Ho Kar Hei v. Director of Information Services
Read the full judgment text of HCAL 98/2016 on BabelCite. This High Court CFI judgment was delivered on 14 November 2018.
1. This is the respective leave applications of Ms Ho (under HCAL 98/2016) and Ms Xu (under HCAL 99/2016) to apply for judicial review.
Cited by 1 case · Cites 5 cases
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HCAL 98 & 99/2016 [2018] HKCFI 2517 HCAL 98/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 98 OF 2016 _______________
AND HCAL 99/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 99 OF 2016
Before: Hon Au J in Court Date of Hearing: 16 June 2017 Date of Judgment: 14 November 2018 ________________________ J U D G M E N T ________________________ A. INTRODUCTION 1.This is the respective leave applications of Ms Ho (under HCAL 98/2016) and Ms Xu (under HCAL 99/2016) to apply for judicial review. 2.Ms Ho was the Chief Editor of Varsity, an English magazine run by the staff and students of the School of Journalism and Communication at the Chinese University of Hong Kong. She herself is also a student of the School of Journalism and Communication. 3.Ms Xu was the Deputy Chief Editor of San Po Yan (新報人), a Chinese student news publication of the Baptist University. She is also a student of the Baptist University. 4.In both of the proposed judicial reviews, the applicants seek to challenge the decisions by the Director of Information Services (“the Director”) to refuse the student reporters of Varsity, U-Beat Magazine (大學線月刊)[1] and San Po Yan access to the press area of the designated Media Centre for a by-election of the Legislative Council (“the LegCo”) held in February 2016 and another press event held in August 2016 for the LegCo’s General Election to be held in September 2016. I will deal with these events in greater details below. 5.It is not disputed for the present purposes that at that time, the challenged decisions were made by the Director pursuant to a “policy” (as described by Ms Ho) adopted by him to have a blanket exclusion of university student media from, inter alia, government press conferences or other official activities. 6.It is noted that Mr Jat SC for the Director prefers to describe the “policy” as a practice adopted by the Director instead of a policy. For present purposes, it does not really matter whether one describes it as a policy or practice. Purely for convenience, I would adopt the term “University Student Media Policy” used by Ms Ho to refer to the Director’s practice at that time. 7.The existence of the “University Student Media Policy” is supported by, among others, a letter by the Director dated 24 May 2016 in reply to Ms Ho’s email dated 6 May 2016 in seeking explanations as to why the student magazine’s reporters were refused access to the press area in the above events. The Director’s letter stated as follows:
8.Both applicants seek an order of certiorari to quash the decisions, and a declaration that the decision are unconstitutional as they breached Article 27 of the Basic Law of the HKSAR (“the Basic Law”) and Article 16 of the Hong Kong Bill of Rights (“HKBOR”), which guarantee the right to freedom of expression and freedom of press. 9.Ms Ho (in HCAL 98/2016) further seeks separate declarations that (a) the University Student Media Policy (which underlined the above decisions); and (b) the “policy” said to be also adopted by the Director to deny online media reporters from access to public activities conducted by government departments (for convenience, I adopt Ms Ho’s description of this as the “Online Media Policy”), are similarly unconstitutional as they are similarly in breach of Article 27 of the Basic Law and Article 16 of the HKBOR. 10.Pursuant to the court’s directions, the Director as putative respondent filed a Consolidated Initial Response dated 18 October 2016 to oppose leave. 11.At the forefront of the grounds of opposition is that the intended judicial reviews seeking to challenge the decisions, and the Student Media Policy that underlined the decisions, have already been rendered academic and would serve no useful purpose. This is so because the Director has since September 2016 adopted a new practice (or a policy) regarding student reporters’ access to government press events. Further, Ms Ho in any event simply has no sufficient locus or interest to bring a challenge against the Online Media Policy. Finally, and in any event, the grounds of challenge have no arguable merits as the rights to freedom of expression and press (which are not absolute rights) had not been demonstrated to be infringed by reason of the decisions. B. BACKGROUND 12.Both cases arise out from the same background. They can be shortly summarised as follows. 13.The 2016 Legislative Council New Territories East Geographical Constituency By-Election (“the By-Election”) was held on 28 February 2016. On that day, a media centre was set up at Tiu King Leng Sports Centre. Inside that media centre is a designated media working area (“the DMWA”). 14.It is alleged by the applicants that the reporters of Varsity, U-Beat Magazine, San Po Yan and Inmediahk were refused access to the DMWA after presenting their press credentials. The staff members allegedly told them that “only invited media” could enter the DMWA, “no entry for those without media accreditation”, and “student newspapers should queue in the public area queue”. 15.It is not in dispute that Varsity, U-Beat Magazine and San Po Yan were duly registered under the relevant provisions of the Registration of Local Newspapers Ordinance (Cap 268) and paid the prescribed annual fees stipulated in the Newspaper Registration and Distribution Regulations (Cap 268B). On the other hand, Inmediahk (the putative interested party in HCAL 98/2016) is an online only media not registered under Cap 268, and solely disseminates information via the Internet. 16.Following various complaint letters and the LegCo questions, the government replied the following:
17.The two notices of application for leave to apply for judicial review were taken out on 27 May 2016. C. THESE LEAVE APPLICATIONS C1. Are the proposed intended judicial reviews academic 18.It is well established that the court generally would not deal with public law challenges in judicial review the issues of which have been rendered academic. See: Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, paragraph 20; Kwok Cheuk Kin v Chief Executive of Hong Kong & Another [2015] 6 HKC 22. 19.In this respect, it is however also well recognised that the court can in certain circumstances entertain a judicial review which has become “academic” following the principles laid down in Chit Fai Motors v Commissioner for Transport at paragraph 20(2) - (4):
20.As mentioned above, it is the Director’s position that he has since September 2016 adopted a new practice (or in Ms Ho’s words, a new policy) (for convenience, I would call this “the New Policy”) in relation to allowing university journalism students access to major government press conferences and medial events. The New Policy is that for selected government media events of considerable public importance, with prior notification by the ISD, a total of not more than four journalism students from each of the seven local post-secondary institutions will be admitted into designated press areas at any one point in time. 21.In fact, as pointed out by Mr Jat for the Director, the New Policy has since been applied in various events, namely, the 2016 LegCo General Election which took place on 4 September 2016, the Policy Address in January 2017, the Budget in February 2017 and the Chief Executive Election in March 2017. 22.As such, Mr Jat submits that no useful purpose would be served for the court to continue to hear and determine a challenge against the constitutionality of the University Student Media Policy, which since September 2016 is no longer in existence and applied. The same applies to any challenge against the Director’s decisions which were made pursuant to the then University Student Media Policy. 23.These are persuasive submissions. 24.However, Mr Pun SC (for Ms Ho) and Mr McCoy SC (for Ms Xu) both submit that the proposed challenges are not academic. I will deal with their submissions in turn below. 25.Mr Pun’s arguments run on the following lines:
26.With respect, I am unable to agree with Mr Pun. 27.In my view, in whichever way one looks at it, the New Policy is a different policy or practice from the University Student Media Policy. Under the New Policy, university journalism students are permitted to have access to various major government press conference or media events, when under the previous policy, no such students would be allowed access to any government press conference or media. 28.Mr Pun’s contention that the New Policy is only the Director’s application of exception to the University Student Media Policy is without merit. It is firstly inconsistent with Mr Pun’s fundamental complaint in the proposed grounds of judicial review that the old policy amounted to a blanket refusal (meaning no discretion and no exception) to allow student journalists to access government press events (and hence a disproportionate unjustified restriction of freedom of press). Secondly, it is also incorrect as a matter of analysis for the same observations I have made at paragraph 27 above. 29.Mr Pun seeks also in his submissions to demonstrate why the New Policy in any event may arguably still amount to unjustified infringement of the freedom of expression and press. 30.With respect to Mr Pun, I do not think these submissions assist him:
31.I therefore reject Mr Pun’s arguments. 32.Mr McCoy SC accepts that there is a new practice under the New Policy. However, leading counsel submits that the new practice still infringes the freedom of press protected under Article 16(2) of HKBOR and Article 27 of the Basic Law. 33.Mr McCoy has further sought to argue that the determination under Ms Xu’s present proposed judicial review in relation to the now replaced University Student Media Policy “will have legal consequences regarding future government conduct”. He argues that given that the Government has adopted a “flip-flop” position and changed its practice apparently due to the present intended judicial reviews, it may well revert back to the old practice at a later time. Mr McCoy therefore says that the declarations currently sought in the proposed judicial review have their constitutional importance to guide the future conduct of the government by declaring “the illegality of past”. The proposed judicial review will still serve useful purpose. The court should entertain it. 34.With respect, I am also not persuaded by these submissions. 35.In relation to the contention that the present judicial reviews should still be entertained to challenge the New Policy, I repeat my reasons at paragraph 30 above and reject it. 36.Insofar as the argument that based on the alleged Government’s “flip-flop” practice and thus there is a chance that it would go back to the old policy is concerned, this is nothing more than a mere speculation and assertion. I do not think the court should entertain these proposed judicial reviews for the speculated allegation that the government may in the future “flip-flop” or return to its previous practice. 37.In the premises, I agree with Mr Jat that, by the time of this leave application hearing, the proposed judicial review challenges against the University Student Media Policy have already been rendered academic, and the court should not entertain it. 38.Having reached such conclusion, it is both unnecessary and inappropriate for me to consider the other substantial arguments advanced by the parties relating to the merits of the proposed grounds of challenge. 39.Leave to apply for judicial review to challenge the University Student Media Policy under both applications should therefore be refused. C.2 The Online Media Policy 40.This is a challenge made only by Ms Ho in HCAL 98/2016. 41.Mr Jat opposes the leave application in relation to Ms Ho’s proposed challenge to the Online Media Policy firstly on the ground of lack of standing. Leading counsel submits that Ms Ho is a student journalist, and not a member of an online media organisation. Hence she simply does not have the necessary “sufficient interest” required under Order 53, rule 3(7) of the Rules of the High Court to challenge the Online Media Policy. 42.Ms Ho (in her Form 86 at paragraphs 66 - 69) seeks to justify her standing to challenge the Online Media Policy by the following reasons:
43.However, at the hearing, Mr Pun has confirmed that he will no longer pursue this challenge against the Online Media Policy, given the existence of another set of proceedings under HCAL 96/2017, whereby the Hong Kong Journalists Association has been granted leave to challenge, among others, also the Online Media Policy. 44.In light of this latest position at the hearing, it is not necessary for the court to further consider this ground. 45.However, I would like to emphasize that, had it been necessary for the court to deal with this issue, applying the principles laid down in Re Wong Chi Kin (CACV 80/2014, Lam VP, Cheung and Yuen JJA, 26 September 2014) at paragraph 11, I would be inclined to conclude that Ms Ho lacks the necessary sufficient interest to bring a challenge against the Online Media Policy in this proposed judicial review for the following reasons:
D. DISPOSITION 46.For all the above reasons, I refuse the leave applications of both Ms Ho and Ms Xu. 47.As to costs, the principles guiding the court’s exercise of discretion in costs in an unsuccessful contested leave application have been laid down in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, 852 at paragraphs 17(1) - (6) per Ribeiro PJ. The general rule is that the starting position should be that there is no order as to costs unless there are good reasons to justify an adverse costs order. 48.I do not find any good reasons to depart from the general starting position, in particular given I have refused the leave applications substantially on the basis that the matters under the proposed challenge have become academic in relation to events that happened after the filing of the leave applications. I therefore further make an order nisi that there be no order as to costs in these applications. Unless any of the parties applies to vary it by summons, this order shall become absolute after 14 days. 49.Lastly, I thank counsel for their assistance.
Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Ho, Tse, Wai & Partners, for the applicant in HCAL 98/2016 Mr Gerard McCoy SC and Mr Albert NB Wong, instructed by Ho, Tse, Wai & Partners, for the applicant in HCAL 99/2016 Mr Jat Sew-tong SC and Mr Jin Pao, instructed by the Department of Justice, for the putative respondent in HCAL 98/2016 and HCAL 99/2016 The putative interested parties in both actions, absent [1] A Chinese publication of the Chinese University’s School of Journalism and Communication. | |||||||||||||||||||||||||||||||||||||||||||||||||||
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Further hearings and rulings under HCAL 98/2016