whether Dr Kong remained impartial and detached or whether he had become an advocate for a particular position, and whether his reporting relationship with Dr Ho and access to her without Dr Cocks being present, may have resulted in Dr Kong unduly influencing Dr Ho. Thus, there is a valid evidential basis to justify the applicant testing Dr Kong’s evidence, by way of cross-examination, as to whether Dr Kong had influenced Dr Ho or had attempted to do so.

23.  As for the 3^rd XXN Issue, Dr Kong denied having sent intimidating email(s) to Dr Cocks following his withdrawal from the Original Review Panel in paragraph 32 of the 1^st Kong Affidavit. There is no email of such nature before the court. There has been no discovery or disclosure of any such emails (not just those deemed by the respondent to be intimidating. Without such disclosure or discovery, the respondent says that it would be impossible to objectively verify whether there were no emails of an intimidating nature.

24.  Contrary to the respondent’s argument, even in the absence of discovery of any intimidating email(s) between Dr Kong and Dr Cocks after Dr Cocks’ withdrawal from the Original Review Panel, where Dr Kong’s reliability and impartiality is in issue, it may be necessary to cross-examine him, and such questioning may give rise to further discovery of relevant documents.

25.  It is further submitted by the respondent on the state of evidence on the 3^rd XXN that the XXN Summons should in any event be swiftly dismissed insofar as the Apparent Bias Ground is concerned because the presence of apparent bias or otherwise is to be viewed objectively and thus not amenable to cross-examination. In support of the proposition that there is an absolute bar to cross-examining a judge or decision maker in judicial review proceedings, the respondent cites Locabail (UK) Ltd v Bayfield Properties Ltd, [2000] QB 451 and the English jurisprudence following that case.

26.  In reply, the applicant points out that a bright line cannot be drawn between cases involving actual bias and those involving apparent bias and that Locabail and the other cases cited by the respondent are concerned with judges or quasi-judicial tribunals exercising judicial or quasi-judicial functions, which are qualitatively different from the case at bar.

27.  Both the Original Review Panel and the Reconstituted Review Panel exercised functions analogous to an expert determining medical fitness to operate a vehicle pursuant to a licensing regime, rather than a judge or tribunal exercising judicial or quasi-judicial functions. Thus, it is doubtful whether Locabail and the cases following it are applicable to the present case, and there is no bar to cross-examining Dr Kong in respect of the Apparent Bias Ground.

28.  In any event, insofar as the Apparent Bias Ground is concerned, the purpose of the cross-examination of Dr Kong is to explore and test the primary facts and circumstances from which the court is invited by the applicant/respondent to respectively find/dismiss apparent bias.

29.  As for the Actual Bias Ground and Natural Justice Ground, the respondent argues that cross-examination should not be permitted because the applicant has not identified any evidence that could lead to an inference of improper behaviour. Such argument is misconceived. Cross-examination in judicial review proceedings is not restricted to situations in which an inference of improper behaviour can be made. As I have pointed out above, Dr Kong’s reliability and impartiality may be in issue and the evidence of the Original Review Panel’s communications may also give rise to a concern that Dr Kong unduly influenced Dr Ho.

30.  Moving onto the 4^th XXN Issue, it is not entirely clear from the Kong Affidavits as to what the nature and extent of Dr Kong’s involvement was. In particular, it is not at all clear (1) whether at any relevant time, Dr Kong may or may not have exercised overlapping and conflicting roles on the Reconstituted Review Panel; (2) the nature and extent of his participation in the Panel’s deliberations (including oral discussions); and (3) to what extent Dr Kong may or may not have propounded or supported any particular views or positions. At the same time, it is the applicant’s case that paragraph 2.10 of the 2017 OPM left Dr Kong in charge of the entire review process from beginning to end. These are relevant matters that the applicant may need to explore with Dr Kong through cross-examination.

31.  For the reasons stated above, there are sufficient grounds to allow the applicant to cross-examine Dr Kong in respect of all the XXN Issues and I order accordingly.

32.  As for costs, I order the respondent on a nisi basis to pay the applicant his costs of this application to be taxed on a party-and party basis (if not agreed).

33.  Lastly, I thank counsel for their assistance.

Mr Thomas Lee and Mr Brian Chok, instructed by Haldanes, for the applicant

Ms Catrina Lam and Mr Charlie Liu, instructed by the Department of Justice, for the respondent

HCAL 1457/2018

[2025] HKCFI 840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1457 OF 2018

________________________

________________________

BETWEEN

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DECISION

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Introduction

1.  Before the court are 4 interlocutory applications (“Applications” collectively) by the applicant, Mr Leelan Rukesh Marasinghe:

(1) by summonses dated 2 July 2019 for (a) specific discovery against the respondent, the Director-General of Civil Aviation (“Disclosure Application”); (b) third party disclosure against one Dr Robert Anthony Cocks (“Dr Cocks”) (“3^rd Party Disclosure Application”) and (c) for a writ of subpoena ad testificandum to adduce oral evidence from Dr Cocks (“Oral Evidence Application”); and

(2) by summons dated 6 March 2023 for a letter of request to be issued to the proper judicial authority of the United Kingdom for the oral examination of Dr Cocks and for the production of documents in his possession, custody or power (“Letter of Request Application”).

2.  By order dated 15 August 2022, I directed that the Disclosure Application, the 3^rd Party Disclosure Application and the Oral Evidence Application be disposed of on paper.

3.  While no direction has been given for the determination of the Letter of Request Application, both parties are willing to have such application also disposed of on paper. To save time and costs, the Letter of Request Application will be dealt with in [53]-[81] below.

Background

4.  To put the Applications in context, I refer to, and repeat hereinbelow, the summary of facts in [6] to [19] of the decision I handed down herein on 6 November 2019, allowing the applicant’s application for split oral hearings of the application for leave, and the substantive judicial review (“Split Hearings Direction”). Although such summary is based on the averments in the Form 86, unless otherwise qualified in this decision, the events mentioned under this heading are largely matters of record, which do not appear to me to be controversial. Where it is required, I also incorporate relevant material disclosed in the respondent’s evidence in opposition filed after the Split Hearings Direction which, likewise, seems to be uncontroversial.

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

6.  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”).

7.  In addition, the holder of an AN(HK)O Licence cannot work as a pilot unless he also has 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 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 because it was over 2.5%.

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

(3) 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 a letter dated 18 April 2016, the respondent informed the applicant (1) that his case had been assessed by CAD’s Approved Medical Assessors (“AMAs”) and (2) 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 (“Original Decision”).

11.  The AMAs who assessed the applicant’s case and made the Original Decision on behalf of the respondent were Dr Kong Hing Kei (“DrKong”) and Dr Horace Lee (“Dr Lee”). The former was the CAD’s only Senior Medical and Health Officers (Aviation Medicine) (“SMO(AM)”) until the end of 2017 while the latter is a medical doctor in CX’s employ and an AMA.

12.  Beginning from 27 April 2016, CX had suspended the applicant without pay.

13.  On 14 July 2016, the applicant appealed against the continued suspension of his medical certificate, i.e. the Original Decision (“Appeal”).

14.  This is a convenient point to explain how appeals are dealt with within the CAD prior to December 2017. In this regard, within the CAD, the Personnel Licensing Office (“PELO”) carries out and/or supervises the performance of CAD’s licensing functions. It forms part of the Flight Standards & Airworthiness Division (“FSAD”) of the CAD. The FSAD is led by the Assistant Director-General (Flight Standards) (“ADG(FS)”). There are 3 sections within the FSAD, namely (1) the PELO itself; (2) the Flight Standards Office (which is led by the Chief, Flight Standards (“C,FS”); and (3) the Airworthiness Office (which is led by the Chief, Airworthiness Standards).

15.  The CAD, through the PELO, publishes a number of documents concerning procedures and standards that seek to comply with the ICAO Licensing Manual. The PELO publication that is relevant to this case is the Office Procedures Manual (“OPM”). The OPM is not a public document but an internal document within the CAD.

16.  The Appeal was initially handled in accordance with the procedures set out in Chapter 31 of the February 2014 version of the OPM (“2014 OPM”). More specifically, the extract entitled “Handling Request for Review on Medical Certification Matters” under Chapter 31 provided, inter alia, that:

(1) A letter of appeal on medical certificate matters should be addressed to the SMO(AM) (paragraph 2.3).

(2) SMO(AM) will carry out an initial investigation and submit a preliminary report to C,FS (paragraph 2.4).

(3) C,FS will set up a review panel comprising preferably at least the SMO(AM), one Government AMA and one non-Government AMA (paragraph 2.5).

(4) The review panel will make a final report to C,FA and advise if they have found any justifiable grounds for the appeal (paragraph 2.6).

(5) The findings of the review panel must be endorsed by C,FS or ADG(FS) as determined by C,FS before the appellant will be advised in writing of the outcome of the appeal (paragraph 2.7).

17.  For the purpose of paragraph 2.5, it is CAD’s stated practice on an appeal relating to medical certification that the review panel would comprise, inter alia, 2 AMAs who have not been involved in the previous decisions in the case from which the appeal has arisen.

18.  The review panel originally constituted for the Appeal (“Original Review Panel”) comprised Dr Kong as the CAD’s representative and Dr Cocks and Dr Mandy Ho (“Dr Ho”), neither of whom were involved as AMAs in previous decisions in the applicant’s case.

19.  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. On 7 February 2017, Dr Cocks resigned from the Original Review Panel.

20.  In the meantime, CX had terminated the applicant’s employment on 13 January 2017. 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.

21.  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.

22.  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.

23.  Following Dr Cocks’ resignation from the Original Review Panel, the CAD sought legal advice from the Department of Justice in order to ensure that the review mechanism was fair and appropriate.

24.  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 dated 27 July 2017 based on the CAD’s stated practice (see [17] above) and principles of natural justice and procedural fairness, the New Review Panel comprised Dr Kong, Dr Lee, Dr Ho, Dr John Fowler, an AMA in CX’s employ, and Dr Wong Yee Him, a consultant psychiatrist.

25.  In the meantime, subsequent to the constitution of the New Review Panel and during the currency of the Appeal, in December 2017, the respondent revised and replaced Chapter 31 of the 2014 OPM with Chapter 31 of the 2017 version of the OPM (“2017 OPM”).

26.  Insofar as it is material, under Chapter 31 of the 2017 OPM, the applicant may object to the preliminary review of the case by SMO(AM) and to the appointment to the new review panel an AMA who had been involved in the original decision of the case under review (paragraph 2.7). In this connection, it is worthy of note that after the New Review Panel was set up in July 2017, the applicant did through his solicitors object to the involvement of Dr Kong and Dr Lee in the New Review Panel but to no avail. However, such objection was made on the strength of the CAD’s practice as stated in [17] above and principles of natural justice and procedural fairness, not Chapter 31 of either version of the OPM.

27.  In addition, the 2014 OPM expressly required the C,FS and/or the ADG(F,S) to indorse the findings of the review panel. Such requirement is deleted in the 2017 OPM. Instead, paragraph 2.10 of the 2017 OPM simply requires the C,FS and/or the ADG(F,S) to be kept informed of the review application on a regular basis and in writing. It is the applicant’s case that the new rule left Dr Kong in charge of the entire review process from beginning to end.

28.  It is the applicant’s evidence that he had not been informed that the Appeal was initially handled in accordance with the procedures prescribed in Chapter 31 of the 2014 OPM. Nor had he been advised of the replacement of Chapter 31 of the 2014 OPM by Chapter 31 of the 2017 OPM or the adoption of the 2017 OPM in the determination of the Appeal. In short, the applicant says that he was not made aware of the existence, content or application of these rules in his case until they were disclosed in Dr Kong’s 1^st affidavit filed on 25 October 2018 (“1^st Kong Affidavit”).

29.  Coming back to the chronology, by a 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.

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

31.  By a letter dated 25 April 2018, the respondent informed the applicant’s solicitors 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 (“Review Decision”).

32.  The cumulative effect of the Original Decision and the Review Decision was to render the applicant incapable of performing his licensed functions as a commercial pilot in Hong Kong, thereby leading to the termination of his employment with CX.

Procedural background

33.  Against the abovementioned background, it was originally the applicant’s case that the Review Decision is reviewable by the court on the following 4 grounds:

(1) that the respondent (primarily through Dr Kong) 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 (“Apparent Bias Ground”);

(3) that the decision was Wednesbury unreasonable (“WednesburyUnreasonable Ground”); and

(4) that the decision was illegal as the New Review Panel had fettered its own discretion (“Illegality Ground”).

34.  After the parties filed their respective written submissions on the question of leave, the respondent accepted that leave for judicial review can be granted in respect of the Apparent Bias Ground. Meanwhile, the applicant has confirmed by the deletion of paragraphs 76 to 85 of the existing Form 86 that he will not pursue the Wednesbury Unreasonable and Illegality Grounds. That is to say, on the question of leave, of the 4 original grounds, only leave for the Actual Bias Ground remained contentious.

35.  However, the applicant has, by paragraph 75A of the proposed Amended Form 86, articulated a new complaint about the procedure by which the Appeal was conducted which, he says, was “fundamentally unfair and in breach of natural justice” (“Natural Justice Ground”) based on the points identified as supporting the Apparent Bias Ground.

36.  Following the Split Hearings Direction, I handed down a decision on 15 August 2022, which (1) allowed the applicant to amend the Form 86, including averments of his reliance on the revision and replacement of Chapter 31 of the OPM and to add the Natural Justice Ground (“Amendment Decision”), and (2) granted leave to applicant to commence judicial review of the Review Decision on the Actual Bias Ground, the Apparent Bias Ground and the Natural Justice Ground (“Leave Decision”).

Disclosure Application

37.  After the Amendment and Leave Decisions, the respondent filed Dr Kong’s 2^nd and 3^rd Affidavits on 19 December 2022 (“2^ndKongAffidavit” and “3^rd Kong Affidavit” respectively) responding to, interalia, the Amended Form 86.

38.  In particular, the 3^rd Kong Affidavit disclosed correspondence (1) between Dr Kong and other members of the Original Review Panel on 23 September 2016 until the withdrawal of Dr Cocks from the Original Review Panel in February 2017 and (2) between Dr Kong and other members of the New Review Panel from its first meeting on 10 August 2017 until the Review Decision on 25 April 2018, insofar as such correspondence is in CAD’s possession, custody or power.

39.  In light of such new evidence, the applicant no longer pursues the Disclosure Application.

40.  I refuse the Disclosure Application.

3^rd Party Disclosure Application and Oral Evidence Application

41.  By the 3^rd Party Disclosure Application, the applicant seeks an order that:

“Dr Robert Anthony Cocks…do disclose to the Applicant true copies of all emails and other correspondence that are within his possession, custody or power relating to the Applicant’s appeal dated 14 July 2016 against the continued suspension of the Applicant’s medical certificate (the “Appeal”) passing between Dr Robert Anthony Cocks and Dr H.K. Kong, both members of the review panel formed to consider the Appeal (the “Original Review Panel”) from the first meeting of the Original Review Panel on 23 September 2016 until the resignation of Dr Robert Anthony Cocks from the Original Review Panel in or about February 2017”.

42.  By the Oral Evidence Application, the applicant seeks to issue a writ of subpoena ad testificandum compelling Dr Cocks to give live oral evidence concerning his emails and other correspondence with Dr Kong concerning the Appeal.

43.  The applicant had, however, learnt after the issue of the summonses for the 3^rd Party Disclosure Application and the Oral Evidence Application from the correspondence between the applicant’s solicitors (Messrs Haldanes) and Dr Cocks’ solicitors (Messrs Howse Williams) that Dr Cocks no longer lives in Hong Kong. Further, through such correspondence, Cocks has made it clear that he would produce documents and give oral evidence only upon compulsion of a court order.

44.  It is against such development that the applicant makes the Letter of Request Application, which is in the alternative to the 3^rd Party Disclosure Application and the Oral Evidence Application.

45.  The applicant had invited me to adjourn the hearing of the 3^rd Party Disclosure Application and the Oral Evidence Application sinedie, with costs reserved, to allow for the “remote possibility that Dr Cocks will agree to return to Hong Kong so as to be able to accept service” (of the summonses for the 3^rd Party Disclosure Application, the Oral Evidence Application and Letter of Request Application).

46.  According to the respondent, the fact that Dr Cocks has permanently left Hong Kong poses a fundamental jurisdictional challenge to the 3^rd Party Disclosure Application and the Oral Evidence Application, due to the well-established principle that the court does not have jurisdiction to compel a non-party residing abroad to give oral evidence or produce documents in the absence of urgent necessity.

47.  In support, the respondent refers to Mackinnon v Donaldson, Lufkin and Jenrette Securities Corp [1986] Ch 482, where Hoffmann J (as he then was) discharged an order and subpoena that required a US bank, which also carried on business in London, to produce books and papers held at its head office in New York, relating to transactions which took place in New York on an account maintained there with the US bank by a Bahamian company. Hoffmann J held that barring exceptional circumstances, a non-party foreigner should not be required to produce documents outside the jurisdiction concerning business which it has transacted outside the jurisdiction. The principle is that a state should refrain from demanding obedience to its sovereign authority by foreigners in respect of their conduct outside the jurisdiction (at 493F-H).

48.  The respondent also drew my attention to Re Tucker [1990] Ch 148, wherein Dillon LJ noted the “general practice in international law is that the courts of a country only have power to summon before them persons who accept service or are present within the territory of that country when served with the appropriate process” (at 158D-E).

49.  The above principle was applied by me in Global Gaming Philippines LLC v Deutsche Bank AG[2019] HKCFI 405 at [50]:

“Where the non-party is a foreign person, as in this case, additional considerations must be made. A non-party can only be compelled to produce documents that are abroad in exceptional circumstances of urgent necessity. See: Dicey, Morris and Collins on The Conflict of Laws, 15^th edition, Volume 1, at paragraphs 8R-067, 8-069, 8-072 and 8-073. Where it is necessary to obtain evidence under compulsion from a third party who is outside the jurisdiction, the proper procedure should be, interalia, by way of a letter of request to the foreign court. See Dicey, Morris and Collins on The Conflict of Laws, supra, Rule 23(3) at paragraph 8R-067 and paragraph 8-740 and Mackinnon v Donaldson, Lufkin & Jenrette Securities [1986] Ch 482 at 499F-H.”

50.  The applicant makes no claim that the exception of “urgent necessity” could be applied in the present case.

51.  Indeed, the applicant appears to be cognisant of the difficulties with the 3^rd Party Disclosure Application and the Oral Evidence Application. He acknowledges that the Letter of Request Application is made in the “alternative” to the 3^rd Party Disclosure Application and the Oral Evidence Application, on the footings that (1) “this Court does not have, or no longer has, the jurisdiction to accede to them” and (2) “Dr Cocks will not resume residency in Hong Kong and/or will continue to decline to return to Hong Kong so as to be able [sic] accept service”.

52.  Given the foregoing, I dismiss the 3^rd Party Disclosure Application and the Oral Evidence Application on the basis that the Hong Kong courts do not have subject matter jurisdiction. I reject the applicant’s invitation to adjourn the hearing of these 2 applications sine die to allow for the “remote possibility that Dr Cocks will agree to return to Hong Kong so as to be able to accept service”. As the respondent correctly points out, there is simply no evidential basis for such speculation.

Letter of Request Application

53.  Where it is necessary to obtain evidence under compulsion from a third party who is outside the jurisdiction, the proper procedure should be, inter alia, by way of a letter of request to the foreign court: Mackinnon at 499F-H and Global Gaming Philippines LLC at [50].

54.  Under Order 39 rule1 of the Rules of the High Court (Cap 4A), the court has jurisdiction to order the issuance of a letter of request. In deciding whether to do so, the court takes into account 5 factors: (1) whether the evidence to be obtained is necessary and in the interest of justice; (2) whether the witness cannot reasonably be expected to come to Hong Kong; (3) whether reasonable attempts have been made to obtain evidence in other ways; (4) whether the evidence is such that a full-fledged cross-examination is appropriate; and (5) whether the application is made bona fide and with such promptness as not to cause unreasonable delay. See Huang Yu Hui v Zheng Shizhi [2022] 1 HKC 274 at [10]-[11] per Au-Yeung J.

55.  More importantly, it is trite that a letter of request should not be issued unless the evidence is directly material to an issue in the case: Hong Kong Civil Procedure 2025, Volume 1, §39/2/1 and Samuel Tak Lee v The HongKong Chinese Christian Church Union, HCAL 27/2008, unreported, Chu J (as she then was), 25 September 2009.

56.  Even though it is open to a judge hearing a judicial review application to permit oral evidence to be adduced, “for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence so as to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross-examination in judicial review proceedings, the court time and legal costs involved in such cases will spiral”: Bubb v Wandsworth LBC [2012] PTSR 1011 at [24] per Lord Neuberger.

57.  In the absence of oral evidence and cross-examination, a party can nonetheless challenge the written evidence “by analysis of the facts and law, by reference to the documents and/or other witness statements in its written and oral submissions”. A party can also rely on gaps and inconsistencies in the evidence “through submissions, identifying the alleged gaps and inconsistencies in the evidence and inviting the court to draw conclusions from the same”. See R (Good Law Project) v SSHSC [2022] PTSR 644 at [275]-[278] per O’Farrell J.

58.  On this note, I shall first address the request for oral examination of Dr Cocks before turning to the request for production of documents.

Letter of Request Application — request for oral evidence

59.  The applicant wishes to examine Dr Cocks on the following 4 issues:

(1) what had been said by Dr Cocks to the applicant from late 2016 to early 2017 (“Category 1 Information”);

(2) what had been discussed among Dr Kong, Dr Ho and Dr Cocks collectively and/or individually concerning the Appeal during the period between Dr Cocks’ appointment to the Original Review Panel in 2016 and his resignation in 2017 (“Category2 Information”); and

(3) the meaning of, and the background to, the documents (a) to be produced by Dr Cocks, including allegedly intimidating emails and (b) those already produced under the 2^nd and 3^rd Kong Affidavits (“Category 3 Information”); and

(4) the allegation concerning Dr Cocks’ consultations with the applicant prior to his appointment to the Original Review Panel, if any (“Category 4 Information”).

60.  While the applicant recognises that oral evidence and compulsory discovery are unusual in judicial review, it is submitted on his behalf that this is an unusual case. It is contended on behalf of the applicant that there is good reason to subpoena Dr Cocks:

(1) The Actual Bias Ground is based on the applicant’s evidence of what Dr Cocks told him in late 2016 and early 2017 about Dr Cocks’ interactions with Dr Kong, while both were members of the Original Review Panel.

(2) Dr Kong disputes this version of events.

(3) The evidence, if available, would disclose a direct, irreconcilable conflict on the factual issues underlying the Actual Bias Ground. As it is, the applicant has been able to adduce only hearsay evidence of Dr Cocks’ interactions with Dr Kong and Dr Ho.

61.  The respondent has noted that, on the applicant’s own case, the requested oral evidence is relevant only to the Actual Bias Ground.

62.  It is, therefore, Dr Kong’s state of mind that is material to the applicant’s complaint, it being well-established that the test for actual bias is subjective and has to do with that decision-maker’s actual state of mind: De Smith’s Judicial Review (8^th Ed) §10-012. The respondent has also observed that there is no challenge by the applicant that the court is ultimately concerned with the actual state of mind of the decision-maker complained of.

63.  On the other hand, the applicant suggests that it is not right to draw a rigid line between the Actual Bias Ground and the Apparent Bias Ground, citing the Amendment and Leave Decisions, in which I held that “there is still room for argument on the test for finding actual bias or the situations in which such a finding can be made and whether the facts of this case would support such a finding” (at [44]).

64.  In my view, Dr Cocks should not be compelled to give live evidence.

65.  First, I agree with the respondent’s observation that the applicant’s written submissions shy away from a proper analysis of why Dr Cocks’ oral evidence is necessary to the factual issues in dispute other than a general reference to an alleged “direct, irreconcilable conflict” between (1) “the Applicant’s evidence concerning what Dr Cocks told him in late 2016 and early 2017 about Dr Cocks’ interactions with Dr Kong” and (2) Dr Kong’s evidence.

66.  Such alleged conflict is not perse a sufficient reason to introduce Dr Cocks’ oral evidence. There is no reason why the applicant cannot rely on the gaps and inconsistencies in the documentary evidence: R(Good Law Project), supra. Indeed, the applicant himself has stated several times in his affidavit evidence that “the determination of the [A]ctual [B]ias [G]round will largely turn on the assessment of documentary evidence in the form of emails”.

67.  Turning then to each category of information sought by the applicant, in relation to the Category 1 Information:

(1) The applicant is in a position to communicate what Dr Cocks had allegedly said to him from late 2016 to early 2017, and he has in fact done so.

(2) I agree with the respondent that it is highly doubtful whether Dr Cocks is able to give meaningful oral evidence outside of what appears from the documentary records that still exist, given the inevitable fading of memory due to the long lapse of time, which would no doubt be more extended by the time the applicant enforces the letter of request, if issued.

(3) It also strikes me as unnecessary for Dr Cocks to repeat what is already reduced in writing.

(4) Furthermore, insofar as the applicant seeks to introduce Dr Cocks’ personal impression of Dr Kong, that would not really assist the court in determining the key issue of Dr Kong’s state of mind.

68.  As for the Category 2 Information, the applicant can resort to the relevant minutes, email correspondence and written records, all of which would reflect the discussions between the decision makers at the meetings of the Original Review Panel.

69.  As to the Category 3 Information, the documents and written records speak for themselves. It is not necessary for the court to hear Dr Cocks’ interpretation. Moreover, given the infallibility of memory, it is difficult to see how Dr Cocks’ recollection of events that took place some 9 to 10 years ago (and longer by the time of the substantive hearing) could meaningfully assist in the interpretation of such documentary records.

70.  Regarding the Category 4 Information, the applicant himself can speak to the consultations he had had with Dr Cocks prior to Dr Cock’s appointment to the Original Review Panel. Moreover, I fail to see how the consultations between the applicant and Dr Cocks are relevant to the alleged actual bias on the part of Dr Kong.

71.  Finally, I note the respondent’s contention that the applicant is confused about the decision that he is attacking. The present judicial review application is concerned with the Review Decision made by the New Review Panel, of which Dr Cocks was not a member. As a result, Dr Cocks is not, or should not be, in a position to give evidence on the deliberations made by the New Review Panel at all.

72.  The applicant’s response is that if he can make good his case on actual bias, this court may conclude that Dr Kong continued to be actually biased in leading the New Review Panel in arriving at the Review Decision.

73.  With respect, I fail to see any or any solid basis for the applicant’s suggestion that Dr Cocks is able to testify on Dr Kong’s state of mind subsequent to Dr Cocks’ resignation from the Original Review Panel in February 2017.

74.  I refuse the applicant’s application for a letter of request to summons Dr Cocks to give oral evidence.

Letter of Request Application—request for production of documents

75.  The applicant’s revised draft letter of request invites the court to direct Dr Cocks to:

“…discover and produce emails and other correspondence that are within his possession, custody or power relating to the Applicant’s appeal against the suspension of the Applicant’s Hong Kong class one medical certificate in 2016, passing between him and Dr H.K. Kong, from the first meeting of the Original Review Panel on 23 September 2016 until the resignation of Dr Robert Cocks from the Original Review Panel in or about February 2017”

76.  The applicant acknowledges that the scope of document discovery sought in the Letter of Request Application mirrors that of the 3^rd Party Disclosure Application. It is thus contended in the applicant’s written submissions that, just as it is appropriate for the court to accede to the 3^rd Party Disclosure Application, it is appropriate for the court to grant the Letter of Request Application to compel Dr Cocks to produce documents in his possession, custody or power. In other words, the submissions in support of the 3^rd Party Disclosure Application should apply with equal force to the document discovery sought in the Letter of Request Application.

77.  It is worthy of note that in dealing with the 3^rd Party Disclosure Application, the applicant thought that it needed to be “addressed only briefly”.

78.  The applicant highlights, firstly, that the respondent has taken a neutral stance; and secondly, that this application goes together with that of a subpoena and would thus create no additional burden on Dr Cocks.

79.  I am not persuaded that a letter of request should be issued to compel Dr Cocks to produce the aforesaid documents.

80.  First, the disclosure under the 3^rd Kong Affidavit is rather extensive. The applicant is correct to acknowledge the overlap between the respondent’s disclosure and what is sought under the Letter of Request Application. Such overlap should render this part of the Letter of Request Application unnecessary. The applicant has not advanced any counterargument, other than to highlight the respondent’s neutral stance, to convince me that more discovery by a foreign non-party is necessary.

81.  Second, the applicant bears the burden, but has wholly failed, to satisfy the court that further discovery by a foreign non-party (which is not a routine procedural step) is necessary to dispose fairly of this application for judicial review or to save costs: Global Gaming Philippines LLC, supra, [46].

Disposition

82.  To sum up, for the foregoing reasons, I dismiss all of the Applications.

83.  I shall hear the parties on the question of costs. Any applications for costs shall be made in the first instance by letter to this court within the next 14 days.

84.  Lastly, I thank counsel for their able assistance.

Mr Thomas Lee and Mr Brian Chok, instructed by Haldanes, for the applicant

Ms Catrina Lam and Mr Charlie Liu, instructed by the Department of Justice, for the respondent

HCAL 1457/2018

[2022] HKCFI 2483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1457 OF 2018

__________________________

__________________________

BETWEEN

__________________________

________________

JUDGMENT

________________

APPLICATIONS BEFORE COURT

1.  There are pending before court in these proceedings the following applications by Mr Leelan Rukesh Marasinghe (“applicant”):

(1) by notice of application for leave to apply for judicial review issued herein on 24 July 2018 (“Form 86”) for leave to apply for judicial review (“JR leave Application”) to challenge the decision made by the Director-General of Civil Aviation (“putative respondent”) in April 2018 to maintain the suspension of the applicant’s Hong Kong class one medical certificate (“Review Decision”);

(2) by summons filed on 29 November 2019 for leave to:

(a) amend the Form 86 (“Amendment Application”); and

(b) file and serve the 3^rd affirmation of Wong Sai Kit and the 5^th Affirmation of the applicant in support of the proposed amendments to the Form 86 (“Further Evidence Application”);

(3) by summonses taken out on 2 July 2019 for specific discovery of all emails and other correspondence during specified periods between:

(a) Dr H K Kong (“Dr Kong”) and other members of the Original Review Panel (as defined below);

(b) Dr Kong and other members of the New Review Panel (as defined below); and

(c) between Dr Robert Cocks (“Dr Cocks”) and Dr Kong, relating to the Appeal (as defined below)

(“Discovery Applications”); and

(4) by praecipe for writ of subpoena ad testificandum also dated 2 July 2019 to adduce oral evidence from Dr Cocks (“Oral Evidence Application”).

LEAVE APPLICATION

Background leading to the Review Decision

2.  To put these applications in context, I refer to, and repeat hereinbelow, the summary of facts in [6] to [19] of the decision I handed down herein on 6 November 2019, allowing the applicant’s application for split hearings of the application for leave and the substantive judicial review (“Split Hearing Direction”) in variation of the direction for a “rolled up” hearing made by Anderson Chow J (as he then was) on 25 July 2018. Although such summary is based on the averments in the Form 86, unless otherwise qualified in this decision, the events mentioned under this heading are largely matters of record, which do not appear to me to be controversial. Where it is convenient, I also incorporate relevant material disclosed in the respondent’s evidence in opposition filed after the Split Hearings Direction which, likewise, seems to be controversial.

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

4.  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”).

5.  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.

6.  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 because it was over 2.5%.

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

(3) All other biomarkers tested on both 9 and 14 March 2016 were not elevated.

7.  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.

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

9.  Beginning from 27 April 2016, CX had suspended the applicant without pay.

10.  On 14 July 2016, the applicant appealed against the continued suspension of his medical certificate, i.e. the Original Decision (“Appeal”).

11.  This is a convenient point to explain how appeals are dealt with within the CAD prior to December 2017. In this regard, within the CAD, the Personnel Licensing Office (“PELO”) carries out and/or supervises the performance of the licensing functions. It forms part of the Flight Standards & Airworthiness Division (“FSAD”) of the CAD. The FSAD is led by the Assistant Director-General (Flight Standards) (“ADG(FS)”). There are 3 sections within the FSAD, namely (1) the PELO itself; (2) the Flight Standards Office (which is led by the Chief, Flight Standards (“C,FS”)); and (3) the Airworthiness Office (which is led by the Chief, Airworthiness Standards).

12.  The CAD, through the PELO, publishes a number of documents concerning procedures and standards that seek to comply with the ICAO Licensing Manual. The PELO publication that is relevant to this case is the Office Procedures Manual (“OPM”). The OPM is not a public document but an internal document within the CAD.

13.  The Appeal was initially handled in accordance with the procedures set out in Chapter 31 of the February 2014 version of the OPM (“2014 OPM”), more specifically, the extract entitled “2. Handling Request for Review on Medical Certification Matters” under Chapter 31 which provided, inter alia, that:

(1) a letter of appeal on medical certificate matters should be addressed to SMO(AM) (paragraph 2.3);

(2) SMO(AM) will carry out an initial investigation and submit a preliminary report to C,FS (paragraph 2.4);

(3) C,FS will set up a review panel comprising preferably at least the SMO(AM), one Government AMA and one non-Government AMA (paragraph 2.5);

(4) The review panel will make a final report to C,FA and advise if they have found any justifiable grounds for the appeal (paragraph 2.6); and

(5) The findings of the review panel must be endorsed by C,FS or ADG(FS) as determined by C,FS before the appellant will be advised in writing of the outcome of the appeal (paragraph 2.7).

14.  For the purpose of paragraph 2.5, it is CAD’s stated practice on an appeal relating to medical certification that the review panel would comprise, inter alia, 2 AMAs who have not been involved in the previous decisions in the case from which the appeal has arisen.

15.  The review panel originally constituted for the Appeal (“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.

16.  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.

17.  In the meantime, CX had terminated the applicant’s employment on 13 January 2017. 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.

18.  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.

19.  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.

20.  Following Dr Cocks’ resignation from the Original Review Panel on 8 February 2017, the CAD sought legal advice from the Department of Justice in order to ensure that the review mechanism was fair and appropriate.

21.  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 dated 27 July 2017 based on the CAD’s stated practice (see [14] 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.

22.  In the meantime, subsequent to the constitution of the New Review Panel and during the currency of the Appeal, in December 2017, the respondent revised and replaced Chapter 31 of the 2014 OPM with Chapter 31 of the 2017 version of the OPM (“2017 OPM”).

23.  Insofar as it is material, under Chapter 31 of the 2017 OPM, the applicant may object to the preliminary review of the case by SMO(AM) and to the appointment to the review panel an AMA who had been involved in the original decision of the case under review (paragraph 2.7). In this connection, it is worthy of note that after the New Review Panel was set up in July 2017, the applicant did through his solicitors object to the involvement of Dr Kong and Dr Lee in the New Review Panel but to no avail. However, such objection was made on the strength of the CAD’s practice as stated in [14] above and principles of natural justice, not Chapter 31 of either version of the OPM.

24.  In addition, the 2014 OPM expressly required the C,FS and/or the ADG(F,S) to indorse the findings of the review panel. Such requirement is deleted in the 2017 OPM. Instead, paragraph 2.10 of the 2017 OPM simply requires the C,FS and/or the ADG(F,S) to be kept informed of the review application on a regular basis and in writing. It is the applicant’s case that the new rule left Dr Kong in charge of the entire review process from beginning to end.

25.  It is the applicant’s evidence that he had not been informed that the Appeal was initially handled in accordance with the procedures prescribed in Chapter 31 of the 2014 OPM. Nor had he been advised of the replacement of Chapter 31 of the 2014 OPM by Chapter 31 of the 2017 OPM or the adoption of the 2017 OPM in the determination of the Appeal. In short, the applicant says that he was not made aware of the existence, content or application of these rules in his case until they were disclosed in Dr Kong’s affidavit filed on 25 October 2018.

26.  Coming back to the chronology, 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.

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

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

29.  The cumulative effect of the Original Decision and the Review Decision was to render the applicant unable to perform his licensed functions as a commercial pilot in Hong Kong, thereby leading to the termination of his employment with CX.

Proposed grounds for judicial review

30.  Against the abovementioned background, it was originally the applicant’s case that the Review Decision is reviewable by the court on the following 4 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 (“Apparent Bias Ground”);

(3) that the decision was Wednesbury unreasonable (“Unreasonable Ground”); and

(4) that the decision was illegal as the New Review Panel had fettered its own discretion (“Illegality Ground”).

31.  After the parties filed their respective written submissions, the respondent accepts that leave for judicial review can be granted in respect of Apparent Bias Ground. Meanwhile, the applicant has confirmed by the deletion of paragraphs 76 to 85 of the existing Form 86 that he will not pursue the Unreasonableness and Illegality Grounds. That is to say, on the question of leave, of the 4 original grounds, only leave for the Actual Bias Ground remains contentious.

32.  However, the applicant has, by paragraph 75A of the proposed Amended Form 86, articulated a new complaint about the procedure by which the Appeal was conducted which, he says, was “fundamentally unfair and in breach of natural justice” (“Natural Justice Ground”) based on the points identified as supporting the Apparent Bias Ground.

33.  It is the respondent’s position that no such new independent ground of challenge is currently pleaded in the existing Form 86 and that if and when the applicant makes a proper application to amend his Form 86, the court may deal with any such application at that stage, but not now.

Discussion

34.  This court can grant leave for judicial review only in respect of certain grounds and refuse leave on others: see e.g. B v Torture Claims Appeal Board [2015] 1 HKLRD 681, [7].

35.  In order for leave for judicial review to be granted, the applicant must demonstrate that he has a reasonably arguable case which enjoys realistic prospects of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR at [15]).

Is the Actual Bias Ground reasonably arguable?

36.  Mr Robert Whitehead SC (leading Mr Thomas Lee and Mr Justin Ismail), counsel for the applicant, cites a number of UK authorities including In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 at [38] that “actual bias” has been found, in the context of judicial decisions, “(1) where a judge has been influenced by partiality or prejudice in reaching his decisions; and (2) where it has been demonstrated that the judge is actually prejudiced in favour or against a party.”

37.  On the other hand, Ms Catrina Lam, counsel for the respondent, contends in her written submission, that there are potentially 2 types of cases of actual bias namely:

(1) first, where the decision-maker has a direct pecuniary, proprietary or personal interest in the outcome of the case; or

(2) second, where the decision-maker is shown to have been directly influenced by a fixed predisposition or predilection for reasons unconnected with the merits of the case and involving a closed mind which is not susceptible to any reasonable persuasion.

See Jackson v Thompsons Solicitors (A firm) [2015] EWHC 218 at §14.

38.  In response, Mr Whitehead counters that it would not be right to think that judicial review for a decision said to have been tainted by actual bias is limited to 2 rigid narrow categories. The better overall approach is to view the various tests of bias as ranging along a spectrum with direct proof of actual bias at one end and a reasonable suspicion that bias might have infected the decision at the other end. See De Smith’s Judicial Review (8^th Ed) at paragraphs 10-013 and 10-014.

39.  Counsel also refers to, and relies on, Bokhary PJ’s remark in Hebei Import & Export Corporation v Polytek Engineering Co. Ltd (1999) 2 HKCFAR 111 at [34]:

“In a context like the present, however, I think the courts cannot avoid the question of whether or not there was actual bias. They must decide the matter upon the answer to that question, thorny as such a question can be. I do not think that this is asking too much. After all, where the appearance of bias is strong enough, it can lead to an inference that actual bias existed.” (emphasis added)

40.  Hebei was followed in Granton Natural Resources Co Ltd v Armco Metals International Ltd [2012] HKCFI 1938 at [21] that “Bias can exist in different forms. In some cases, the line between apparent and actual bias could not readily be drawn. It is a matter of degree.”

41.  At the hearing, Ms Lam clarifies that the respondent is not contending that the finding of actual bias should be limited to two rigid narrow categories. She refers to In re Medicaments and Related Classes of Goods (No 2), supra, as stating a two-limb test, where if actual bias is not established, personal impartiality of a judge is presumed. The court will then go on to embark upon an objective assessment as to whether a fair-minded observer would conclude that there is a real possibility that the decision-maker was biased. Therefore, actual bias is subjective, whereas apparent bias is objective. She argues that such two-limb test is contrary to the test as two alternatives as pleaded by the applicant.

42.  On this basis, Ms Lam goes on to contend that the comment made by Bokhary PJ in Hebei Import & Export Corporation that apparent bias can be used to infer actual bias cannot be right, and the test for actual and apparent bias was not something that was canvassed, or an issue that was raised, before the court in that case. Even if apparent bias can lead to an inference of actual bias, this would be extremely rare and it would take an exceptional case for such an inference to arise.

43.  Counsel further suggests that the comment made by the court in Granton Natural Resources Co Ltd was to read down Bokhary PJ’s comment in Hebei Import & Export Corporation to emphasise that its effect cannot be too wide in the context of enforcement of arbitration awards.

44.  The above is of course just a skeletal summary of counsel’s submission on the Actual Bias Ground which, I believe, is adequate for the purpose of granting or refusing leave. The impression that I get from the submission before me is that there is still room for argument on the test for finding actual bias or the situations in which such a finding can be made and whether the facts of this case would support such a finding.

45.  Hence, notwithstanding Ms Lam’s able assistance for which I am grateful, I shall grant leave for judicial review on the Actual Bias Ground.

Was the Review Decision made in breach of natural justice?

46.  The proper approach to natural justice and procedural irregularity in the context of judicial review is well settled. In Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, Deputy High Court Judge Cheung (as his Lordship then was) had this to say:

“59. In my judgment, the position is as follows. Faced with a complaint based on non-disclosure of documents or material, the Court’s task in a judicial review is, first, to determine whether as a matter of fairness and natural justice, the documents or material ought to have been disclosed to the applicant by the decision-making body so as to afford the applicant an opportunity to respond to the documents or material. At this first stage, it is not necessary for the applicant to establish prejudice as a ground of judicial review: Boddington v British Transport Police [1999] 2 AC 143 at 174D-E (cited with approval in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at page 663 paragraph 40).

60. Secondly, if the Court comes up with an affirmative answer to the first question, it should proceed to the second stage of the matter by considering whether to exercise its discretion to quash the decision of the decision-making body below or grant some other appropriate relief, if any. At this second stage, the fact that there has been (ex hypothesi) a breach of procedural fairness is, of course, by itself a relevant and indeed a weighty consideration to be taken into account. However, at this second stage, the absence of prejudice, if such is the case, is also a relevant factor to be taken into account: Boddington v British Transport Police [1999] 2 AC 143; and Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653. In fact, as is demonstrated by the actual decision in Leung Fuk Wah v Commissioner of Police, if the non-disclosure did not produce a substantial prejudice to the applicant whatsoever, it would seem that the discretion of the Court would most likely, if not inevitably, be exercised against the grant of any relief: See page 668 paragraph 76 of the judgment, where the Court of Appeal observed that:

“Judicial review being a discretionary remedy, if Mr Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.”

See also 吳文演 v 人事登記審裁處 [2014] 1 HKLRD 1188 at [62].

47.  Applying such principle to the present case, subject to leave being granted for the amendment of the Form 86, the applicant should also be allowed to proceed with the Natural Justice Ground.

48.  In so holding, I have not lost sight of the respondent’s complaint that the applicant has not raised any breach of natural justice and procedural irregularity in the existing Form 86. Although such complaint has been incorporated in paragraph 75A of the proposed amended Form 86, the summons for the Amendment Application was not issued until 29 November 2019, giving the respondent just 1 working day to respond with the intervention of the weekend. The court should not have to consider whether leave for judicial review should be granted on the Natural Justice Ground before an application for leave to amend the Form 86 is made and allowed.

AMENDMENT APPLICATION

49.  This conveniently takes us to the Amendment Application.

50.  The amendments sought by the applicant are:

(1) to state his reliance on the revision and replacement of Chapter 31 of the OPM without informing the applicant in support of the Actual Bias Ground and the Apparent Bias Ground; and

(2) to add the Natural Justice Ground on the basis of largely the same facts relied on in support of the Apparent Bias Ground.

51.  It is trite that the court should allow all such amendments as are necessary to enable the real questions between the parties to be decided provided that the other side will not suffer any prejudice that cannot be compensated by an appropriate order as to costs.

52.  Applying such principle, the applicant should be allowed to amend. The amendments are not at all extensive or complicated. Given that we are at the leave stage, the respondent would not suffered any prejudice if, apart from a proper order as to costs, leave is given to it to respond by filing further affidavit(s).

Disposition

53.  For the above reasons, I grant leave to the applicant to commence judicial review proceedings in respect of the Review Decision on the Actual Bias Ground, the Apparent Bias Ground and the Natural Justice Ground.

54.  I also allowed the Amendment and Further Evidence Applications. The respondent shall have leave to file and serve affidavit evidence on the amendments and the evidence in support thereof within 28 days from today. The applicant shall thereafter have 28 days to file and serve evidence in reply, if so advised.

55.  As for the Discovery and Oral Evidence Applications, both parties seem to proceed on the basis that they should be dealt after the court has determined the Leave Applicant. Now that the court has decided on the scope of the judicial review, to save time and costs, the Discovery and Oral Evidence Applications shall be disposed of on paper. For such purpose, (1) the applicant shall lodge with the court and serve on the respondent written submission in support of such applications within 14 days from today; (2) the respondent shall lodge with the court and serve on the applicant written submission in opposition within 14 days thereafter; (3) the applicant shall lodge with the court and serve on the respondent written submission in reply if so advised within 7 days thereafter. There shall be no further submission without leave.

56.  In the meantime, the parties shall have liberty to approach my clerk to fix a date for the substantive hearing of the application for judicial review.

57.  I reserve the question of costs.

58.  Last but not least, it remains for me to thank counsel for their able assistance.

Mr Robert Whitehead SC, Mr Thomas Lee and Mr Justin Ismail, instructed by Haldanes, for the applicant

Ms Catrina Lam, instructed by the Department of Justice, for the respondent

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.  

Mr Thomas Lee, instructed by Haldanes, for the applicant

Mr Mark Chan and Cassandra Fung of the Department of Justice for the putative respondent