Leelan Rukesh Marasinghe v. Director General of Civil Aviation

HCAL 1457/2018

[2025] HKCFI 2291

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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D E C I S I O N

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1.Unless otherwise stated, in this decision, I shall continue to use the abbreviations and definitions adopted in my earlier decision dated 26 February 2025 ([2025] HKCFI 840) (“26.2.2025 Decision”), disposing of the applicant’s Disclosure, 3^rd Party Disclosure, Oral Evidence and Letter of Request Applications, as defined and discussed in that decision.

2.Further to the aforesaid applications, the applicant also applies, by a summons filed herein on 12 July 2023 (“XXN Summons”), for leave to cross-examine Dr Kong on his 3 affidavits, the first dated 26 October 2018 and the second and third both dated 19 December 2022 (“1^st Kong Affidavit”, “2^nd Kong Affidavit” and “3^rd Kong Affidavit” respectively and “Kong Affidavits” collectively) regarding the issues stated in Schedule I to the XXN Summons (“XXN Issues”), such cross-examination to take place on a date to be fixed before the judge hearing the substantive application for judicial review.

3.The XXN Issues are:

(1)  whether Dr Cocks recommended the lifting of the applicant’s suspension (“1^st XXN Issue”);

(2)  whether Dr Kong had been attempting to influence Dr Ho (“2^nd XXN Issue”);

(3)  whether Dr Kong had been sending emails of an intimidating nature to Dr Cocks following Dr Cocks’ withdrawal from the Original Review Panel (“3^rd XXN Issue”); and

(4)  the nature and extent of Dr Kong’s continuous involvement in the Reconstituted Review Panel, following the revision/replacement of Chapter 31 of the 2014 OPM with Chapter 31 of the 2017 OPM (“4^th XXN Issue”).

4.To put the XXN Summons in context, I refer to, but do not propose to repeat, the factual background and procedural history set out in [4] – [36] of the 26.2.2025 Decision.

5.By a consent order dated 24 August 2023, I directed, inter alia, that the XXN Summons be disposed of on paper, which I now do.

6.Cross-examination of witnesses is not a usual feature of judicial review, where in most cases the facts are not in dispute. However, where there are factual or evidentiary disputes that are relevant or germane to the grounds for judicial review, or where an affiant’s reliability or credibility may be in issue, it may be appropriate for the court to order cross-examination of an affiant.

7.In R v Director of Immigration ex p Do Giau, [1992] 1 HKLR 287 at 344 (21) to (35), Mortimer J held:

“[citing Lord Diplock in O’Reilly v Mackman, [1983] 2 AC 237 at 282(B) to 283(A)] :

‘...the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires.’

It follows that leave will not be given if issues can obviously be resolved on the affidavits themselves; or if cross-examination will obviously be of no value in resolving those issues; or if the issues are not material to the decision of the tribunal or the court’s decision, or if the issues raised are not relevant.

In most cases there is little or no dispute about the limited matters relevant to the court’s review of the decision-making process. However, where there are issues between the deponents which are material and relevant and which cannot obviously be resolved on the affidavits themselves, then cross-examination may be the only just way of resolving those issues.

Where the issues themselves relate to factors affecting the decision of the tribunal, or the fairness of its procedure, cross-examination of course may be especially apposite. …”

8.In opposing the XXN Summons, the respondent submits, consistently with the above case law, that cross-examination in judicial review should be ordered only in the most exceptional cases, and that if cross-examination is regularly allowed in judicial review cases, court time and legal costs will spiral.

9.The application of such general principle, however, does not assist the respondent as it will be shown below as to why cross-examination of Dr Kong on the XXN Issues is justified in the circumstances of the instant case where it is readily apparent that there are issues or concerns arising from Dr Kong’s evidence that cannot be resolved on the Affidavits themselves, and which the applicant may legitimately need or wish to pursue, clarify or resolve by way of cross-examination.

10.For example, in respect of the 1^st XXN Issue, Dr Kong claimed, in paragraph 31 of the 1^st Kong Affidavit, that he could not recall whether or not Dr Cocks recommended the lifting of the suspension of the applicant’s medical certificate. With respect, this seems arguably counterintuitive, if not implausible, given that Dr Kong’s opinion was notably at odds with Dr Cocks’ opinion during the Original Review Panel proceedings, as evidenced by the email correspondence between Dr Kong and Dr Cocks disclosed in the 3^rd Kong Affidavit.

11.Dr Kong’s position that he could not recall whether Dr Cocks recommended lifting the suspension, also seems at odds with Dr Cocks’ emails to Dr Kong in October 2016. In particular, in his email to Dr Kong on 25 October 2016 (referred to in the 3^rd Kong Affidavit), Dr Cocks stated his belief that the continued suspension should be withdrawn if there was sufficient and reasonable doubt as to whether the decision to issue a continued suspension letter is sustainable. Without making any finding on this point at this time, the reliability (and impartiality) of Dr Kong’s evidence may be in issue, and the applicant may need to test that evidence in cross-examination.

12.With regard to the 1^st Issue, the respondent suggests that as the applicant has not pointed to any contemporaneous documentary record supporting the existence of such recommendation, there would be no value in cross-examining Dr Kong on something he cannot recall. I disagree. As highlighted above, Dr Kong’s reliability and impartiality may be in issue. Moreover, Dr Cocks’ emails in October 2016 seem to suggest that at the very least, he was inclined to recommend lifting the suspension.

13.The respondent further submits that even if Dr Cocks had made such a recommendation during the Original Review Panel’s deliberations, this cannot serve as a basis for finding that Dr Kong was biased because, as Dr Ho has explained in her evidence, the Review Panel had concluded that it was necessary to gather additional information and clarify certain matters.

14.With respect, this argument begs the question. As observed above, (1) Dr Ho’s initial view seemed consistent with Dr Cocks’ opinion that a decision should be made based on the information that was already available and (2) Dr Cocks at the very least seemed inclined to recommend lifting the suspension. That raises questions or concerns as to what led Dr Ho to seemingly reverse her opinion, and whether Dr Kong had unduly influenced her (2^nd XXN Issue). These are all legitimate issues for the applicant to cross-examine Dr Kong on.

15.Regarding the 2^nd XXN Issue, Dr Kong denied, in paragraph 31 of the 1^st Kong Affidavit, that he had been trying actively to influence

16.Dr Kong further stated at paragraph 48 of the 2^nd Kong Affidavit that it was impossible for him to exert any undue influence on Dr Ho because Dr Ho was his supervisor. With respect, such perception is fallacious and neither here nor there.

17.Depending on the facts and circumstances of the individual case, it is possible for subordinates to influence supervisors. See, for example, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at [45] – [48]. In that case, a senior immigration officer decided to make a deportation order against the applicant on the basis of a subordinate immigration officer’s notes. Since the subordinate immigration officer’s notes gave rise to a reasonable apprehension of bias, the decision itself was tainted.

18.In the present case, it appears from the chronology of emails in the 3^rd Kong Affidavit that Dr Ho changed her opinion after Dr Kong repeatedly rejected Dr Cocks’ views while at the same time propounding his own opposing views in the course of the Original Review Panel proceedings.

19.In her email of 3 October 2016, Dr Ho apparently advised that before obtaining the applicant’s consent for Dr Fowler and Dr Lee (who were employed by the applicant’s employer) to access and release his medical information, a conclusion can be reached based on the available information. Dr Ho’s opinion at that time seems consistent with Dr Cocks’ view that a decision should be made based on the information that was already available.

20.However, by the time of her email of 15 November 2016, Dr Ho became supportive of Dr Kong’s suggestion that the respondent should seek the applicant’s full consent for all relevant AMAs to release all his information relating to the licensing matter to the respondent. Further, in her email of 5 December 2016, Dr Ho apparently agreed to invite Dr Fowler to join the Original Review Panel. It seems Dr Ho had effectively reversed her prior opinion.

21.The timing of Dr Ho’s apparent reversal of opinion coincides with the clash of views between Dr Kong and Dr Cocks. Moreover, as can be seen from the chronology of emails in the 3^rd Kong Affidavit, Dr Kong appeared to have had discussions regarding the applicant with Dr Ho (email or oral) in the absence of Dr Cocks.

22.As a result, there may be a real concern as to whether Dr Kong remained impartial and detached or whether he had become an advocate for a particular position, and whether his reporting relationship with Dr Ho and access to her without Dr Cocks being present, may have resulted in Dr Kong unduly influencing Dr Ho. Thus, there is a valid evidential basis to justify the applicant testing Dr Kong’s evidence, by way of cross-examination, as to whether Dr Kong had influenced Dr Ho or had attempted to do so.

23.As for the 3^rd XXN Issue, Dr Kong denied having sent intimidating email(s) to Dr Cocks following his withdrawal from the Original Review Panel in paragraph 32 of the 1^st Kong Affidavit. There is no email of such nature before the court. There has been no discovery or disclosure of any such emails (not just those deemed by the respondent to be intimidating. Without such disclosure or discovery, the respondent says that it would be impossible to objectively verify whether there were no emails of an intimidating nature.

24.Contrary to the respondent’s argument, even in the absence of discovery of any intimidating email(s) between Dr Kong and Dr Cocks after Dr Cocks’ withdrawal from the Original Review Panel, where Dr Kong’s reliability and impartiality is in issue, it may be necessary to cross-examine him, and such questioning may give rise to further discovery of relevant documents.

25.It is further submitted by the respondent on the state of evidence on the 3^rd XXN that the XXN Summons should in any event be swiftly dismissed insofar as the Apparent Bias Ground is concerned because the presence of apparent bias or otherwise is to be viewed objectively and thus not amenable to cross-examination. In support of the proposition that there is an absolute bar to cross-examining a judge or decision maker in judicial review proceedings, the respondent cites Locabail (UK) Ltd v Bayfield Properties Ltd, [2000] QB 451 and the English jurisprudence following that case.

26.In reply, the applicant points out that a bright line cannot be drawn between cases involving actual bias and those involving apparent bias and that Locabail and the other cases cited by the respondent are concerned with judges or quasi-judicial tribunals exercising judicial or quasi-judicial functions, which are qualitatively different from the case at bar.

27.Both the Original Review Panel and the Reconstituted Review Panel exercised functions analogous to an expert determining medical fitness to operate a vehicle pursuant to a licensing regime, rather than a judge or tribunal exercising judicial or quasi-judicial functions. Thus, it is doubtful whether Locabail and the cases following it are applicable to the present case, and there is no bar to cross-examining Dr Kong in respect of the Apparent Bias Ground.

28.In any event, insofar as the Apparent Bias Ground is concerned, the purpose of the cross-examination of Dr Kong is to explore and test the primary facts and circumstances from which the court is invited by the applicant/respondent to respectively find/dismiss apparent bias.

29.As for the Actual Bias Ground and Natural Justice Ground, the respondent argues that cross-examination should not be permitted because the applicant has not identified any evidence that could lead to an inference of improper behaviour. Such argument is misconceived. Cross-examination in judicial review proceedings is not restricted to situations in which an inference of improper behaviour can be made. As I have pointed out above, Dr Kong’s reliability and impartiality may be in issue and the evidence of the Original Review Panel’s communications may also give rise to a concern that Dr Kong unduly influenced Dr Ho.

30.Moving onto the 4^th XXN Issue, it is not entirely clear from the Kong Affidavits as to what the nature and extent of Dr Kong’s involvement was. In particular, it is not at all clear (1) whether at any relevant time, Dr Kong may or may not have exercised overlapping and conflicting roles on the Reconstituted Review Panel; (2) the nature and extent of his participation in the Panel’s deliberations (including oral discussions); and (3) to what extent Dr Kong may or may not have propounded or supported any particular views or positions. At the same time, it is the applicant’s case that paragraph 2.10 of the 2017 OPM left Dr Kong in charge of the entire review process from beginning to end. These are relevant matters that the applicant may need to explore with Dr Kong through cross-examination.

31.For the reasons stated above, there are sufficient grounds to allow the applicant to cross-examine Dr Kong in respect of all the XXN Issues and I order accordingly.

32.As for costs, I order the respondent on a nisi basis to pay the applicant his costs of this application to be taxed on a party-and party basis (if not agreed).

33.Lastly, I thank counsel for their 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