The Hong Kong Journalists Association v. The Commissioner of Police and Another

HCAL 2915/2019

[2020] HKCFI 3101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2915 OF 2019

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Before: Hon Chow J in Court

Date of Hearing: 17 April 2020

Date of Further Submissions from the Applicant: 24 November 2020

Date of Judgment: 21 December 2020

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J U D G M E N T

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SUMMARY

1.The remaining part of this application for judicial review by The Hong Kong Journalists Association (“HKJA”) to be considered by the court concerns what has been referred to as “Decision (1)” in the Form 86, namely, “[t]he failure of the Hong Kong Police Force … to facilitate, and not to hinder, lawful journalistic activities in the course of public order events[1] on and after 12 June 2019, and the failure of the Commissioner to address a catalogue of operational deficiencies in that connection”[2].

2.In relation to Decision (1), HKJA seeks the following declaratory relief in the Form 86:

(1)  a Declaration that the Hong Kong Police Force (“the Police”) has acted unlawfully in failing to facilitate, and in certain cases actively hindering, lawful journalistic activities in the course of public order events on and after 12 June 2019, in breach of Articles 27 and 28 of the Basic Law (“BL”), and Articles 3 and 16 of the Hong Kong Bill of Rights (“BOR”); and

(2)  a Declaration that the Commissioner of Police (“the Commissioner”), in failing or refusing to address the catalogue of operational deficiencies with regard to facilitating lawful journalistic activities in the course of recent public order events on and after 12 June 2019, has breached BL 27 and BOR 16.

3.HKJA relies upon 13 Journalist Statements[3] together with photographs and contemporaneous video evidence in support of the alleged failure on the part of the Police to facilitate, and not to hinder, lawful journalistic activities.  The Commissioner disputes the allegations raised in the 13 Journalist Statements against the Police.  The Commissioner does not categorically deny that there might have been breaches of the “Duty”[4] on the part of police officers on some occasions, but contends that the fact that “some police officers might have allegedly breached the Duty in specific instances” does not mean that the Police has breached the Duty on a systemic level[5].

4.HKJA expressly states that it does not ask the court to make any findings of fact in respect of the allegations raised in the 13 Journalist Statements against the Police[6]. HKJA also accepts that the court will not determine whether the contents of the 13 Journalist Statements have been proven to be true in the absence of cross-examination of the authors of those statements[7].  Instead, HKJA asks the court to treat the Journalist Statements as “assumed facts” and/or “matters of which there is prima facie evidence”, and proceed on such basis to grant the declaratory relief sought.

5.HKJA’s approach is unorthodox.  Further, there is little or no practical utility in granting the declarations sought the validity of which is dependent on the truth of the “assumed facts”.  Once HKJA accepts, correctly, that the present application is not the appropriate forum for resolving the numerous and substantial disputes of fact arising from the Journalist Statements, it would not be appropriate for the court to exercise its discretion to grant the declarations in this case.

6.If any journalist considers that he/she has been subjected to unlawful ill-treatment by police officers and wishes to obtain legal remedies, the proper course to take would be to commence an ordinary writ action against the Commissioner, or the Government, to claim damages and such declaratory relief as may be may appropriate to his/her case.  Each action will have to be determined by the court on the basis of its own facts and circumstances in accordance with the usual process of the court.  The court neither encourages nor discourages any such action to be taken.  Whether to do so is a matter entirely for the journalist concerned.

THE APPLICATION

7.The court has previously given a brief summary of HKJA’s basis of the present application in a judgment handed down on 19 November 2020 ([2020] HKCFI 2882), and shall not repeat the same here.  It is HKJA’s case, as evidenced by the 13 Journalist Statements together with photographs and contemporaneous video evidence, that in the course of carrying out their reporting duties in relation to the public order events, journalists have been subjected to ill-treatment by police officers, including being:

(1)  shot with rubber bullets and “beanbag” rounds;

(2)  repeatedly struck by police officers with truncheons and shields;

(3)  targeted with tear gas, both fired from tear gas launchers and hand-thrown canisters, both at close range;

(4)  pepper-sprayed, and shot with “pepper-ball” projectiles;

(5)  struck by bursts of water discharged from high-powered water cannon;

(6)  arrested or threatened with arrest;

(7)  subjected to verbal abuse;

(8)  subjected to tactics designed to frustrate proper reporting of police operations, including the use of high intensity lights and strobe lighting to interfere with visual recording equipment, and exclusion from relevant scenes and locations; and

(9)  repeatedly and systematically met with refusals by police officers purporting to exercise public powers to produce a warrant card, including by officers either wearing police uniforms without any visible unique identification markings, or plain clothes police officers discharging non-covert duties (eg when making arrests, dispersing crowds or clearing areas).

8.According to HKJA, the 13 Journalist Statements are only a sample of the many complaints received by it, and represent a consistent, widespread and systemic pattern of police tactics that are adverse to, and interfere with, constitutionally protected journalistic activities[8].  For the purpose of this judgment, it is not necessary to set out the detailed facts and allegations against the Police contained in the 13 Journalist Statements, not least because, as earlier noted, HKJA does not ask the court to make any findings of fact in respect of the allegations raised against the Police.  It is also not possible for the court to resolve the factual disputes in the absence of cross examination of the 13 Journalists.  In this judgment, the court makes no findings on the veracity of the allegations against the Police contained in the 13 Journalist Statements.

9.HKJA further alleges that a raft of complaints made to the Commissioner by HKJA, and by individual journalists and media organisations, have been either ignored or baldly denied by the Commissioner and/or his senior officers.  These complaints have been made by HKJA, Hong Kong Press Photographers Association (“HKPPA”), media organizations, journalists and human rights groups publicly, or directly to the Chief Executive and/or the Commissioner.  The details of the complaints are set out in §§27 and 29-35 of the Form 86.

10.HKJA contends that the Police is under a public law duty arising from, inter alia, BL 27 and BOR 16, to facilitate lawful journalistic activities.  In the Form 86, HKJA argues that this duty means that:

(1)  The Police must take appropriate operational and individual measures to facilitate journalistic activities;

(2)  The Police employing force must always ensure that they distinguish between journalists and other attendees at public order events;

(3)  Any force deployed by the Police must not be indiscriminate.  The Police must actively ensure that, when using force, such force is not directed at journalists;

(4)  Under no circumstances should any police officer ever target, or deliberately direct force of any kind at, a journalist; and

(5)  The Police must not engage in tactics with either the intention or effect of interfering with newsgathering activities by journalists[9].

11.In his submissions on behalf of HKJA, Mr Philip Dykes, SC submits that the Police is under both a positive duty to facilitate uninhibited lawful journalistic activities, including protecting and ensuring the safety of journalists at public order events, and a negative duty not to hinder lawful journalistic activities, including requirements not to arbitrarily threaten or use force against, arrest or detain journalists, or to exclude them from or restrict their access to public order events, as well as an ancillary positive procedural duty to investigate any breach of those duties to ensure accountability, including, where the relevant conduct constitutes torture, or cruel, or inhuman or degrading treatment or punishment (“CIDTP”), criminal sanctions.  He says that 8 principles can be distilled which need to be recognised by law-enforcement bodies -

(1)  a duty to distinguish journalists from participants of public order events;

(2)  a duty to ensure their safety and protect them and their equipment from harm;

(3)  a duty to ensure full access and uninhibited reporting “first-hand”;

(4)  unjustified interference with journalistic activities may result even without intention on the part of a police officer;

(5)  interference with a journalist reporting on a public order event may only be justified on a proportionality analysis with specific convincing evidence.  That measures aimed at the public order event may be justified (eg dispersal, cordons) does not itself justify any restriction on continued press activity;

(6)  interference, if justified, must be no more than necessary - excessive force will still amount to CIDTP;

(7)  allegations of breach(es) of the above duties must be investigated and subject to judicial control; and

(8)  training, recognition and familiarity with the above matters[10].

THE COMMISSIONER’S CASE

12.In respect of the factual complaints raised in the 13 Journalist Statements, the Commissioner has not directly or individually responded to them, save in relation to a few isolated matters[11].  The Commissioner’s position is not to categorically deny those complaints, or that “there is necessarily no police officer acting improperly in the [public order events] since 12 June 2019”, but rather that “these are matters being (or to be) investigated in other proceedings or forums”[12].

13.In respect of various measures adopted by the Police complained of by HKJA referred to in §7 above, the Commissioner’s position is that:

(1)  Generally speaking, no journalist carrying out lawful journalistic activities will be prohibited from recording assemblies (including lawful and dispersed assemblies) or from reporting on them (whether by live-broadcast or otherwise), unless the journalist concerned is placed under lawful arrest on reasonable suspicion of having committed an offence.  Nevertheless, it is inevitable that the Police may, depending on the circumstances, have to impose certain restrictions and limitations on press activities.

(2)  The imposition of restrictions and limitations is not arbitrary, but instead is mainly due to safety concerns (including safety of officers, members of the public, arrested persons, and press members), operational needs (namely, to preserve secrecy of the operations and privacy of the arrestees, and/or to preserve evidence), or other practical reasons (such as space and time constraints)[13].

14.Specifically, the Commissioner responds as follows[14]:

(a) Police cordon: journalists may enter or leave public areas including cordoned areas, subject only to the Police’s operational needs.  Journalists are free to cover events happening inside cordoned areas even when outside those areas.

(b)  Dispersal actions: they are directed primarily at protestors or rioters but from time to time the Police needed to ask journalists to move aside, and if necessary, use proportionate force to move them.

(c) Use of force: the Police’s use of necessary and proportionate force is underpinned by statue and guidelines, including proportionality principles.  Justification in any given case is fact sensitive.  Many cases are under investigation or the subjects of litigation.  It cannot be assumed that the Police has no response or justification.  Where journalists were hit inadvertently, the Duty was not breached.

(d)  Lights: there are operational needs for them.  They were not routinely or deliberately used to interfere with journalistic work.  Police officers have been reminded that they should minimize any inconvenience to journalists.

(e) Verbal abuse and obstruction: the former, while regrettable, can hardly be said to have impinged upon lawful journalistic activities.  Whether obstruction offences were committed by journalists must depend on the facts of each case.  One cannot assume that journalists discharging their duties and obstructing police officers are mutually exclusive.

15.In support of the contention that there is no systemic breach of the Duty by the Police, the Commissioner refers to and relies on the fact that the Police has clear guidelines and measures to facilitate journalistic activities, which all police officers are obliged to follow, including (i) Police General Orders (“PGO”), Chapter 39 (Police, Public and Media Relations), (ii) Force Procedures Manual, Chapter 39 (Police, Public and Media Relations), (iii) other measures adopted by the Police to facilitate and not to hinder lawful journalistic activities (as described in §27 of the 2^nd Affirmation of Kenneth Lee Yuet-Lun filed on 30 December 2019), and (iv) the establishment of a dedicated cadre, namely, the Force Media Liaison Cadre, to facilitate media activities on the ground and to engage the media and handle issues arising from press activities (as described in §§28-32 of the 2^nd Affirmation of Kenneth Lee Yuet-Lun).  It is not necessary to set out in detail the relevant guidelines and measures in this judgment, save PGO, §39-01 and 39-05, which I shall refer to later in this judgment.

16.To be fair to the Commissioner, it is right to point out that the Commissioner has adopted the stance of not responding to the factual complaints raised in the 13 Journalist Statements directly or individually because it was clear and accepted by all parties from early on in these proceedings that there would be no determination of those factual allegations in the present application.  I shall further explain this matter in the next section concerning the procedural history of this application.

17.In respect of the legal case raised by HKJA, in particular the principal duty on the part of the Police to facilitate and not to hinder lawful journalistic activities, Mr Jenkin Suen, SC (for the Commissioner) accepts that the Police is under -

(1)  a negative duty not to restrict the freedom of the press unless such interference is justified; and

(2)  a positive duty to facilitate and enable lawful journalistic activities to take place peacefully during public order events by taking what are regarded in the circumstances as reasonable and appropriate measures (ie the Duty referred to in §3 above).

18.Mr Suen contends, however, that:

(1)  The Duty is not absolute.

(2)  The Duty is engaged only in the case of lawful journalistic activities[15]. The question is whether a journalist is acting lawfully and in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism.  Examples of situations where the Duty is not engaged include: (a) where a person is not a bona fide journalist, (b) where a journalist is not engaged in journalistic work, (c) where a journalist acts unlawfully towards the Police, (d) where a journalist breaches criminal law, and (e) where a journalist fails or refuses to obey lawful police orders and/or refrains from unlawfully hampering police work.

(3)  In relation to both the positive duty to facilitate, and the negative duty not to hinder, lawful journalistic activities, the Police has a wide discretion on the choice of measures and whether it is necessary, and if so how, to use a particular measure.

(4)  In considering whether measures taken by the Police in relation to a public order event are reasonable and appropriate, the following matters are relevant and should be taken into account:

(a) the Police’s main duty to preserve law and order, and to enforce the law;

(b)  whether the public order event is “objectionable” or “reprehensible”, which is gauged by reference to considerations such as the violence used and the seriousness of the interference with other lawful activities, rights and interests[16];

(c) the need to strike a fair balance between competing interests at stake, whether as between competing community interest and individual interest or as between competing fundamental rights[17];

(d)  the subject matter of the case, its capacity to contribute to public debate, the nature and scope of restrictions imposed on the exercise of press freedom, the availability of alternative means by which that freedom could be exercised, as well as the competing rights of other persons or of the general public[18]; and

(e) the difficulties involved in policing modern societies and the choices that the Police must make on priorities and resources[19].

(5)  The Duty must not be construed to impose an impossible or disproportionate burden on the Police[20].

19.Mr Suen argues that the legality of any particular measure adopted by the Police which may be said to have failed to facilitate, or hindered, journalistic activities cannot be determined in the abstract.  The legality of any such measure, according to Mr Suen, can only be determined by the application of the proportionality test having regard to the context and facts of the incident in question.  Mr Suen also criticizes the terms of the declarations sought by HKJA as “sweeping yet vague and imprecise”[21].

IDENTIFICATION OF GENUINE JOURNALISTS AT PUBLIC ORDER EVENTS

20.One of the issues debated at the hearing concerned the question of how genuine journalists undertaking bona fide journalistic activities in public order events could be differentiated from other participants of the public order events, including those referred to as “fake journalists” [22].  Mr Suen points out the practical difficulties experienced by police officers during public order events in seeking to differentiate between genuine journalists and others, in particular:

(1)  Some journalists (often wearing indistinct outfits and intermingled with other protestors and rioters) stood too close to police officers and “lines of fire”, or between police officers and protestors, and ignored police pleas requesting them to move aside, when it was not necessary for them to be in such positions in order to carry out their reporting duties.

(2)  During violent clashes in hours of darkness, it was even more difficult practically to differentiate and identify journalists given the absence of an effective system of identification and verification.

(3)  The prevalence of fake journalists not engaged in genuine journalistic activities, sometimes in possession of counterfeit or questionable press passes.

(4)  Many participants of public order events, who had unclear motives and were in fact not journalists, seemingly used their mobile phones and digital devices to record the events.

21.The practical difficulties mentioned above should be considered in light of the fact that in Hong Kong, there is no formal or centralized press accreditation system, and thus any person can turn up at a public order event and claim to be a journalist.  Mr Suen made it clear, however, that it was not the Police’s stance, at least as at the time of the hearing on 17 April 2010, that a certification system should be in place[23].

22.At the time of the hearing, PGO §39-05 states as follows:

“39-05 Working with Media Representatives

All officers at the scene of an incident shall:-

(a) facilitate the work of the news media as much as possible and accord media representatives consideration and courtesy; and

(b) not block camera lenses.”

23.The expression “Media Representatives” was then defined in PGO §39-01 as follows:

“‘Media Representatives’ include reporters, photographers and television crews who are in possession of:-

(a) proof of identity issued by individual newspapers, agencies, TV and radio stations;

(b) Hong Kong Journalists Association’s membership card; or

(c) Hong Kong Press Photographers Association’s membership card.”

24.In answer to the court’s question on how police officers could, in practice, differentiate genuine journalists from other participants of public order events apart from their helmets and/or reflective vests (which were ordinary items that could readily be purchased or procured), Mr Dykes said that journalists could be identified by, for example, their HKJA or HKPPA membership cards.  Having regard to the definition of “media representatives” in PGO §39-01(b) and (c) then in force, production of a HKJA or HKPPA membership card should serve as prima facie evidence that the holder thereof was a genuine “media representative” and therefore his/her work should be facilitated by police officers in accordance with PGO §39-05.

25.However, on 23 September 2020, the Commissioner amended PGO Chapter 39.  In particular:

(1)  The definition of the expression “Media Representatives” was amended to become the following -

“‘Media Representatives’ include reporters, photographers and television crews who are in possession of identity issued by:-

(a)  media agencies registered under the Government News and Media Information System (GNMIS); or

(b) internationally recognized and reputable non-local news agencies, newspapers, magazines, radio and television broadcasters.”

(2)  PGO §39-05 was also amended to read as follows -

“Working with Media Representatives

Without compromising operational efficiency, all officers should:-

(a)  facilitate the work of media representatives as far as practicable and accord them consideration and courtesy; and

(b) not block camera lenses.”

26.The following differences between the old and the new versions of PGO §39-01 and 39-05 may be noted:

(1)  Under the new §39-01, possession of a HKJA or HKPPA membership card is no longer sufficient as proof that the holder is a media representative.

(2)  On the other hand, possession of proof of identity issued by “media agencies registered under the Government News and Media Information System (GNMIS)” is accepted as evidence that the holder is a “media representative” under the new §39-01.

(3)  Under the new §39-05, the duty to facilitate the work of media representatives is now expressly subject to the requirement that there should not be any compromise of “operational efficiency” and only goes “as far as practicable”.

27.HKJA’s solicitors drew the court’s attention to the above amendments on 23 September 2020.  Correspondence on the relevance of the amendments ensued between the parties.  Eventually, HKJA filed further written submissions dated 24 November 2020 to argue that the said amendments “are inconsistent with the CP’s constitutional duty to facilitate, and not disproportionately interfere with, press freedoms”[24], and also “introduces a highly impracticable scheme where, for the local press, the enjoyment of journalistic privileges turns ultimately on Government certification by GNMIS”.

28.On 25 November 2020, the court issued the following directions to the parties: (i) the evidence and principal submissions adduced and made by the parties in this case were based on the version of the PGO existing prior to the recent amendments on 23 September 2020, and thus any decision in the present case should be based on the position as at the time of the hearing, and (ii) if there should be any further issues arising from the amendments to the PGO made on 23 September 2020, they would have to be resolved separately.

PROCEDURAL HISTORY

29.When the court first received and considered the Form 86 dated 3 October 2019, it was immediately apparent to the court that the numerous factual allegations raised by HKJA against the Police could not possibly be resolved in an application for judicial review.  Normally, an application for judicial review is determined on the basis of evidence given in the form of affidavits or affirmations without cross-examination of the deponents, although the court may, depending on the circumstances, permit limited cross-examination on some discrete factual issues the resolution of which is essential for the proper determination of the application.  The procedures for an application for judicial review are ill-equipped for the resolution of substantial disputes of primary facts[25].  Such disputes should generally be resolved in a writ action.

30.Accordingly, on 10 October 2019, the court informed the parties that a directions hearing would be held to consider the further conduct of the application for leave to apply for judicial review, including:

“how the underlying facts, or any disputes of the underlying facts, relevant to the alleged failure of the HKPF to facilitate, and not to hinder, lawful journalistic activities in the course of public order events on or after 12 June 2019, and the alleged failure of the Commissioner to address a ‘catalogue’ of operational deficiencies in that connection, are to be proved or resolved, whether by way of trial of preliminary issues or otherwise”.

31.The directions hearing took place on 30 October 2019.  At the hearing, the court stated to the parties, inter alia, that an application for judicial review was inappropriate for resolving substantial disputes of primary facts, and the court could not take up the role of a public inquiry to inquire into the numerous public order events since 12 June 2019[26].  The court expressed concern on how the underlying facts relied upon by HKJA were to be established, and suggested the alternative of determining, as a matter of principle, whether the Police was under a duty to facilitate, and not to hinder, lawful journalistic activities, as well as the limits and scope of that duty.  That approach was supported by Mr Dykes on behalf of HKJA.  In relation to the factual disputes, Mr Dykes accepted that the court could not resolve the allegations raised by the Journalists in the present application, and suggested that the court could determine matters of principle on the basis of the facts alleged by the Journalists which would be assumed to be true for that purpose. Mr Anthony Chan (for the Commissioner) proposed that HKJA might produce a short or concise statement setting out the factual matters relied upon by HKJA as the basis for the court’s determination of the relevant principles.  Mr Chan also cautioned against the court giving an advisory judgment without sufficient factual underpinning.  In the end, the court suggested to the parties that, after the Commissioner had filed evidence, they should try to agree a set of facts which could form the basis for the court’s determination of the relevant principles.  I pause to observe that the principles to be determined must of course be tied to those advanced by HKJA in the Form 86, in particular §2 thereof.

32.On 4 November 2019, the court gave, inter alia, the following directions to the parties:

“There shall be a rolled-up hearing to determine the issue raised under Decision (1) referred to in the Form 86 dated 3 October 2019 of whether, in principle, the Police is under a legal duty to facilitate, and not to hinder, lawful journalistic activities in the course of public order events on and after 12 June 2019, and if the answer is ‘yes’, what are the limits and scope of such duty.”

33.Subsequently, on 2 April 2020, the court also invited the parties to agree a succinct list of issues to be determined by the court arising out of Decision (1).

34.As it was, the parties were unable to, or did not, agree on either the facts or the issues.  The court is not privy to the discussion of the parties, and makes no criticism of either party.  On hindsight, bearing in mind the complicated factual background and the sensitivities of the issues involved, the court was perhaps over optimistic that the parties could agree on a set of facts, or list of issues.  In any event, the position now is that the court has detailed allegations of ill-treatment by police officers raised by the Journalists, and some general or non-specific responses to them by the Commissioner.  It is, however, accepted by HKJA that the court will not be making any factual findings based on the 13 Journalist Statements.  It would not be fair to the Police for the court, in the circumstances outlined above, to do so either.  The question arises as to how the court can proceed to consider the declarations sought by the Applicant, or determine the issues of law raised in §2 of the Form 86, in the absence of proof of the underlying facts.  The answer, according to Mr Dykes, is that the court should adopt an “assumed facts” approach.

THE “ASSUMED FACTS” APPROACH

35.Mr Dykes submits that even though the court will not be determining whether the contents of the 13 Journalist Statements have been proven to be true, the right approach for the court to adopt for the purpose of giving judgment in the present case is to treat them as “assumed facts”, and/or “matters of which there is prima facie evidence”.  In support of this submission, Mr Dykes refers the court to a number of instances where such approach was adopted in the UK.

36.Mr Dykes first refers the court to the Closed and Open Procedures adopted by the Investigatory Powers Tribunal (“the IPT”) in the UK.  The IPT is a special tribunal established under the Regulation of Investigatory Powers Act 2000 with jurisdiction to examine, among other matters, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.

37.The Closed and Open Procedures of the IPT are explained in its website as follows:

“The Closed Material Procedures have been introduced in the civil courts in order to handle civil cases where the Government may need to rely on sensitive material to justify an executive action. As a judicial body handling similarly sensitive material, the Tribunal’s policies and procedures have been carefully developed and have evolved with the aim of balancing the principles of open justice for the complainant with a need to protect sensitive material. The approach of hearing a case on the basis of assumed facts has proved to be of great value.

Assumed facts: This means that, without making any finding on the substance of the complaint, where points of law arise the Tribunal may be prepared to assume for the sake of argument that the facts asserted by the claimant are true; and then, acting upon that assumption, decide whether they would constitute lawful or unlawful conduct. This has enabled hearings to take place in public with full adversarial argument as to whether the conduct alleged, if it had taken place, would have been lawful and proportionate. Exceptionally, and where necessary in the interests of public safety or national security, the Tribunal has sat in closed, or private, hearings with the assistance of Counsel to the Tribunal to ensure that points of law or other matters advanced by the complainants are considered.”

38.The rationale for this procedure of holding open hearings based on assumed facts was further explained by Mr Justice Burton, former President of the IPT, in the Investigatory Powers Tribunal Report 2011-2015:

“During the last 18 months, a particularly important development in the Tribunal’s work is that it has held a considerable number of open hearings in public (‘open’) and delivered eight reasoned judgments in open. This has been achieved not, I believe, at the expense of any risk to national security, but by so far as possible developing the device of hearing cases on the basis of ‘assumed facts’. This means that without making any decision in the first instance as to whether the facts alleged by complainants are true, where appropriate the Tribunal invites the parties to formulate and agree issues of law for the Tribunal to decide upon the assumption that they are true. This has enabled hearings to take place in public with full adversarial argument as to whether, assuming the facts, any such conduct as a claimant alleged to have occurred, by, for example, the SIAs, would have been lawful. Following this, closed hearings may be held in private (‘closed’), when the legal conclusions of the Tribunal can be applied to the facts that it determines to be true.”

39.The IPT’s approach of holding open hearings based on assumed facts was recognized by the UK Supreme Court in R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491, which concerned an application for judicial review of a ruling made by the IPT at the hearing of preliminary issues on assumed facts that the Secretary of State had statutory powers to issue warrants which authorized computer hacking activities.  Section 67(8) of the Regulation of Investigatory Powers Act 2000 provides: “The decisions of the Tribunal (including any decisions as to their jurisdiction) shall not be subject to appeal or liable to be questioned in any court.”  The question which the Supreme Court had to decide was whether judicial review of the IPT’s ruling was precluded by s 67(8).  The determination of that question is not of immediate relevance to the present case.  What is relevant is that the IPT’s closed and open procedures were recognized as being “well-established”.  At §11 of the judgment of Lord Carnwath JSC, the following was stated:

“The background of the present proceedings was described in the judgment of the IPT dated 12 February 2016 [2016] UKIPTrib 14_85-CH. It was a hearing of preliminary issues of law, whose purpose was to establish ‘whether, if the second respondent (‘GCHQ’) carries on the activity which is described as CNE (computer network exploitation), which may have affected the claimants, it has been lawful’ (para 2). The Tribunal described the ‘now well-established procedure’ for it to make assumptions as to the significant facts in favour of claimants and reach conclusions on that basis, and thereafter, if the assumed facts were held to render the respondents’ conduct unlawful, to consider the position in closed session. This procedure, it was said, had enabled the tribunal on a number of occasions ‘to hold open inter partes hearings, without possible damage to national security, while preserving, where appropriate, the respondents’ proper position of neither confirmed nor denied (‘NCND’).”

40.It can be seen that the assumed facts approach adopted by the IPT is to cater for the preservation of secrecy of sensitive materials which the UK Government may need to rely upon to justify an executive action, while seeking to ensure open justice as far as possible.  The applicability of this approach would depend, amongst other things, on the parties being able to agree on a set of (i) assumed facts, and (ii) discrete issues of law for determination based on those assumed facts.  Furthermore, depending on the court’s determination of the relevant principles of law, it is envisaged that a further close hearing may be held to determine the true facts and apply the law to the facts as found.  It also seems to me that, for this approach to be successfully adopted on a practical level, the assumed facts ought to relate to a specific incidents or a few specific incidents, and be capable of being stated clearly and concisely.  These pre-conditions do not exist in the present case.

41.Mr Dykes next argues that the assumed facts approach is also regularly used in judicial review proceedings, and refers to the following cases where such approach was adopted.

42.R (on the application of A) v The Secretary of State for the Home Department [2004] EWHC 1585 (Admin) concerned claims of maladministration by the Home Office resulting in asylum seekers who had been granted leave to remain in the UK not receiving statutory welfare benefits to which they were entitled.  At §§2-3 of his judgment, Keith J recorded the procedure that was adopted:

“[2] Both sets of proceedings started life as claims for judicial review. On 14 May 2003, Mr Rabinder Singh QC (sitting as a deputy judge of the High Court) ordered by consent that Mr Kanidagli’s claim continue in the Administrative Court as if it had been begun as an ordinary claim for damages. Although a similar order has not been made in Mrs A’s claim, the parties have proceeded as if it had been. On 8 December 2003, Maurice Kay J. (as he then was) ordered that the cases be listed for a preliminary hearing to decide whether the defendant, the Secretary of State for the Home Department (‘the Secretary of State’), was liable to the claimants in law on the assumed facts set out in the claimants' statements of case. The hearing was not merely to determine whether on the assumed facts there was an arguable case that liability should be imposed on the Secretary of State. The hearing was to decide whether on the assumed facts the Secretary of State was in fact liable to the claimants.

[3]  Although the order provided for the assumed facts to be those set out in the statements of case, the parties have agreed what facts should be assumed for this purpose. However, that agreement has been expressed to be ‘without prejudice to any factual or legal argument that the [Secretary of State] might raise in relation to quantum and associated issues such as causation of loss, remoteness or mitigation’. Moreover, the argument before me (leaving aside an associated claim that the Secretary of State abused his power) was limited to whether a duty of care was owed to the claimants. Presumably, the agreement was therefore also without prejudice to whether such a duty of care had been broken. Thus, I have treated the hearing as having been to decide whether, on the assumed facts, the Secretary of State owed a duty of care to the claimants. An anonymity order has been made in the case of Mrs A.”

43.The learned judge then analysed the assumed facts, which he set out in §§4-9 of his judgment, and applied the relevant principles of law to them to reach the conclusion that, on the assumed facts, the Secretary of State owed a duty to the claimants to take care in the administrative implementation of the immigration decisions which had been made in their cases.  It is apparent that it was contemplated that there would be a further hearing to determine (inter alia) the true facts of the claims (if disputed), and also other issues including quantum, causation of loss, remoteness or mitigation.

44.In Breyer Group Plc v Department of Energy and Climate Change [2015] 1 WLR 4559, a set of assumed facts were agreed and assumed to be true for the purpose of determination of a number of preliminary issues in actions for damages brought by 4 producers/installers of low-carbon electricity generating systems against the Department of Energy and Climate Change for alleged violations of the claimants’ right to peaceful enjoyment of their possessions under article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.  There was no discussion in the judgment of the Court of Appeal on what circumstances would make it appropriate for the assumed facts approach to be adopted.

45.In R (on the application of Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin), the claimant, a non-governmental human rights organization based in Ramallah in Occupied Palestinian Territory (or West Bank), sought a declaration that the UK Government was responsible for a breach of its international obligations in respect of the Government of Israel’s action in the course of Operation Cast Lead in Gaza since 27 December 2009 (which, according to the applicant, involved intensive bombardment of the Gaza Strip followed by a full ground assault and use of chemical weapons, and caused, amongst other things, civilian casualties and destruction of thousands of residences), and for a mandatory order that the UK Government used its best endeavours to meet those obligations (including suspension of sale of military equipment to Israel, and suspension of the UK government’s financial or ministerial assistance given to UK companies exporting military technology or goods to Israel).  Amongst the issues identified for determination of the application for permission (or leave) to apply for judicial review were: (i) did the domestic court had jurisdiction to deal with the claim; (ii) if it did, should the domestic court exercise it in the circumstances, and (iii) did the claimant have the necessary locus standi?  These issues were determined as preliminary issues based on the assumed accuracy of the factual background put forward by the claimant (see §4 of Pill LJ’s judgment).

46.Lastly, R v Horseferry Road Magistrates’ Court, ex p Bennett (1993) 97 Cr App R 29 (Divisional Court); [1994] 1 AC 42 (HL) concerned an application for judicial review against a magistrate’s decision to refuse to adjourn committal proceedings brought against an accused person (Mr Bennett) to commit him for trial to the Southwark Crown Court on five offences of dishonestly, the adjournment being sought on the basis that he had been brought back to the UK from South Africa in disregard of available extradition process and in breach of international law and the laws of the state where he had been found, and he wished to challenge the jurisdiction of the magistrates’ court by way of judicial review.  There were disputes of fact as to the circumstances in which Mr Bennett came to be in the UK.  The Divisional Court, for the purpose of determining the preliminary issue of whether the court in the exercise of its supervisory jurisdiction had power to inquire into the circumstances by which Mr Bennett had been brought within the jurisdiction, assumed that “he can establish that there has been collusion between the United Kingdom executive and the Metropolitan Police, other than the Crown Prosecution Service who are responsible for the criminal proceedings, and the South African police concerning his detention in and removal from South Africa” (at p 31).  The Divisional Court held that it had no jurisdiction to do so and dismissed the application for judicial review.  The House of Lords (by a majority) reversed the judgment of the Divisional Court, holding that the court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant, and remitted the matter to the Divisional Court for further consideration.  The House of Lord also determined the issue of jurisdiction on the basis of the assumed facts put forward by Mr Bennett (see p 52H per Lord Griffiths, and p 64G-H per Lord Bridge of Harwich).

47.It seems to me that all these cases are simply examples of the court adopting a set of assumed facts for the purpose of determination of some preliminary issues.  In those cases, depending on the court’s determination of the preliminary issues, the relevant proceedings might move on to the next stage for consideration of the substantive claim for relief.  In other words, the determination of the preliminary issues was not an end in itself, but a step in the process to achieve an end in the proceedings.

48.In the present case, the “assumed facts” approach is unworkable and inappropriate, for the following reasons:

(1)  The parties have not agreed on any assumed facts, or any issues of laws to be determined based on such assumed facts.

(2)  HKJA has not even produced a statement of assumed facts for the present purpose.

(3)  It would be inappropriate for the court to simply adopt the contents of all 13 Journalist Statements as “assumed facts” and proceed to determine whether the two declarations sought by HKJA should be granted.  The statements are detailed (together with exhibits they run to over 200 pages), and contain numerous factual allegations, some of which may not be controversial, but some are probably hotly disputed.  As earlier mentioned, for the “assumed facts” approach to be adopted, the relevant facts ought to be capable of being stated clearly and concisely.

(4)  The suggested exercise would, in any event, serve little or no practical utility.  This is because, in the 13 Journalist Statements, there are extensive and wide-ranging allegations of journalists being assaulted (by batons/shields, tear gas, pepper spray, etc) and verbally abused by police officers, and/or prevented or obstructed from carrying out their reporting duties in many different ways (eg police officers using a shield to stop the journalists from filming or photographing, man-handling of the journalists, using high intensity light/strobe light to interfere with live recording, and forming cordon lines to exclude journalists from the relevant scenes), even though they were apparently only carrying out lawful journalistic activities.  Further, it would appear from the 13 Journalist Statements that such incidents were not isolated incidents but occurred repeatedly.  If such allegations are proved as a matter of fact, in the absence of further explanation or other neutralising evidence, there can be little doubt that the Police have acted unlawfully in failing to facilitate, and indeed in positively obstructing or hindering, lawful journalistic activities.  A declaration by the court that the relevant police officers have, in the circumstances as described by the Journalists, acted unlawfully is simply stating the obvious, but such declaration would achieve no real purpose.  The critical question is whether the allegations can be proved, and whether there are other relevant facts and circumstances to be taken into account.  These are not matters which can be determined in the present application for judicial review.

(5)  HKJA has not sought any substantive relief in relation to Decision (1) in the Form 86 other than the 2 general declarations referred to in §2 above.  At §13 of the Form 86, HKJA expressly states that it does not “hereby seek compensation or damages for assaults against any individual journalist”.  In other words, there will not be a further stage of these proceedings to determine whether the Police in fact acted unlawfully or in breach of various articles of the Basic Law or Hong Kong Bill of Rights.  I should mention that HKJA suggested, for the first time in the “Summary of Key Submissions of the Applicant” dated 14 April 2020, that it “reserves its position on whether a full trial of some Journalists’ Statement(s) should be held at a later stage”.  The basis for seeking a “full trial” of some of the statements, the issues to be tried, and the remedies to be sought are, however, unclear.  If it had been made known at the directions hearing that the affected journalists might be seeking specific relief such as damages for their alleged ill-treatment by the Police, the court would have considered ordering the proceedings to continue as if they had been begun by writ pursuant to Order 53, r 9(5) of the Rules of the High Court, Cap 4A, and exercising appropriate case management powers (such as joining the relevant journalists as parties to the proceedings and severing their claims or grouping them appropriately) to ensure that the claims are tried efficiently and effectively.

49.Mr Suen’s criticism of the imprecision of the declarations sought by HKJA is also valid.

(1)  The 1^st declaration sought by HKJA is that the Police “has acted unlawfully in failing to facilitate, and in certain cases actively hindering, lawful journalistic activities in the course of public order events on and after 12 June 2019 …” [underlining added].  As earlier mentioned[27], there have many public order events since 12 June 2019 in relation to which complaints have been raised by HKJA against the Police.  The declaration fails to identify the specific public order events in which it is said the Police acted unlawfully, or the ways or manners in which it is said the Police failed to facilitate or hindered lawful journalistic activities.  It also fails to identify which “cases” concerned failing to facilitate, and which cases concerned active hindering of, lawful journalistic activities.

(2)  The 2^nd declaration sought is equally imprecise - “the Commissioner, in failing or refusing to address the catalogue of operational deficiencies with regard to facilitating the lawful journalistic activities in the course of recent public order events on and after 12 June 2019, has breached Article 27 of the Basic Law and Article 16 of the HKBOR”.  Again, it fails to identify the “operational deficiencies” relied upon, or how it is said that the Commissioner has failed or refused to address such deficiencies.

50.While there is no requirement that a court declaration must be stated with absolute precision (which would in any event not be possible in many cases), there must still be reasonable certainty of the subject matter of the declaration.  Whether a declaration is sufficiently certain to be granted by the court depends on the nature and context of the declaration, and involves a matter of judgment and degree.  In my view, the declarations sought by HKJA fall on the wrong side of the line.  The undesirability of making a sweeping and general declaration of breach of the Basic Law or the Hong Kong Bill of Rights is also obvious.

51.In all, while the intended application for judicial review of Decision (1) is reasonably arguable, upon a full consideration of all the materials before the court and in the circumstances which have occurred, the court rejects the application for judicial review of Decision (1).

ALTERNATIVE DECLARATIONS SOUGHT BY HKJA

52.HKJA has, in the Annex to the “Summary of Key Submissions of the Applicant”, put forward certain alternative “Possible Declaration(s)” (“the 1^st Alternative Declaration” and “the 2^nd Alternative Declaration” respectively, collectively “the Alternative Declarations”) that HKJA says could be granted by the court (presumably having regard to the court’s direction referred to in §32 above):

(1)  The 1^st Alternative Declaration

“A declaration that:

(a)  the Hong Kong Police Force owes both positive and negative duties under BL 27 and BOR 16 to facilitate, and not to hinder, lawful journalistic activities, as well as a duty to investigate allegations of breaches of those duties; and

(b)  those duties include, specifically, a duty to distinguish journalists from participants of [public order events] in their operations, a duty to ensure journalists’ safety and protect them and their equipment from harm, and a duty to ensure journalists’ full access and uninhibited reporting ‘first-hand’.”

(2)  The 2^nd Alternative Declaration

“A declaration that, if the facts assumed in Journalists’ Statement [No.#] were true (to which the Court offers no view at this stage), the Hong Kong Police Force would have breached their duties under BL 27 and BOR 16 at an operational level to facilitate, and not to hinder, lawful journalistic activities.”

53.The Alternative Declarations are based on BL 27 and BOR 16.  BL27 states as follows:

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

54.BOR 16 states as follows:

“Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

55.As a general statement of the Police’s duty in respect of lawful journalistic activities, sub-paragraph (a) of the 1^st Alternative Declaration does not seem to me to be objectionable.  The negative duty not to hinder lawful journalistic activities arises from the express terms of BL 27 and BOR 16, while the positive duty to facilitate them is a necessary corollary to give full measure to the freedom of the press (see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, at §22).  However, it would not be right for the court to grant a general, or bare, declaration in the form of sub-paragraph (a) of the 1^st Alternative Declaration without also stating its limitations and qualifications, including that:

(1)  the duty is not absolute, but may be restricted as stated in BOR 16(3);

(2)  in so far as the positive duty is concerned, the Police has a wide discretion in the choice of reasonable and appropriate measures to be used to facilitate lawful journalistic activities (see Leung Kwok Hung, ante, §§22 and 28; Kwok Wing Hang v Chief Executive in Council [2019] 6 HKC 452, at §147);

(3)  in so far as the negative duty is concerned, the lawfulness of any measure adopted by the Police which may be said to have restricted the freedom of the press has to be determined by reference to the proportionality test (T v Commissioner of Police (2014) 17 HKCFAR 593, at §§136-137; Re BU [2012] 4 HKLRD 417, at §15); and

(4)  the observance of the positive and negative duty on the part of the Police must have regard to, and strike a fair balance with, inter alia, the Police’s statutory duties under s 10 of the Police Force Ordinance, Cap 232, including the duty to take lawful measures for preserving the public peace, preventing and detecting crimes and offences, preventing injury to life and property, apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists, regulating processions and assemblies in public places, preserving order in public places and at public meetings, and protecting public property from loss or injury (see Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, at §§15-16; SJ v Leung Kwok Wah [2012] 5 HKLRD 556, at §50).

56.In so far as sub-paragraph (b) of the 1^st Alternative Declaration is concerned, again I do not consider it to be incorrect to state generally that the Police has a duty to distinguish journalists from participants of public order events, a duty to ensure journalists’ safety and protect them and their equipment from harm, and a duty to ensure journalists’ reasonable access and uninhibited reporting ‘first-hand’.  However, such duties are not absolute.  The scope of these duties and their application to the facts of any given case must also have regard to other considerations such as the Police’s duty to maintain law and order, the lawfulness of the conduct of the protestors and journalists, whether any violence was used, and if so the degree of violence used, by the protestors, and all other relevant circumstances on the ground.  Whether there have been breaches of the relevant duties by the Police in any instance can only be determined having regard to the particular facts and circumstances of the case.

57.The 2^nd Alternative Declaration suffers from the same difficulties discussed above in relation to the 2 declarations sought by HKJA in the Form 86.

58.Tempted as I am to lay down some guidelines on the legal limits and scope of the Police’s duty to facilitate, and not to hinder, lawful journalist activities with the hope of minimizing unnecessary conflicts between the Police and journalists in public order events, I am ultimately persuaded by Mr Suen that it would be wrong to decide matters in vacuo. It would also be misleading to make declarations of legal duties in unqualified terms without identifying the possible limits or qualifications of the relevant duties.

59.In all, HKJA’s application for the two Alternative Declarations is rejected.

DISPOSITION

60.The court grants leave to HKJA to file the 3^rd Affirmation of Mak San Han Helena under its summons dated 20 January 2020, with no order as to costs.

61.The court grants leave to apply for judicial review in respect of Decision (1), but dismisses the substantive application for judicial review and declines to grant the 2 declarations sought by HKJA in §§3 and 4 of the “Relief Sought” in the Form 86.

62.For the avoidance of doubt, this judgment must not be read as indicating that the court has found that the Police either has, or has not, acted unlawfully or in breach of various articles of the Basic Law or the Hong Kong Bill of Rights referred to in the 2 declarations.  Whether the Police has, or has not, so acted in any given case can only be determined after a full investigation of the relevant facts and circumstances of that case in an ordinary writ action.

63.On the question of costs, the court has in its previous judgment found in favour of HKJA in respect of Decision (2) and Decision (3), and granted appropriate declaratory relief, but has found against HKJA in respect of Decision (1) in this judgment.  Overall, I consider that a fair order to make would be no order as to costs of the whole application (including all costs previously reserved).  I so order.

Mr Philip Dykes, Senior Counsel, Mr Robert Pang, Senior Counsel, Mr Timothy Parker, Mr Albert NB Wong & Mr Geoffrey Yeung, instructed by Vidler & Co, for the Applicant

Mr Jenkin Suen, Senior Counsel and Mr Anthony Chan, instructed by Department of Justice, for the 1^st Putative Respondent