Lai Chee Ying v. The Committee for Safeguarding National Security of the HKSAR and Another
Read the full judgment text of CACV 166/2023 on BabelCite. This Court of Appeal judgment was delivered on 16 April 2024.
1. On 19 May 2023, Poon CJHC handed down his judgment (“ Judgment ”) [1] refusing to grant leave to the applicant, Lai Chee Ying, to apply for judicial review against the decision of the Committee for Safeguarding National Security of the Hong Kong SAR on 11 January 2023 (“ NSC ” and “ NSC Decision ”) and the decision of the Director of Immigration (“ Director ” and “ Director’s Decision ”) [2] . The Chief Judge is satisfied that the intended judicial review against the NSC Decision and the Dire
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CACV 166/2023, [2024] HKCA 400 On appeal from [2023] HKCFI 1382 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 166 OF 2023 (ON APPEAL FROM HCAL NO 566 OF 2023) ________________________
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__________________________________________________ REASONS FOR JUDGMENT AND DECISION ON COSTS __________________________________________________ The Court: 1.On 19 May 2023, Poon CJHC handed down his judgment (“Judgment”)[1] refusing to grant leave to the applicant, Lai Chee Ying, to apply for judicial review against the decision of the Committee for Safeguarding National Security of the Hong Kong SAR on 11 January 2023 (“NSC” and “NSC Decision”) and the decision of the Director of Immigration (“Director” and “Director’s Decision”)[2]. The Chief Judge is satisfied that the intended judicial review against the NSC Decision and the Director’s Decision is “plainly and wholly unarguable”, applying the reasonable arguability test in Peter Po Fun Chan v Winnie CW Cheung (2007) 10 HKCFAR 676 at §§14 to 15[3]. 2.On 3 August 2023, the Chief Judge handed down his decision on costs (“Decision on Costs”)[4]. Although a ‘rolled-up’ hearing was not ordered, the applicant had, in effect, a full substantive hearing of the judicial review challenge[5]. The Chief Judge therefore dealt with costs as if the matter had proceeded at a full inter partes hearing. He took the view that the application for judicial review was “wholly unmeritorious”, he took into account the Department of Justice had issued a letter to the applicant marked “without prejudice save as to costs”, and he agreed with the putative parties, being the NSC and the Director, that the application “should never have been brought”. He exercised his discretion to order the applicant to pay the putative parties’ costs of the proceedings on an indemnity basis[6]. 3.The applicant’s appeal against the refusal to grant leave to apply for judicial review was brought as of right. 4.We dismissed his appeal at the conclusion of the hearing. These are the reasons of the court. The background 5.The relevant background is set out in the Judgment at §§5 to 13 and may be summarised as follows. 6.On 19 October 2022, the Chief Judge granted the ad hoc admission of Mr Timothy Wynn Owen, KC to represent the applicant in HCCC 51/2022[7]. The appeal by the Secretary for Justice to the Court of Appeal was dismissed on 9 November 2022[8]. The Secretary’s subsequent application for leave to appeal was first refused by the Court of Appeal on 21 November 2022[9] and thereafter by the Appeal Committee of the Court of Final Appeal on 28 November 2022[10]. These judgments will be referred to collectively as “Admission Judgments”. 7.Following the Appeal Committee’s decision, the Chief Executive (“CE”), in his dual capacities as the Chief Executive and the Chairperson of the NSC announced on 28 November 2022 that he would submit a report to the Central People’s Government (“CPG”) pursuant to NSL 11[11] and recommend that a request be made to the Standing Committee of the National People’s Congress (“NPCSC”) to issue an interpretation of the NSL in accordance with NSL 65, seeking to clarify this question:
8.The NPCSC then issued this interpretation (“Interpretation”) on 30 December 2022[12]:
9.Its English translation reads:
10.On 3 May 2022, Mr Owen was issued an employment visa to work as a barrister in another matter, which was extended and remained valid until 14 September 2023. After the Court of Appeal dismissed the appeal by the Secretary for Justice on 9 November 2022, Robertsons, acting for Mr Owen, applied to the Immigration Department on 11 November 2022 for approval to take up a sideline employment under his employment visa to cover the work in respect of HCCC 51/2022, the trial of which was then due to commence on 1 December 2022. The Hong Kong Bar Association issued a practising certificate to Mr Owen on 22 November 2022. 11.Because of the request by the CE to the NPCSC for an interpretation of the NSL, the prosecution in HCCC 51/2022 sought an adjournment and the trial was adjourned to September 2023. In view of the Interpretation, on 3 January 2023, Robertsons withdrew Mr Owen’s application to the Immigration Department on a without prejudice basis. There is no extant application by Mr Owen for sideline employment approval in relation to HCCC 51/2022 thereafter. 12.On 11 January 2023, the NSC held a meeting to discuss the implementation of the Interpretation. It is provided in NSL 13 that the CE shall be the chairperson of the NSC and other members shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under NSL 16, the Director, the Commissioner of Customs and Excise, and the Director of CE’s office. NSL 14 and Interpretation §1 further provide that information relating to the work of the NSC is not subject to disclosure. 13.Following the meeting, a press statement was released by the NSC on 11 January 2023 as follows:
14.On 17 February 2023, the applicant brought proceedings by originating summons in HCMP 253/2023, seeking a declaration that the Interpretation does not affect the Admission Judgments and other relief. In opposing that application, the Director, who had attended the meeting of the NSC on 11 January 2023, made an affirmation on 20 March 2023. The Director stated that in light of Interpretation §3, the NSC noted that the court had not requested and obtained a certificate from the CE under NSL 47 in granting the ad hoc admission of Mr Owen in relation to HCCC 51/2022. The NSC then made a judgment and decision in relation to Mr Owen’s proposed representation of the applicant in HCCC 51/2022, “catering for the possibility of Mr Owen reapplying to [Immigration Department] for sideline employment approval in relation to the case”[14]. 15.The Director went on to state that without in any way waiving any applicable right or privilege, and solely in order to assist the court in determining the subject proceedings, authorization has been exceptionally given to relay (and only to such extent) the NSC Decision as follows:
16.The Director further deposed[15]:
17.The aforesaid disclosure of the NSC Decision and the Director’s Decision prompted the applicant to seek leave to apply for judicial review on 11 April 2023. In the Form 86, he sought a declaration that the NSC Decision and the Director’s Decision are ultra vires NSL 14, and an order of certiorari to quash both decisions. The Judgment 18.The first and foremost question is whether the NSC Decision is amenable to judicial review. 19.The Chief Judge held that on a proper construction, “the NSL has not vested the HKSAR courts with any jurisdiction over the work of the NSC under NSL 14 in the exercise of their judicial function. And NSL 14 enjoins in clear and unqualified terms the courts from doing so”[16]. As the courts have not been vested with any jurisdiction over the work of the NSC under NSL 14 to begin with, the question of NSL 14 ousting the courts’ supervisory jurisdiction over the NSC simply does not arise[17]. Since under NSL 14, the HKSAR courts have no jurisdiction over the work of the NSC and the NSC Decision is not amenable to judicial review, the applicant’s leave application must be refused[18]. 20.Although it is not strictly necessary to deal with the applicant’s case that the NSC Decision was ultra vires NSL 14, the Chief Judge gave his ruling on this as well since this was fully argued. He held that on a proper reading of the Interpretation, which has the same effect as the NSL as at the date when the NSL came into effect, the plain and natural meaning of the language used in the Interpretation can admit of no other conclusion. The NSC Decision lies squarely within the NSC’s power under NSL 14 as interpreted by the Interpretation[19]. There being no separate or independent ground to challenge the Director’s Decision, the making of that decision is undoubtedly a lawful exercise of the Director’s power in discharging his duty for safeguarding national security under the NSL[20]. 21.The Chief Judge therefore held that the intended judicial review against the NSC Decision and the Director’s Decision is plainly and wholly unarguable and accordingly dismissed the leave application. This appeal 22.In the supplementary notice of appeal filed on 13 September 2023, the applicant sought to set aside the Judgment and the Decision on Costs, and an order that: (a) leave be granted to apply for judicial review; (b) the application for judicial review be granted; and (c) costs be granted to him. 23.Four broad grounds of appeal were advanced. 24.Ground 1 relates to the contention that the Hong Kong courts do have supervisory jurisdiction over the NSC Decision and the Director’s Decision, to ensure that these decisions conform to the principle of legality under the rule of law and hence both decisions are susceptible to judicial review. 25.In Ground 2, it is contended that the NSC Decision was ultra vires because it did not fall into one of the three prescribed “duties and functions” identified in NSL 14, nor could it be reasonably incidental to performing a duty or function within the common law rule regarding ancillary powers. 26.Ground 3 seeks to challenge the Chief Judge’s admission of two reports by a jurist on Mainland law[21] adduced by the Secretary for Justice and the putative parties, to assist the court in properly understanding the nature and effect of the Interpretation under Mainland law. 27.Ground 4 seeks to attack the order for indemnity costs against the applicant. Ground 1 28.This is the main ground of appeal. 29.As this relates to the construction of NSL 14, it is convenient to set out the full terms not just of this provision but also of NSL 12:
30.The English translation reads:
31.Mr Dykes, SC’s submissions for the applicant may be summarised as follows:
32.We have no quarrel with the various common law principles that Mr Dykes referred us to, including the interpretative presumption against ouster clauses. Mr Yuen, SC does not agree with the characterization that the relevant provision in NSL 14 is an ouster clause. He submitted that as the Hong Kong courts have never been conferred with jurisdiction over the NSC and its work, NSL 14 does not oust any jurisdiction of the courts and the relevant provision is not an ouster clause in the correct sense of the expression[39]. He would simply call this a “No judicial review clause” for want of a better description. For present purpose, it is not necessary to enter into this debate whether the relevant provision in NSL 14 is truly an ouster clause. We shall proceed on the premise that it is. 33.At the outset, it is pertinent to bear in mind two matters. 34.First, the presumption against ouster clause is a technique in interpretation and is not conclusive, however strong it may be and despite the court’s “ingrained reluctance” to exclude judicial review. If the language used is “most clear and explicit”, it is possible to exclude the judgments and decisions of the NSC from the recourse of judicial review. Mr Dykes does recognise this as a possibility. 35.Second, in construing NSL 14, it is necessary to read its provisions with the Interpretation, and full effect must be given to it. 36.The Interpretation was given by the NPCSC on the meaning and application of the provisions of NSL 14 and NSL 47 “in accordance with the provisions of Subparagraph (4) of Article 67 of the Constitution of the People’s Republic of China and [NSL] 65”[40] [41]. The Interpretation, being an interpretation of the meaning and application of NSL 14 and NSL 47, declared what the law has always been[42]. 37.The effect of an interpretation of laws by the NPCSC in exercising its authority under Article 67(4) of the PRC Constitution has been described by the Court of Final Appeal in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at 222J to 223C, in the context of an interpretation of the BL under BL 158(1), which applies similarly to an interpretation by the NPCSC of the NSL under NSL 65:
38.The NPCSC has authority under NSL to interpret the provisions of the NSL. Under the civil law system in the Mainland, legislative interpretation by the NPCSC of provisions of the NSL can clarify or supplement the laws. The courts of Hong Kong are bound to follow the Interpretation under the principle of “one country, two systems”. 39.When NSL 14 is read with the Interpretation, the meaning and effect of the language used in the text is most clear. The legislative intent as expressed in the language is that the NPCSC does not intend to confer jurisdiction on the Hong Kong courts to review any judgment, decision and act of the NSC, including the NSC Decision. 40.Our reasoning for construing NSL and the Interpretation is as follows:
41.The combined effect of NSL 14 and the Interpretation leaves no room for any doubt or ambiguity. The meaning of the language is not reasonably capable of sustaining any competing alternative interpretation. The court is bound to give effect to the clear meaning of the language of the text. 42.Mr Dykes sought to argue the words “shall perform its statutory duties and functions in accordance with the provisions of [NSL 14]” in Interpretation §3 may be construed to mean that the duties and functions envisaged to be performed by the NSC must be confined to the three duties and functions as listed in NSL 14. This is not a proper reading of the last part of Interpretation §3. The “statutory duties and functions in accordance with the provisions of [NSL 14]” of the NSC, as clearly spelled out, are to “make relevant judgements and decisions on such situation and question” where the courts have not requested or obtained a certificate from the CE under NSL 47. 43.Reading NSL 14 with the Interpretation, there is no justification to construe the provisions in NSL 14 as restricting the performance of the NSC to the three listed “duties and functions”, as submitted by Mr Dykes. By the Interpretation, which is a legislative interpretation of the NPCSC that can clarify or supplement laws, the statutory duties and functions of the NSC under NSL 14 are clarified to cover the making of “relevant judgements and decisions on such situation and question”, namely, where there is a question that requires CE certification under NSL 47 and the courts have not requested or obtained a certificate from the CE. 44.We do not see any basis to construe the words “not amenable to judicial review” in NSL 14 and Interpretation §1 in the contrived manner suggested by Mr Dykes, in his attempt to cut down the meaning of a well-known concept and remedy for the purpose of construing NSL 14. 45.The Chief Judge has approached the question whether the NSC Decision is amenable to judicial review from a constitutional perspective (that safeguarding national security is beyond the limits of HKSAR’s autonomy and within the exclusive purview of the CPG such that supervisory power over the NSC is reserved to the CPG solely)[46]. This is supported and expanded by Mr Yuen in his submissions before us. We do not find it necessary to go down this route, in view of the clear meaning and effect of NSL 14 on the basis of construction. 46.For the above reasons, we reject the contentions of the applicant in Ground 1. We agree with the Judgment that the NSC Decision and the Director’s Decision are not amenable to judicial review. On this basis, the appeal against the Judgment must be dismissed. Ground 2 47.In light of our conclusion that the decisions are not amenable to judicial review, there is no need to deal with Ground 2 which raises the contention that the NSC Decision was ultra vires. Ground 3 48.Ground 3, which seeks to challenge the admission of expert evidence on Mainland law, is of little moment to this appeal. That said, we do not think expert evidence is warranted in this instance, in view of the clear language of the provisions to be construed, and which the court can construe without reference to expert opinion. As for the impact or effect of an interpretation of laws by the NPCSC under the Mainland system, this has been fully explained by the Court of Final Appeal in Director of Immigration v Chong Fung Yuen and expert evidence on this is unnecessary. Ground 4 49.This seeks to challenge the exercise of judicial discretion on costs in that the applicant was ordered to bear costs on an indemnity basis. 50.The Chief Judge awarded indemnity costs for the reasons as summarised earlier. We cannot say his decision was wrong in principle or plainly wrong. That this court might not have exercised the discretion the same way is irrelevant. 51.Mr Dykes submitted that the Chief Judge failed to consider the presumption against ouster of judicial review. We do not know what emphasis was given to the presumption by the applicant’s former counsel in the submissions below. We can see why the Chief Judge did not mention the presumption against ouster clauses in the Judgment, as he has taken the view that the courts have not been vested with any jurisdiction over the work of the NSC to begin with so there was no ousting of jurisdiction. 52.On established grounds for appellate intervention regarding the exercise of discretion, we see no basis to disturb the Chief Judge’s exercise of discretion to award costs on a higher basis. Costs of the appeal 53.We have heard arguments on costs. There is no dispute that costs should follow the event. The only contention is whether costs should be awarded against the applicant on an indemnity basis, as sought by Mr Yuen. 54.Notwithstanding that indemnity costs were ordered below, we have a discretion to exercise whether we should follow suit on appeal. We decline to exercise our discretion to award indemnity costs. There is a different focus and emphasis in the arguments advanced on appeal by Mr Dykes. We cannot say it is unreasonable for the applicant to pursue this appeal to seek a ruling on the presumption against ouster clauses, even though the ruling is against him in the end. 55.We order the applicant to pay the costs of the putative respondents and the interested party in this appeal on a party and party basis, with a certificate for two counsel.
Mr Philip Dykes SC, Ms Samantha Lau and Ms Velda Yau, instructed by Robertsons, for the Applicant (Appellant) Mr Rimsky Yuen SC and Mr Martin Ho, instructed by the Department of Justice, for the 1st and 2nd Putative Respondents and the Putative Interested Party (Respondents) [1] [2023] 3 HKLRD 275; an official Chinese translation is reported in [2023] 3 HKLRD 1026. [2] By the Judgment, the originating summons of the applicant in HCMP253/2023 was also dismissed. It was conceded below that the outcome of the originating summons is dependent on the application for judicial review. There is no appeal against the dismissal of the originating summons. [3] Judgment, §60 [5] Decision on Costs, §9 [6] Decision on Costs, §§10 to 12 [8] [2022] 5 HKLRD 726 [10] (2022) 25 HKCFAR 288 [11] Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”), Article 11. NSL 11 provides that the CE shall be accountable to the CPG for affairs relating to safeguarding national security in HKSAR and shall submit an annual report on the performance of duties of HKSAR in safeguarding national security; further the CE shall, at the request of the CPG, submit in a timely manner a report on specific matters relating to safeguarding national security. [12] Gazetted in LN 5 of 2023 on 27 January 2023 [13] Amendments were introduced to Part III of the Legal Practitioners Ordinance, Cap 159 and took effect on 12 May 2023. The effect of the amendments is that a person not qualified to practise in Hong Kong generally must not be admitted as a barrister for a case concerning national security unless the CE believes that his so acting as a barrister for the case does not involve national security or would not be contrary to the interests of national security. The court is required to obtain a certificate from the CE under NSL 47 whether the case is a case concerning national security and if it is so certified the court must not take any further action in respect of the application for admission unless the applicant obtains a notice of permission to proceed from the CE. The court is required to dismiss the application immediately if it is notified that the CE has decided not to issue a notice of permission to proceed. [14] Affirmation of Au Ka Wang filed in HCMP 253/2023 on 20 March 2023, §28 [15] Affirmation of Au Ka Wang, §30 [16] Judgment, §39 [17] Judgment, §41 [18] Judgment, §44 [19] Judgment, §§53 to 58 [20] Judgment, §59 [21] The reports of Professor Han Dayuan dated 16 and 23 March 2023 [22] Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 [23] Gazetted in LN 135 of 2020 [24] BL 80 provides: “The courts of the Hong Kong Special Administrative Region at all levels shall be the judiciary of the Region, exercising the judicial power of the Region.” [25] HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332 at §45 [26] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 170H to 171E per Lord Reid; R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 at §43 per Lord Carnwath JSC [27] R (Cart) v Upper Tribunal [2011] QB 120 at §34 per Laws LJ [28] C & Ors v Director of Immigration & Anr (2013) 16 HKCFAR at §77, per Mason NPJ [29] R (Cart) v Upper Tribunal at §31; Privacy International at §37 [30] Anisminic at 208C per Lord Wilberforce, quoted by Lord Carnwath in Privacy International at §122 [31] R v Shoreditch Assessment Committee, Ex p Morgan [1910] 2 KB 859 at 880 per Farwell LJ, quoted by Lord Carnwath in Privacy International at §36 [32] The same point was made in the dissenting judgment of Lord Sumption in Privacy International at §210:
[33] An example is the Upper Tribunal in R (Cart) v Upper Tribunal. [34] Privacy International at §182 per Lord Sumption [35] BL 35 provides that Hong Kong residents shall have the right of access to the courts for timely protection of their lawful rights and interests and to judicial remedies. [36] M v Home Office & Anr [1992] 1 QB 270 at 314H to 315A per Nolan LJ [37] Judgment, §35 [38] R v Secretary of State for the Home Department, Ex p Fayed [1998] 1 WLR 763 at 771B to 773C; Judicial Review Handbook by Fordham (7th ed) at §28.1.14 [39] His submission that there is no question of NSL 14 ousting the court’s supervisory jurisdiction over the NSC because the courts have not been vested with any jurisdiction over the work of the NSC to begin with was accepted by the Chief Judge, see Judgment at §41. [40] Opening paragraph of the Interpretation [41] NSL 65 provides: “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” [42] Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 326D [43] Quoted in the Judgment at §54. [44] Judgment, §38 [45] NSL 47 provides: “The courts of the Hong Kong Special Administrative Region shall obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.” [46] Judgment, §§31 to 36, 41 | ||||||||||||||||||||||||||||||||||||||
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