Leelan Rukesh Marasinghe v. Director-general of Civil Aviation
Read the full judgment text of HCAL 1457/2018 on BabelCite. This High Court CFI judgment was delivered on 26 February 2025.
1. Before the court are 4 interlocutory applications (“ Applications ” collectively) by the applicant, Mr Leelan Rukesh Marasinghe:
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HCAL 1457/2018 [2025] HKCFI 840 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1457 OF 2018 ________________________
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________________________ DECISION ________________________ Introduction 1.Before the court are 4 interlocutory applications (“Applications” collectively) by the applicant, Mr Leelan Rukesh Marasinghe:
2.By order dated 15 August 2022, I directed that the Disclosure Application, the 3rd Party Disclosure Application and the Oral Evidence Application be disposed of on paper. 3.While no direction has been given for the determination of the Letter of Request Application, both parties are willing to have such application also disposed of on paper. To save time and costs, the Letter of Request Application will be dealt with in [53]-[81] below. Background 4.To put the Applications in context, I refer to, and repeat hereinbelow, the summary of facts in [6] to [19] of the decision I handed down herein on 6 November 2019, allowing the applicant’s application for split oral hearings of the application for leave, and the substantive judicial review (“Split Hearings Direction”). Although such summary is based on the averments in the Form 86, unless otherwise qualified in this decision, the events mentioned under this heading are largely matters of record, which do not appear to me to be controversial. Where it is required, I also incorporate relevant material disclosed in the respondent’s evidence in opposition filed after the Split Hearings Direction which, likewise, seems to be uncontroversial. 5.The applicant is a commercial aircraft pilot previously in the employ of Cathay Pacific Airways Limited (“CX”). 6.The operation of an aircraft registered in Hong Kong requires a licence (“AN(HK)O Licence”) granted by the respondent on behalf of the Chief Executive of the Hong Kong Special Administrative Region (“CE”) under article 20(1)(c) of the Air Navigation (Hong Kong) Order 1995 (“AN(HK)O”). 7.In addition, the holder of an AN(HK)O Licence cannot work as a pilot unless he also has a valid medical certificate issued by the respondent on behalf of the CE pursuant to article 20(7) of the AN(HK)O. 8.In November 2013, the applicant was diagnosed with “problematic use of alcohol”, which resulted in CX subjecting him to various no-notice alcohol consumption detection tests from December 2013. Insofar as it is material:
9.By a letter dated 7 April 2016, the respondent informed the applicant that the Civil Aviation Department (“CAD”) had been advised of the condition(s) rendering him unfit to function as a flight crew member under article 20 of the AN(HK)O and declared that his medical certificate was deemed to be suspended. 10.Then, by a letter dated 18 April 2016, the respondent informed the applicant (1) that his case had been assessed by CAD’s Approved Medical Assessors (“AMAs”) and (2) that the suspension of his medical certificate would continue for the foreseeable future since he was unable to meet the International Civil Aviation Organisation (“ICAO”) standard for class one medical certificate (“Original Decision”). 11.The AMAs who assessed the applicant’s case and made the Original Decision on behalf of the respondent were Dr Kong Hing Kei (“Dr Kong”) and Dr Horace Lee (“Dr Lee”). The former was the CAD’s only Senior Medical and Health Officers (Aviation Medicine) (“SMO(AM)”) until the end of 2017 while the latter is a medical doctor in CX’s employ and an AMA. 12.Beginning from 27 April 2016, CX had suspended the applicant without pay. 13.On 14 July 2016, the applicant appealed against the continued suspension of his medical certificate, i.e. the Original Decision (“Appeal”). 14.This is a convenient point to explain how appeals are dealt with within the CAD prior to December 2017. In this regard, within the CAD, the Personnel Licensing Office (“PELO”) carries out and/or supervises the performance of CAD’s licensing functions. It forms part of the Flight Standards & Airworthiness Division (“FSAD”) of the CAD. The FSAD is led by the Assistant Director-General (Flight Standards) (“ADG(FS)”). There are 3 sections within the FSAD, namely (1) the PELO itself; (2) the Flight Standards Office (which is led by the Chief, Flight Standards (“C,FS”); and (3) the Airworthiness Office (which is led by the Chief, Airworthiness Standards). 15.The CAD, through the PELO, publishes a number of documents concerning procedures and standards that seek to comply with the ICAO Licensing Manual. The PELO publication that is relevant to this case is the Office Procedures Manual (“OPM”). The OPM is not a public document but an internal document within the CAD. 16.The Appeal was initially handled in accordance with the procedures set out in Chapter 31 of the February 2014 version of the OPM (“2014 OPM”). More specifically, the extract entitled “Handling Request for Review on Medical Certification Matters” under Chapter 31 provided, inter alia, that:
17.For the purpose of paragraph 2.5, it is CAD’s stated practice on an appeal relating to medical certification that the review panel would comprise, inter alia, 2 AMAs who have not been involved in the previous decisions in the case from which the appeal has arisen. 18.The review panel originally constituted for the Appeal (“Original Review Panel”) comprised Dr Kong as the CAD’s representative and Dr Cocks and Dr Mandy Ho (“Dr Ho”), neither of whom were involved as AMAs in previous decisions in the applicant’s case. 19.In about late 2016 or early 2017, Dr Cocks recommended to Dr Kong that the suspension of the applicant’s medical certificate be lifted while Dr Ho was neutral. Dr Kong did not accept Dr Cocks’ recommendation. It is the applicant’s case that Dr Kong also tried to actively influenced Dr Ho. On 7 February 2017, Dr Cocks resigned from the Original Review Panel. 20.In the meantime, CX had terminated the applicant’s employment on 13 January 2017. Fearing imminent dismissal by CX, the applicant had in about May 2016 applied for a medical certificate from Transport Canada Civil Aviation Medicine (“Transport Canada”) to allow him to obtain possible alternative employment as a commercial aircraft pilot in Canada. 21.By a letter dated 28 February 2017, the applicant sent the CAD further medical reports and a letter dated 10 February 2017 from Transport Canada recommending that the applicant be considered fit for an unrestricted medical certificate allowing him to work as a commercial aircraft pilot in Canada. 22.Further, by a letter dated 21 April 2017, Transport Canada sent to the CAD medical information concerning the applicant’s application for a medical certificate from Transport Canada. 23.Following Dr Cocks’ resignation from the Original Review Panel, the CAD sought legal advice from the Department of Justice in order to ensure that the review mechanism was fair and appropriate. 24.In about mid July 2017, the CAD set up a reconstituted review panel (“New Review Panel”) to review the applicant’s case. Despite the applicant’s objection through his solicitors’ letter dated 27 July 2017 based on the CAD’s stated practice (see [17] above) and principles of natural justice and procedural fairness, the New Review Panel comprised Dr Kong, Dr Lee, Dr Ho, Dr John Fowler, an AMA in CX’s employ, and Dr Wong Yee Him, a consultant psychiatrist. 25.In the meantime, subsequent to the constitution of the New Review Panel and during the currency of the Appeal, in December 2017, the respondent revised and replaced Chapter 31 of the 2014 OPM with Chapter 31 of the 2017 version of the OPM (“2017 OPM”). 26.Insofar as it is material, under Chapter 31 of the 2017 OPM, the applicant may object to the preliminary review of the case by SMO(AM) and to the appointment to the new review panel an AMA who had been involved in the original decision of the case under review (paragraph 2.7). In this connection, it is worthy of note that after the New Review Panel was set up in July 2017, the applicant did through his solicitors object to the involvement of Dr Kong and Dr Lee in the New Review Panel but to no avail. However, such objection was made on the strength of the CAD’s practice as stated in [17] above and principles of natural justice and procedural fairness, not Chapter 31 of either version of the OPM. 27.In addition, the 2014 OPM expressly required the C,FS and/or the ADG(F,S) to indorse the findings of the review panel. Such requirement is deleted in the 2017 OPM. Instead, paragraph 2.10 of the 2017 OPM simply requires the C,FS and/or the ADG(F,S) to be kept informed of the review application on a regular basis and in writing. It is the applicant’s case that the new rule left Dr Kong in charge of the entire review process from beginning to end. 28.It is the applicant’s evidence that he had not been informed that the Appeal was initially handled in accordance with the procedures prescribed in Chapter 31 of the 2014 OPM. Nor had he been advised of the replacement of Chapter 31 of the 2014 OPM by Chapter 31 of the 2017 OPM or the adoption of the 2017 OPM in the determination of the Appeal. In short, the applicant says that he was not made aware of the existence, content or application of these rules in his case until they were disclosed in Dr Kong’s 1st affidavit filed on 25 October 2018 (“1st Kong Affidavit”). 29.Coming back to the chronology, by a letter dated 23 November 2017, the CAD informed the applicant’s solicitors that the New Review Panel had come to the view that the applicant’s test result on 9 March 2016 supported the conclusion that he had a relapse. 30.By a letter dated 2 March 2018, the applicant’s solicitors provided the CAD with the applicant’s response and a supplementary report from Dr Salah E Breidi, a toxicologist, supporting the applicant’s reading of the 2.7% CDT test result on 9 March 2016 to be abnormal or a “false-positive” and expressing the opinion that the more direct and negative indicators of excessive consumption of alcohol could not be ignored. 31.By a letter dated 25 April 2018, the respondent informed the applicant’s solicitors that the New Review Panel held the view that there was no new information to be considered and that the respondent’s initial decision to suspend the applicant’s medical certificate would maintain (“Review Decision”). 32.The cumulative effect of the Original Decision and the Review Decision was to render the applicant incapable of performing his licensed functions as a commercial pilot in Hong Kong, thereby leading to the termination of his employment with CX. Procedural background 33.Against the abovementioned background, it was originally the applicant’s case that the Review Decision is reviewable by the court on the following 4 grounds:
34.After the parties filed their respective written submissions on the question of leave, the respondent accepted that leave for judicial review can be granted in respect of the Apparent Bias Ground. Meanwhile, the applicant has confirmed by the deletion of paragraphs 76 to 85 of the existing Form 86 that he will not pursue the Wednesbury Unreasonable and Illegality Grounds. That is to say, on the question of leave, of the 4 original grounds, only leave for the Actual Bias Ground remained contentious. 35.However, the applicant has, by paragraph 75A of the proposed Amended Form 86, articulated a new complaint about the procedure by which the Appeal was conducted which, he says, was “fundamentally unfair and in breach of natural justice” (“Natural Justice Ground”) based on the points identified as supporting the Apparent Bias Ground. 36.Following the Split Hearings Direction, I handed down a decision on 15 August 2022, which (1) allowed the applicant to amend the Form 86, including averments of his reliance on the revision and replacement of Chapter 31 of the OPM and to add the Natural Justice Ground (“Amendment Decision”), and (2) granted leave to applicant to commence judicial review of the Review Decision on the Actual Bias Ground, the Apparent Bias Ground and the Natural Justice Ground (“Leave Decision”). Disclosure Application 37.After the Amendment and Leave Decisions, the respondent filed Dr Kong’s 2nd and 3rd Affidavits on 19 December 2022 (“2nd Kong Affidavit” and “3rd Kong Affidavit” respectively) responding to, inter alia, the Amended Form 86. 38.In particular, the 3rd Kong Affidavit disclosed correspondence (1) between Dr Kong and other members of the Original Review Panel on 23 September 2016 until the withdrawal of Dr Cocks from the Original Review Panel in February 2017 and (2) between Dr Kong and other members of the New Review Panel from its first meeting on 10 August 2017 until the Review Decision on 25 April 2018, insofar as such correspondence is in CAD’s possession, custody or power. 39.In light of such new evidence, the applicant no longer pursues the Disclosure Application. 40.I refuse the Disclosure Application. 3rd Party Disclosure Application and Oral Evidence Application 41.By the 3rd Party Disclosure Application, the applicant seeks an order that:
42.By the Oral Evidence Application, the applicant seeks to issue a writ of subpoena ad testificandum compelling Dr Cocks to give live oral evidence concerning his emails and other correspondence with Dr Kong concerning the Appeal. 43.The applicant had, however, learnt after the issue of the summonses for the 3rd Party Disclosure Application and the Oral Evidence Application from the correspondence between the applicant’s solicitors (Messrs Haldanes) and Dr Cocks’ solicitors (Messrs Howse Williams) that Dr Cocks no longer lives in Hong Kong. Further, through such correspondence, Cocks has made it clear that he would produce documents and give oral evidence only upon compulsion of a court order. 44.It is against such development that the applicant makes the Letter of Request Application, which is in the alternative to the 3rd Party Disclosure Application and the Oral Evidence Application. 45.The applicant had invited me to adjourn the hearing of the 3rd Party Disclosure Application and the Oral Evidence Application sine die, with costs reserved, to allow for the “remote possibility that Dr Cocks will agree to return to Hong Kong so as to be able to accept service” (of the summonses for the 3rd Party Disclosure Application, the Oral Evidence Application and Letter of Request Application). 46.According to the respondent, the fact that Dr Cocks has permanently left Hong Kong poses a fundamental jurisdictional challenge to the 3rd Party Disclosure Application and the Oral Evidence Application, due to the well-established principle that the court does not have jurisdiction to compel a non-party residing abroad to give oral evidence or produce documents in the absence of urgent necessity. 47.In support, the respondent refers to Mackinnon v Donaldson, Lufkin and Jenrette Securities Corp [1986] Ch 482, where Hoffmann J (as he then was) discharged an order and subpoena that required a US bank, which also carried on business in London, to produce books and papers held at its head office in New York, relating to transactions which took place in New York on an account maintained there with the US bank by a Bahamian company. Hoffmann J held that barring exceptional circumstances, a non-party foreigner should not be required to produce documents outside the jurisdiction concerning business which it has transacted outside the jurisdiction. The principle is that a state should refrain from demanding obedience to its sovereign authority by foreigners in respect of their conduct outside the jurisdiction (at 493F-H). 48.The respondent also drew my attention to Re Tucker [1990] Ch 148, wherein Dillon LJ noted the “general practice in international law is that the courts of a country only have power to summon before them persons who accept service or are present within the territory of that country when served with the appropriate process” (at 158D-E). 49.The above principle was applied by me in Global Gaming Philippines LLC v Deutsche Bank AG [2019] HKCFI 405 at [50]:
50.The applicant makes no claim that the exception of “urgent necessity” could be applied in the present case. 51.Indeed, the applicant appears to be cognisant of the difficulties with the 3rd Party Disclosure Application and the Oral Evidence Application. He acknowledges that the Letter of Request Application is made in the “alternative” to the 3rd Party Disclosure Application and the Oral Evidence Application, on the footings that (1) “this Court does not have, or no longer has, the jurisdiction to accede to them” and (2) “Dr Cocks will not resume residency in Hong Kong and/or will continue to decline to return to Hong Kong so as to be able [sic] accept service”. 52.Given the foregoing, I dismiss the 3rd Party Disclosure Application and the Oral Evidence Application on the basis that the Hong Kong courts do not have subject matter jurisdiction. I reject the applicant’s invitation to adjourn the hearing of these 2 applications sine die to allow for the “remote possibility that Dr Cocks will agree to return to Hong Kong so as to be able to accept service”. As the respondent correctly points out, there is simply no evidential basis for such speculation. Letter of Request Application 53.Where it is necessary to obtain evidence under compulsion from a third party who is outside the jurisdiction, the proper procedure should be, inter alia, by way of a letter of request to the foreign court: Mackinnon at 499F-H and Global Gaming Philippines LLC at [50]. 54.Under Order 39 rule1 of the Rules of the High Court (Cap 4A), the court has jurisdiction to order the issuance of a letter of request. In deciding whether to do so, the court takes into account 5 factors: (1) whether the evidence to be obtained is necessary and in the interest of justice; (2) whether the witness cannot reasonably be expected to come to Hong Kong; (3) whether reasonable attempts have been made to obtain evidence in other ways; (4) whether the evidence is such that a full-fledged cross-examination is appropriate; and (5) whether the application is made bona fide and with such promptness as not to cause unreasonable delay. See Huang Yu Hui v Zheng Shizhi [2022] 1 HKC 274 at [10]-[11] per Au-Yeung J. 55.More importantly, it is trite that a letter of request should not be issued unless the evidence is directly material to an issue in the case: Hong Kong Civil Procedure 2025, Volume 1, §39/2/1 and Samuel Tak Lee v The Hong Kong Chinese Christian Church Union, HCAL 27/2008, unreported, Chu J (as she then was), 25 September 2009. 56.Even though it is open to a judge hearing a judicial review application to permit oral evidence to be adduced, “for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence so as to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross-examination in judicial review proceedings, the court time and legal costs involved in such cases will spiral”: Bubb v Wandsworth LBC [2012] PTSR 1011 at [24] per Lord Neuberger. 57.In the absence of oral evidence and cross-examination, a party can nonetheless challenge the written evidence “by analysis of the facts and law, by reference to the documents and/or other witness statements in its written and oral submissions”. A party can also rely on gaps and inconsistencies in the evidence “through submissions, identifying the alleged gaps and inconsistencies in the evidence and inviting the court to draw conclusions from the same”. See R (Good Law Project) v SSHSC [2022] PTSR 644 at [275]-[278] per O’Farrell J. 58.On this note, I shall first address the request for oral examination of Dr Cocks before turning to the request for production of documents. Letter of Request Application — request for oral evidence 59.The applicant wishes to examine Dr Cocks on the following 4 issues:
60.While the applicant recognises that oral evidence and compulsory discovery are unusual in judicial review, it is submitted on his behalf that this is an unusual case. It is contended on behalf of the applicant that there is good reason to subpoena Dr Cocks:
61.The respondent has noted that, on the applicant’s own case, the requested oral evidence is relevant only to the Actual Bias Ground. 62.It is, therefore, Dr Kong’s state of mind that is material to the applicant’s complaint, it being well-established that the test for actual bias is subjective and has to do with that decision-maker’s actual state of mind: De Smith’s Judicial Review (8th Ed) §10-012. The respondent has also observed that there is no challenge by the applicant that the court is ultimately concerned with the actual state of mind of the decision-maker complained of. 63.On the other hand, the applicant suggests that it is not right to draw a rigid line between the Actual Bias Ground and the Apparent Bias Ground, citing the Amendment and Leave Decisions, in which I held that “there is still room for argument on the test for finding actual bias or the situations in which such a finding can be made and whether the facts of this case would support such a finding” (at [44]). 64.In my view, Dr Cocks should not be compelled to give live evidence. 65.First, I agree with the respondent’s observation that the applicant’s written submissions shy away from a proper analysis of why Dr Cocks’ oral evidence is necessary to the factual issues in dispute other than a general reference to an alleged “direct, irreconcilable conflict” between (1) “the Applicant’s evidence concerning what Dr Cocks told him in late 2016 and early 2017 about Dr Cocks’ interactions with Dr Kong” and (2) Dr Kong’s evidence. 66.Such alleged conflict is not per se a sufficient reason to introduce Dr Cocks’ oral evidence. There is no reason why the applicant cannot rely on the gaps and inconsistencies in the documentary evidence: R (Good Law Project), supra. Indeed, the applicant himself has stated several times in his affidavit evidence that “the determination of the [A]ctual [B]ias [G]round will largely turn on the assessment of documentary evidence in the form of emails”. 67.Turning then to each category of information sought by the applicant, in relation to the Category 1 Information:
68.As for the Category 2 Information, the applicant can resort to the relevant minutes, email correspondence and written records, all of which would reflect the discussions between the decision makers at the meetings of the Original Review Panel. 69.As to the Category 3 Information, the documents and written records speak for themselves. It is not necessary for the court to hear Dr Cocks’ interpretation. Moreover, given the infallibility of memory, it is difficult to see how Dr Cocks’ recollection of events that took place some 9 to 10 years ago (and longer by the time of the substantive hearing) could meaningfully assist in the interpretation of such documentary records. 70.Regarding the Category 4 Information, the applicant himself can speak to the consultations he had had with Dr Cocks prior to Dr Cock’s appointment to the Original Review Panel. Moreover, I fail to see how the consultations between the applicant and Dr Cocks are relevant to the alleged actual bias on the part of Dr Kong. 71.Finally, I note the respondent’s contention that the applicant is confused about the decision that he is attacking. The present judicial review application is concerned with the Review Decision made by the New Review Panel, of which Dr Cocks was not a member. As a result, Dr Cocks is not, or should not be, in a position to give evidence on the deliberations made by the New Review Panel at all. 72.The applicant’s response is that if he can make good his case on actual bias, this court may conclude that Dr Kong continued to be actually biased in leading the New Review Panel in arriving at the Review Decision. 73.With respect, I fail to see any or any solid basis for the applicant’s suggestion that Dr Cocks is able to testify on Dr Kong’s state of mind subsequent to Dr Cocks’ resignation from the Original Review Panel in February 2017. 74.I refuse the applicant’s application for a letter of request to summons Dr Cocks to give oral evidence. Letter of Request Application—request for production of documents 75.The applicant’s revised draft letter of request invites the court to direct Dr Cocks to:
76.The applicant acknowledges that the scope of document discovery sought in the Letter of Request Application mirrors that of the 3rd Party Disclosure Application. It is thus contended in the applicant’s written submissions that, just as it is appropriate for the court to accede to the 3rd Party Disclosure Application, it is appropriate for the court to grant the Letter of Request Application to compel Dr Cocks to produce documents in his possession, custody or power. In other words, the submissions in support of the 3rd Party Disclosure Application should apply with equal force to the document discovery sought in the Letter of Request Application. 77.It is worthy of note that in dealing with the 3rd Party Disclosure Application, the applicant thought that it needed to be “addressed only briefly”. 78.The applicant highlights, firstly, that the respondent has taken a neutral stance; and secondly, that this application goes together with that of a subpoena and would thus create no additional burden on Dr Cocks. 79.I am not persuaded that a letter of request should be issued to compel Dr Cocks to produce the aforesaid documents. 80.First, the disclosure under the 3rd Kong Affidavit is rather extensive. The applicant is correct to acknowledge the overlap between the respondent’s disclosure and what is sought under the Letter of Request Application. Such overlap should render this part of the Letter of Request Application unnecessary. The applicant has not advanced any counterargument, other than to highlight the respondent’s neutral stance, to convince me that more discovery by a foreign non-party is necessary. 81.Second, the applicant bears the burden, but has wholly failed, to satisfy the court that further discovery by a foreign non-party (which is not a routine procedural step) is necessary to dispose fairly of this application for judicial review or to save costs: Global Gaming Philippines LLC, supra, [46]. Disposition 82.To sum up, for the foregoing reasons, I dismiss all of the Applications. 83.I shall hear the parties on the question of costs. Any applications for costs shall be made in the first instance by letter to this court within the next 14 days. 84.Lastly, I thank counsel for their able assistance.
Mr Thomas Lee and Mr Brian Chok, instructed by Haldanes, for the applicant Ms Catrina Lam and Mr Charlie Liu, instructed by the Department of Justice, for the respondent | |||||||||||||||||||||
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