Ho Loy v. Director of Environmental Protection

HCAL 21/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 21 OF 2015

____________

____________

___________________

D E C I S I O N
___________________

INTRODUCTION

1.By this application for judicial review, Ho Loy (“the applicant”) seeks to challenge two decisions made by the Director of Environmental Protection (“the Director”), namely:-

(1) the decision to approve the environmental impact assessment report (“the EIA Report”) for the project entitled “Expansion of Hong Kong International Airport into a Three-Runway System” (“the Project”) dated 7 November 2014; and

(2) the decision to grant and issue an environmental permit, Permit No. EP-489/2014 (“the Permit”), for the construction and operation of the Project also dated 7 November 2014 (hereinafter collectively referred to as “the Decisions”).

2.On 5 February 2016, the applicant issued a summons (“the Summons”) requiring the Director to (i) make discovery by affidavit of the documents or classes or documents specified in Schedule 1 to the Summons, and (ii) produce for inspection and copying by the applicant of those documents or classes or documents.

3.It is common ground that the only substantive issue now remaining between the parties relates to the production of a single document known as the “PRD Plan”.

4.The Director objects to the production of the PRD Plan on two grounds, namely:-

(1) it is not relevant to the issues raised in the Form 86 and its production is not necessary for the fair disposal of those issues; and

(2) public interest immunity (“the PII Claim”).

5.In support of the PII Claim, the Director has produced a certificate signed by the Chief Secretary dated 26 April 2016 (“the Certificate”).  I shall come back to the contents of the Certificate later in this decision.

BRIEF BACKGROUND FACTS

6.In 2011, the Airport Authority Hong Kong (“AAHK”) formulated plans and conducted a public consultation with a view to the further expansion of the Hong Kong International Airport (“HKIA”).  As a result of that planning and consultation, AAHK prepared a “Master Plan 2030” in which two principal development options were put forward.  The first was to maintain and develop HKIA’s existing two-runway system.  The second was to expand the airport into a three-runway system.  The Master Plan 2030 recommended the adoption of the second option.

7.On 20 March 2012, the Chief Executive in Council ordered, inter alia, that:-

(1) approval in principle be given to AAHK’s recommendation to adopt the option of expanding HKIA into a three-runway system as the future development option for planning purposes; and

(2) AAHK be asked to proceed with the planning related to the development of the three-runway system, which included specifically the statutory environmental impact assessment, the associated design details, and the financial arrangements.

8.The Project is a designated project listed in Section B of Schedule 2 to the Environmental Impact Assessment Ordinance, Cap 499 (“the Ordinance”).  Accordingly, AAHK cannot construct or operate the Project without an environment permit for it issued under section 10 of the Ordinance.

9.The statutory scheme relating to the application for, and issue of, an environmental permit under the Ordinance is of some considerable complexity. For the present purpose, it suffices to mention that, generally speaking, in order to obtain an environmental permit under the Ordinance, the proponent of the project is required, amongst other things, to:-

(1) apply to the Director for an environmental impact assessment study brief to proceed with an environmental impact assessment study for the project under section 5(1)(a) of the Ordinance;

(2) prepare an environmental impact assessment report in compliance with the requirements of (i) the environmental impact assessment study brief issued by the Director under section 5(7)(a) of the Ordinance, and (ii) the technical memorandum applicable to the assessment issued by the Secretary for the Environment on 16 May 1997 (“the Technical Memorandum”) under section 16 of the Ordinance; and

(3) obtain the Director’s approval of the environmental impact assessment report under section 8 of the Ordinance.

10.On 28 May 2012, AAHK applied for an environmental impact assessment study brief from the Director pursuant to section 5(1)(a) of the Ordinance.

11.On 10 August 2012, the Director issued a study brief (“the Study Brief”) in respect of the Project pursuant to section 5(7)(a) of the Ordinance.

12.In due course, AAHK prepared the EIA Report pursuant to the Study Brief and Technical Memorandum.

13.On 17 April 2014, AAHK applied to the Director for (i) approval of the EIA Report under section 6(2) of the Ordinance, and (ii) an environmental permit in respect of the Project under section 10(1) of the Ordinance.

14.By a letter dated 7 November 2014, the Director approved the EIA Report under section 8(3) of the Ordinance.  Also on 7 November 2014, the Director granted the Permit pursuant to section 10 of the Ordinance.

15.On 6 February 2015, the applicant sought leave to apply for judicial review of the Decisions.  On 20 May 2015, Au J granted leave to the applicant to apply for judicial review.

16.As can be seen from the Form 86 dated 6 February 2015, four grounds of judicial review have been raised by the applicant in the present case, namely:-

(1) the Director acted unlawfully in approving the EIA Report in relation to the assessment of the potential and likely noise and air quality impacts of the Project;

(2) the Director acted unlawfully in approving the EIA Report in relation to the assessment of the ecological impact of the Project;

(3) the Director acted illegally and irrationally in granting the Permit; and

(4) the Director failed to give cogent or adequate reasons for the Decisions.

17.Only the first ground of judicial review is relevant to the present application.  In passing, I should mention that the applicant has indicated an intention to apply to amend the Form 86, which is objected to by the Director.  The application to amend has been directed to be heard on the first day of the substantive hearing of the application for judicial review (ie 5 July 2016).  Since no leave has yet been granted to the applicant to amend the Form 86, for the purpose of the present application, I shall focus on the existing, un‑amended Form 86.

THE PRD PLAN

18.The following description of the PRD Plan is taken largely from the Certificate.

19.In 2004, the Civil Aviation Administration of Chain (“CAAC”), the Hong Kong Civil Aviation Department (“CAD”) and the Civil Aviation Authority of Macao (“CAAM”) set up the “PRD Region Air Traffic Management Planning and Implementation Tripartite Working Group” (“TWG”) to formulate measures to rationalise the airspace structure and air traffic management arrangements in the PRD region. After conducting more than ten meetings, the TWG agreed upon the PRD Plan and announced the conclusion of the PRD Plan (without releasing its details) in 2007.

20.The objectives of the PRD Plan are to enhance the airspace structure and air traffic control arrangements in the PRD region so as to optimise the use of airspace and air traffic management efficiency.  The PRD Plan covers extensive scope of enhancement activities that essentially relate to the efficient operation and use of the airspace among the major airports in the PRD region.

21.In the Certificate, the following matters are stated:-

(1) The PRD Plan is a government to government agreement which contains confidential and highly sensitive information provided by the respective authorities to the TWG on a confidential basis.

(2) To facilitate frank exchange of ideas, sensitive information and data in an unreserved and open manner, which is critical to accurate analysis and constructive discussion of the subjects in point, the three parties have all along maintained confidentiality of the deliberation process as well as the contents of the PRC Plan, which represent the fruits of those discussions.

(3) The PRD Plan contains, for example, sensitive information concerning the airports in the three jurisdictions, as well as analysis and derivatives based on information such as air traffic forecast, analysis of strengths and comparative advantages of the commercial operators, defence and related information, interaction between civil and military flight operations, location of military airports, airspace structure and air traffic management operation of each jurisdiction, existing shortfalls and constraints, planned enhancement measures to airspace and air traffic management efficiency in individual jurisdictions, proposed flight paths within respective airspaces, etc.  Owing to the sensitivity of the information embedded in the PRD Plan, the whole document is treated as highly confidential as agreed by the three authorities.

(4) Nevertheless, having regard to the implications of the new measures arising from the PRD Plan on the aviation sector as well as the general public, the three parties have made announcements on some of the prominent initiatives in the PRD Plan which have been successfully implemented in the past, including (by way of examples):-

(a) the establishment of two additional handover points and corresponding air routes between the Guangzhou and Hong Kong Flight Information Regions (“FIRs”) to cater for flights overflying Hong Kong and landing in Guangzhou and Shenzhen;

(b) the establishment of new air routes for the eastern part of the Mainland and an additional handover point between Hong Kong and Guangzhou FIRs for flights operating between Hong Kong, Macao and the eastern part of the Mainland with effect from 7 January 2016; and

(c) adjustment of the Zhuhai airspace structure and establishment of peripheral flight paths in the PRD region.

(5) Prior agreements amongst the relevant governments had been reached before such announcements were made by way of press release.

PRODUCTION OF THE PRD PLAN IS NOT NECESSARY FOR DISPOSING FAIRLY OF THE CAUSE OR MATTER OR FOR SAVING COSTS

22.The applicant’s argument that the PRD Plan is relevant to the first ground of judicial review (namely, that the Director acted unlawfully in approving the EIA Report in relation to the assessment of the potential and likely noise and air quality impacts of the Project) is based essentially on the following matters (see the Form 86, paragraphs 87 to 141, and the 2^nd affirmation of the applicant filed on 12 February 2016, paragraphs 23 to 33):-

(1) The Project’s stated objective is to increase the air traffic capacity of HKIA. That increase in capacity depends upon the operational feasibility of a substantial number of further air traffic movements which, it has been determined, would require the construction of a third runway.

(2) The EIA Report is required to assess the environmental impact of that capacity increase by considering, inter alia, the number of aircraft, aircraft fleet mix, runway utilisation, the flight tracks to be used, and the number and type of aircraft which would utilize each flight track.  The EIA Report is also required to disclose the assumptions and their limitations, and the findings and calculations employed in arriving at that impact.

(3) In support of these requirements of the EIA Report, the applicant relies on, inter alia, the following provisions in the Study Brief and Technical Memorandum –

(a) Paragraph 3.5.3 of the Study Brief (relating to Documentation of Key Assumptions, Limitation of Assessment Methodologies and related Prior Agreement(s) with the Director) provides that:-

“The EIA Report shall contain a summary including the assessment methodologies and key assessment assumptions adopted in the EIA Study, the limitations of these assessment(s) methodologies/assumptions, if any, plus all relevant prior agreement(s) with the Director or other Authorities on individual environmental media assessment components. The proposed use of any alternative assessment tool(s) or assumption(s) have to be justified by the Applicant, with supporting documents based on cogent, scientific and objectively derived reason(s) before seeking the Director’s agreement. The supporting documents shall be provided in the EIA report.”

(b) Paragraphs 2.1.3 to 2.1.4 of Appendix C to the Study Brief (relating to the requirements for noise impact assessment) provide that:-

“Assumptions and Data adopted for assessment

2.1.3 The Applicant shall explicitly state assumptions made for deriving input data for the computational model, including but not limited to: (a) airport operational data including the number of aircraft, aircraft fleet mix, runway utilization, flight tracks, type of aircraft which utilize each flight track on an annual average daily-basis …

2.1.4  Validity of the above data shall be confirmed with Civil Aviation Department and documented in the EIA Report.”

(c) Paragraph 4.4.2 of the Technical Memorandum (relating to Quality of the EIA Report) provides that:-

“The quality of the EIA report shall be reviewed having regard to the guidelines in Annex 20 and in Section 4.3. The report shall be considered as adequate if there are no omissions or deficiencies identified which may affect the results and conclusions of the assessment. In particular, the following factors shall be considered:

...

(e) whether the assumptions and methodologies used are sound and adequate.”

(4) The assumptions as to flight tracks and the limitations of those assumptions are primarily set out in a report prepared by National Air Traffic Services (“NATS”), a United Kingdom air transport consultant engaged by AAHK.  The latest version of that report dated 3 August 2009 is titled “Airspace and Runway Capacity Analysis – Final Report (NATS) Phase 2 Report” (“the Phase 2 Report”).

(5) The Phase 2 Report gives prominence to a constraint on the projected capacity increase, namely, the use of airspace for HKIA flights and tracks in the PRD region which is not under the control of the Government of the HKSAR.

(a) In the Executive Summary, it is stated, inter alia, that –

“In order to realise the capacity increase associated with the commissioning of the third runway, the immediate airspace in the Pearl River Delta area must be significantly reorganized to accommodate the necessary procedures for the new runway and the planned capacity increases at the other airfields in the area. This will require cooperation amongst [CACC, CAD and CAAM] in the [TWG] to jointly develop and implement these changes. These changes are essential in order to achieve the capacity increases identified in this report.”

(b) In Section 5.2 (relating to Airspace & Airport Capacity), it is stated that –

(i) “It has been assumed that the airspace changes recommended in the Phase 1 report have been implemented. This could have been implemented as a stand alone project, but there will be benefits in developing an integrated program covering the Phase 1 changes and the revisions to the PRD airspace”;

(ii) “It has been assumed that the proposed changes to the PRD airspace are in place i.e. that Hong Kong traffic can operate in the airspace to the north and west and that all new inbound/outbound routes to/from HK are integrated with adjacent airfields i.e. Macao, Zhuhai and Shenzhen”; and

(iii)“Many of the operational procedures associated with a third runway ... are dependant on revisions to the PRD Airspace.  It is assumed that this work will go hand in hand with the physical development of the airport infrastructure and that the airspace changes will be in place in a timely manner to support the opening of the new runway. This is considered to be essential in order to achieve the capacity increases identified in this report.  Without the airspace changes, it is unlikely that the third runway will deliver any capacity increases over and above those identified in the Phase 1 report”.

(c) In Section 7.1 (relating to Annual Capacity), it is further stated that –

“As a result of these considerations, it would appear that a daily capacity in the range 1650 to 1800 movements is achievable. Using the Design Day/Annual ratio of 0.029 supplied by AAHK, this would provide an annual capacity in the range of 570,934 to 622,837.

As with the Phase 1 report, the runway capacity is dependant on the airspace capacity.  In order to achieve these capacity figures, the airspace development and other supporting infrastructure such as staff and equipment must be available in addition to the ground infrastructure of taxiways, aprons and terminals etc.”

(6) Thus, the crucial assumption made in the Phase 2 Report  underlying the projected increased annual capacity of up to 622,837 air traffic movements for HKIA is that the proposed changes to the PRD airspace will be in place, so that Hong Kong traffic can operate on tracks in the airspace to the north and west not presently available for such traffic (the “Additional Airspace”) and that all new inbound/outbound routes to/from HK are integrated with adjacent airfields i.e. Macau, Zhuhai and Shenzhen (“the PRD Airspace Assumption”).

(7) However, in the EIA Report, the PRD Airspace Assumption and its limitations are only partially recognised and somewhat under-emphasised:-

(a) In paragraph 2.3.6.6 (relating to Optimisation of Pearl River Delta (PRD) Airspace), it is stated that –

“There are queries as to whether the busy PRD airspace would effectively cap the number of flights that would be permitted to arrive / depart via HKIA, thereby offsetting any increase in HKIA runway capacity… While PRD airspace is busy during certain periods of time, it has not been a constraint to HKIA from an overall development of air services perspective. There is a plan agreed among relevant civil aviation authorities of Mainland, Macao and Hong Kong to address the issues relating to optimising PRD airspace. Thus, it is not expected that growing usage of PRD airspace would affect the viability of capacity expansion at HKIA.” [emphasis added]

(b) In paragraph 2.3.7.5 (relating to Restrictions due to Air Jurisdictions and Air Services Agreements), it is stated that –

“... In the case of Hong Kong and any of the PRD airports, the fact that they do not belong to the same administrative region further complicates matters as they have separate governments, administrative systems, currencies, border controls and immigration requirements, air services agreements, airport operators, stakeholders and designated and operating airlines.”

(c) Further, in paragraph 3.2.2.4 (relating to Topography, Territorial Boundaries and Anthropogenic Structures), it is stated that –

“Territorial boundaries affect runway operations by restricting the permitted flight routes for arrivals and departures from outside of Hong Kong Special Administrative Region (HKSAR). This constraint is however partially negotiable.”

(8) Notwithstanding the aforesaid potential constraint on the projected capacity increase for HKIA, the EIA Report adopts the NATS conclusion in paragraph 7.1 of the Phase 2 Report that a three runway system of the type advocated for HKIA could provide a practical maximum of 1,800 movements per day and around 620,000 movements per year.

(9) The environmental impacts described and assessed in the EIA Report are founded on the number, type and frequency of air traffic movements, including the use of air tracks in the Additional Airspace, underlying the aforesaid capacity increase.

(10) In the Form 86, at paragraphs 110 to 115, the applicant complains that:-

(a) No plans or agreements between AAHK or the Hong Kong Government (by CAD or otherwise) with other relevant civil aviation authorities which would provide for the airspace optimisation required by the Project as mentioned in the Phase 2 Report were provided in the EIA Report, in breach of paragraph 3.5.3 of the Study Brief.

(b) There was no reference at all to the limitations of the key NATS assumptions in the summary at paragraph 19.16 (or elsewhere in the EIA Report).  The supporting documents for the assumptions themselves and the documents supporting AAHK’s “expectation” and the agreement to discuss the airspace issues set out in paragraphs 2.3.6.6 and 3.2.4.4 were also not provided. Accordingly, the EIA Report fails to meet the requirement of paragraph 3.5.3 of the Study Brief.

(c) Nothing was provided in the EIA Report to enable the Director on review to conclude that the key NATS assumptions were “sound or adequate” as required by paragraph 4.4.2(e) of the Technical Memorandum.

(d) The Director did not provide any reasons as to how she could have reached the conclusion that the said assumptions were sound or adequate.  The only evidence in the EIA Report was AAHK’s own “expectation” set out in paragraph 2.3.6.6 and AAHK’s bald assertion that those restrictions were “partially” negotiable in paragraph 3.2.2.4 of the EIA Report.

(e) Lastly, the EIA Report did not assess any of the potential or likely environmental impacts of the Project, in particular noise and emissions, arising from increased flight operations at HKIA using a third runway in the scenario where the PRD Airspace Assumption fails to materialise in time or at all.

23.In support of the present application, Mr Nigel Kat SC argues that the PRD Plan is relevant and necessary for the fair disposal of the cause or matter because:-

(1)  The PRD Airspace Assumption is a “key” assumption on which both the model used for the three-runway system, and the environmental impact assessment in the EIA Report, depend.  The matters underlying the PRD Airspace Assumption are aviation matters required to be stated and confirmed by CAD under paragraphs 2.1.3 and 2.1.4 of the Study Brief.  As such, the PRD Plan is the piece of evidence which could show whether or not that assumption had been agreed at the time of the Report.

(2)  It is highly relevant to whether or not the agreement (if any) in the PRD Plan is in terms which would comply with that assumption: do those terms confirm or set out that reorganisation and the use of the air tracks by Hong Kong arrival and departure traffic, and if so, when and on what terms as to time and numbers, and whether in a timely fashion for expansion as required by the assumption?  Without knowing the terms in which those tracks are dealt with in the PRD Plan (or the nature of the commitment, if any, as to their availability), no decision can be taken as to whether the PRD Plan “validates” the assumption.

24.On the other hand, Mr Benjamin Yu SC (together with him, Ms Eva Sit, for the Director) submits that the PRD Airspace Assumption is not a “key” assumption adopted in the EIA Report for the assessment of the potential or likely noise and air quality impacts of the Project.   As I understand it, the Director’s argument is that while the PRD Airspace Assumption may be an important assumption regarding the “capacity increase” for HKIA arising from the adoption of a three-runway system, the environment impact assessment (whether as regards noise or air impact) was an assessment of the “worst” case scenario where the PRD Airspace Assumption holds good.  Should the PRD Airspace Assumption fail to materialise in time or at all, the projected capacity increase for HKIA would not be achieved, with the consequence that the aircraft emissions projected under the worst case scenario would also not materialise.

25.Whether the Director’s argument that the PRD Airspace Assumption is not a “key” assumption for the environment impact assessment carried out by AAHK as set out in the EIA Report, and whether the applicant’s complaints raised in paragraphs 110 to 115 of the Form 86 are valid, are matters to be determined in the substantive application for judicial review.

26.Assuming, for the present purpose only, that the applicant is correct in the argument that the PRD Airspace Assumption is a “key” assumption as alleged, it seems to me clear that the validity of the applicant’s aforesaid complaints can readily be determined upon a reading of the EIA Report and Phase 2 Report (as well as the evidence already filed on behalf of the Director in these proceedings) and consideration of the relevant requirements set out in the Study Brief and Technical Memorandum.  Put in another way, the contents of the PRD Plan are not necessary to enable the applicant to make good her aforesaid complaints.

27.In passing, there is one other matter that I wish to mention.  Mr Kat argues that the EIA Report itself is contradictory in that it represents, on the one hand, that the PRD Airspace Assumption had been confirmed by the CAD but, on the other hand, there are indications in the EIA Report that there was no agreement in the PRD Plan on the reorganisation of the airspace and that the allocation of further air tracks in the PRD for arrivals to and departures from Hong Kong was subject to further negotiation and implementation.  Mr Kat further submits that the contemporaneous documentary evidence (ie the Phase 2 Report) suggests that there was no agreement, or concrete agreement, on those matters (as now allegedly confirmed by the Certificate), while CAD does not appear specifically to have confirmed the PRD Airspace Assumption.  In my view, it is clear from the 1^st and 2^nd affidavits of Cheng Po Keung filed on 10 August 2015 and 23 March 2016 respectively that what CAD confirmed with the Director were the “flight tracks” in the drawings in the EIA Report, having compared them against the flight tracks in the PRD Plan and been satisfied that the flight tracks in the EIA Report aligned and were consistent with those in the PRD Plan.  Whether the EIA Report fails to accurately or fairly set out the true position regarding the extent of CAD’s confirmation is a matter which can be further explored in the substantive application for judicial review.

THE PRD PLAN SHOULD NOT, IN ANY EVENT, BE PRODUCED ON THE GROUND OF PUBLIC INTEREST IMMUNITY

28.It is trite that the administration of justice requires that all facts and matters relevant to a legal dispute should, generally speaking, be put before the court.  There are, however, well recognised exceptions to this principle.  In particular, there may be occasions when the public interest in the administrative of justice must give way to a greater public interest to avoid harm to the society as a whole: see Chu Woan Chyi & Others v Director of Immigration [2006] 4 HKLR 280, at paragraph 72 per Hartmann J (as he then was).

29.It has been said that public interest immunity may arise in cases involving national security, international relations, workings of central government and allied branches of public service, the police and armed forces, and informants: see Epoch Group Limited v Director of Immigration, HCAL 43/2010 (10 November 2010), at paragraph 16 per Andrew Cheung J (as he then was).

30.Whether the court should accede to a claim of public interest immunity raised by the government to the effect that the disclosure or production of any document would cause such harm to the society that its disclosure or production should be withheld notwithstanding its relevance to the issue(s) in the litigation before the court involves a delicate balancing exercise to be carried out.

31.In relation to such balancing exercise, both parties have referred me to the decision of the House of Lords in Conway v Rimmer [1968] AC 910, at 952 per Lord Reid:-

“I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence. and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister's view: full weight must be given to it in every case, and if the Minister's reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail. But experience has shown that reasons given for withholding whole classes of documents are often not of that character.”

32.In the same case, Lord Morris of Borth-y-Gest said the following (at 957):-

“It is said that a statement by the executive to the effect that the public interest requires that a document should be withheld is a statement upon a matter peculiarly within the knowledge and competence of the executive government and must therefore be accepted by a court. A court would always pay the greatest heed to a statement that production of a document was not in the public interest and in most cases would be likely to give effect to it. There are many matters upon which the executive will be likely to be best qualified to form a view. It will be easy for a court to recognise this and to give full weight to this consideration. The court, however, will be in a position of independence and will as a result often be better placed than a department to assess the weight of competing aspects of the public interest including those with which a particular department is not immediately concerned.”

33.In the present case, the Chief Secretary has stated, in the Certificate, that:-

“15. Disclosure of any part or details of the PRD Plan beyond what the respective governments have consented to and already disclosed to the public will severely damage the mutual trust and the current well-established cooperation and relationship built over the years among the three administrations.

16. Furthermore, the loss of trust would immediately jeopardize the ongoing coordination and implementation of the enhancement measures in the PRD Plan, conduct of routine business amongst the three parties as well as other civil aviation matters. The possible negative consequences would include (i) reluctance to accommodate requests by CAD on ATC [air traffic control] operational matters that require frequent mutual collaboration and; (ii) indifferent or uncooperative attitude towards discussions on future air traffic planning and airspace management arrangements, resulting in significant constraints on ATM [air traffic management] efficiency within the PRD region. A less efficient ATM arrangement in the PRD region would have a negative impact on the operation of HKIA such as constraints to further enhance the number of air traffic movements to the future 3RS and also create a ripple effect to other sectors of Hong Kong’s economy, including logistics, tourism, etc. In the longer run, there is a real risk that our breach of mutual trust would cause the aviation authorities of the Mainland and Macao to cease cooperation with Hong Kong resulting in a halt to the implementation of enhancement measures in the PRD Plan including those crucial to the operation and efficiency of air traffic operating at HKIA and transiting Hong Kong FIR.

17. Disclosure or production of the PRD Plan by the HKSAR Government would also seriously undermine the credibility of HKSAR Government both to our neighbouring administrations, as well as our international counterparts and foreign governments in a wider spectrum of areas such as trade and security, whenever confidentiality of information/discussion is required.”

34.By training and experience, a judge is well versed in determining specific factual and/or legal disputes between the immediate parties to an action.  However, inter-government relations and macro economic and political issues are generally beyond the knowledge or expertise of the judge.  The matters mentioned by the Chief Secretary in paragraphs 15 to 17 of the Certificate, some of which concern delicate or sensitive inter-government relations in the aviation and other fields, are plainly matters of “a character which judicial experience is not competent to weigh” (per Lord Reid in Conway v Rimmer), and thus the Chief Secretary’s view ought to prevail.

35.In reaching this conclusion, I have also taken into account the fact that the present claim is made not in respect of a class of documents, but in respect of a single document only.

36.There is one other matter that I wish to mention here.  In the Certificate, it is said that the PRD Plan also contains “defence and related information, interaction between civil and military flight operations, location of military airports”.  Since the Chief Secretary has not specifically referred to this aspect of the PRD Plan in paragraphs 15 to 17 of the Certificate in support of the PII Claim, I do not propose to express any view on whether the claim should also be upheld on the ground that the PRD Plan contains such information.

37.In all the circumstances, I consider that the Director should not be required to produce the PRD Plan on the ground of public interest immunity, even if I were to come to the view that production of that document would otherwise be necessary for the fair disposal of the present application for judicial review.

DISPOSITION

38.In view of the fact that some of the documents and information sought by the applicant under the Summons have already been produced or provided by the Director, I would make no further order on the Summons, save that I would make the following costs order on a nisi basis:-

(1)  the costs of the hearing of the Summons on 18 May 2016 be to the Director, to be taxed if not agreed, with certificate for two counsel;

(2)  save as aforesaid, the costs of and occasioned by the Summons be costs in the cause; and

(3)  the applicant’s own costs are to be taxed in accordance with legal aid regulations.

39.Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.

Mr Nigel Kat, SC and Mr Ernest C Y Ng, instructed by Yip, Tse & Tang, assigned by Director of Legal Aid, for the applicant

Mr Benjamin Yu, SC and Ms Eva Sit, instructed by Department of Justice, for the respondent