Lai Chee Ying v. The Committee for Safeguarding National Security of the HKSAR and Another

CACV 166/2023, [2024] HKCA 611

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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J U D G M E N T

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The Court:

1.On 16 April 2024, we dismissed the appeal of the applicant, Lai Chee Ying, against the judgment of Poon CJHC on 19 May 2023[1]. The Chief Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region on 11 January 2023 (“NSC Decision”) and the decision of the Director of Immigration (“Director’s Decision”). By the NSC Decision and the Director’s Decision, it was decided that the proposed representation by Mr Timothy Owen KC of the applicant in HCCC 51/2022 is contrary to the interests of national security, and that the Director should refuse any reapplication of Mr Owen for sideline employment approval in relation to HCCC 51/2022.

2.The reasons for our judgment were handed down on 29 April 2024 (“CA Reasons”)[2].

3.On 14 May 2024, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal from our judgment[3]. The questions involved in the intended appeal said to be of great general or public importance are as follows:

(1)  Are decisions of the NSC made under Article 14 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong SAR (“NSL”) immune from judicial review?

(2)  Does the interpretation of the Standing Committee of the National People’s Congress (“NPCSC”) dated 30 December 2022 (“Interpretation”) enlarge the statutory duties and functions of the NSC under NSL 14?

(3)  Is the NSC Decision ultra vires NSL 14?

4.Having considered the submissions of Ms Samantha Lau on behalf of the applicant, we do not think any of the three questions as framed are reasonably arguable. Our reasons follow.

Question (1) – amenability to judicial review

5.This question is concerned with the main ground of appeal argued before us and was dealt with in the CA Reasons at §§31 to 46. The focus was on what was categorised by the applicant as an “ouster clause” in NSL 14, which provides that “Decisions made by the [NSC] shall not be amenable to judicial review”[4]. As stated in the CA Reasons at §32, we declined to enter into the debate whether the relevant provision is truly an ouster clause and proceeded to consider the applicant’s submissions on the premise that it is.

6.In gist, we rejected this ground of appeal because the legislative intent as expressed in the language of NSL 14 read with the Interpretation is “most clear”. 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. The court is bound to give effect to the clear meaning of the language of NSL 14 read with the Interpretation.

7.The applicant contends that the answer to Question (1) is no. Ms Lau essentially repeats the submissions made on appeal. She submitted that “no ouster clause, however clear and explicit, may exclude jurisdictional review over the decisions of NSC” and the conclusion in the CA Reasons is “inconsistent with the established principle in respect of ouster clauses”.

8.If Ms Lau’s contention is that an ouster clause, no matter how clear and explicit, can never exclude jurisdictional review over a decision of the NSC, this is a misreading of the authorities that she cited[5]. The authorities, properly understood, showed an “ingrained reluctance” of the courts to countenance statutory exclusion of judicial review on the limits of jurisdiction of a tribunal or authority. But this is not to say it cannot be done at all. On a proper understanding of the authorities, there is no inconsistency between the established principles on ouster clauses and our conclusion that the NSC Decision and the Director’s Decision are not amenable to judicial review.

9.Other than repeating the arguments advanced on appeal, Ms Lau has failed to engage the reasoning of this court in rejecting the unsuccessful arguments.

10.It would not be appropriate to grant leave to appeal for Question (1). In the circumstances, the remaining questions are irrelevant and cannot justify the granting of leave. We will deal with them succinctly.

Question (2) – effect of the Interpretation

11.This question is whether the Interpretation has enlarged the statutory duties and functions of the NSC under NSL 14. The contention is that the duties and functions of the NSC “must be confined by the three duties and functions set out in NSL 14” and hence the NSC Decision was not made “in accordance with” NSL 14.

12.It was argued on appeal that the words in Interpretation §3 (“shall perform its statutory duties and functions in accordance with the provisions of [NSL 14]”) 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. We rejected this argument as it is not a proper reading of the last part of Interpretation §3[6]. Ms Lau put forward another strained construction on this part of Interpretation §3. It has no merit.

13.Besides, regardless of whether the Interpretation has enlarged the statutory duties and functions of the NSC under NSL 14, it does not advance the applicant’s case at all. Under the civil law system in the Mainland, legislative interpretation by the NPCSC of provisions of the NSL can clarify or supplement the laws and the courts of Hong Kong are bound to follow the Interpretation[7].

Question (3) – ultra vires

14.We did not consider the ground of appeal that the NSC Decision was ultra vires, in light of our conclusion that the decisions are not amenable to judicial review[8].

15.There is no need to consider this question as the hurdle of establishing that the decisions are amenable to judicial review is not overcome.

Conclusion

16.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal as none of the questions involved in the intended appeal are reasonably arguable. As stated by the Appeal Committee[9]: “It is not enough that an important question is raised, though, since it must also be reasonably arguable that the answer to that question will affect the judgment under appeal.”

Costs

17.There is no reason why the applicant, as the losing party in this application, should not pay the costs of the putative parties. This is not resisted by the applicant. The only question is whether costs should be awarded on an indemnity basis, as sought by the putative parties.

18.We declined to award costs on an indemnity basis when we dismissed the appeal. Mr Yuen, SC submitted it is different this time. In view of the CA Reasons and that the applicant has had full opportunities to ventilate his arguments before the Chief Judge and this court, he should have appreciated that his contentions in the intended appeal to the Court of Final Appeal are wholly unmeritorious. It is wholly unreasonable for him to seek leave to appeal to the Court of Final Appeal and this application should not have been brought. This kind of unreasonable litigation conduct would justify an order of indemnity costs[10].

19.Ms Lau asked us not to exercise our discretion to award indemnity costs, contending that the intended appeal cannot be said to be unmeritorious and that the questions involved are indisputably of great general and public importance. The applicant cannot be said to be unreasonable in bringing this application.

20.We dismiss the application for leave to appeal because we do not find any of the questions involved reasonably arguable. We agree with Mr Yuen this application should not have been brought. It is appropriate to exercise our discretion to award indemnity costs to mark our disapproval of unreasonable litigation conduct.

21.We proceed to make a summary assessment of costs on the basis of the statement of costs submitted by the Department of Justice.

22.The object of costs on indemnity basis is to reimburse the receiving party all his costs, except for unreasonable items. The court will scrutinise the statement of costs for unreasonableness. We do not propose to reduce any of the costs incurred for solicitors’ work, and will allow the engagement of two counsel in this relatively straightforward matter. However, we will reduce part of the fees claimed for Senior Counsel of 15 hours and junior counsel of 16 hours. Four pages of counsel’s submissions are devoted to the argument that the NSC Decision is not amenable to judicial review from a constitutional perspective. This is plainly unnecessary. We have stated clearly in the CA Reasons[11] we did not find it necessary to address this in view of the clear meaning and effect of NSL 14 on the basis of construction, nor was this canvassed in the applicant’s submissions in the present application. It is unreasonable to spend time on submissions that are plainly unnecessary. Taking a broad‑brush approach, we reduce the total fees of two counsel by $40,000. The costs of assessment of $450 are also disallowed, in accordance with the practice that such expenses are generally not recoverable in summary assessment, see Practice Direction 14.3 para 13. We allow in full the rest of the amounts claimed in the statement of costs.

Ms Samantha Lau, instructed by Robertsons, for the Applicant (Appellant)

Mr Rimsky Yuen SC and Mr Martin Ho, instructed by the Department of Justice, for the 1^st and 2^nd Putative Respondents and the Putative Interested Party (Respondents)