HCAL 117/2016

[2018] HKCFI 1940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 117 OF 2016

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JUDGMENT

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INTRODUCTION

1.  Two principal issues arise for determination in this application for judicial review:-

(1)   whether the respective decisions of the 1^st Respondent (Airport Authority, “AAHK”) and the 2^nd Respondent (Aviation Security Company Limited, “AVSECO”) to allow the taking of a bag through security screening at the Hong Kong International Airport (“HKIA”) without the presence of the passenger on 27-28 March 2016 were contrary to the relevant cabin baggage screening regulations contained in the Hong Kong Aviation Security Programme (“HKASP”) in force at that time; and

(2)   whether the amendments to the HKASP subsequent to the grant of leave to apply for judicial review have rendered the present application for judicial review “academic” such that the court should dismiss the application without further consideration of its substantive merits.

2.  For reasons which I shall endeavour to explain below, my answers to Issue (1) is “yes”, and Issue (2) is “no”.

THE UNATTENDED BAGGAGE INCIDENT

3.  The basic facts relating to the “Unattended Baggage Incident” which occurred at the HKIA on 27-28 March 2016 are not in dispute, and can briefly be summarised as follows.

4.  In the late evening of 27 March 2016, Ms Leung, an outbound passenger on a CX flight, entered the airport restricted area through the Departures Immigration Hall on Level 7 South (“DIH”) of the HKIA and underwent boarding pass checking and security screening.  She later returned to the DIH and approached a staff of AVSECO to inquire whether she had left behind a bag (“the Bag”) at the DIH.  A search was carried out but the Bag could not be found there.

5.  Shortly afterwards, the Bag was noticed to be unattended at the end of Aisle B of the Check-in counters (landside) on Level 7 of the HKIA.  A security officer of AVSECO performed an explosive trace detection test to the Bag with negative result.  In due course, the Bag was identified to be have been left behind by Ms Leung.  Discussion ensued on whether AAHK could bring the Bag to Ms Leung on the airside of the HKIA.  AAHK declined to do so because it considered that it was the airline’s responsibility to bring the Bag to Ms Leung.  AVSECO confirmed that there was no objection for the airline to bring the Bag to Ms Leung.  Eventually, a staff of the airline took the Bag through security screening (by x-ray) in the absence of Ms Leung and handed it over to her at a boarding gate in the early morning of 28 March 2016.

6.  It is not in dispute that AAHK and AVSECO each made a decision between 27 and 28 March 2016 (hereinafter referred to as the “AAHK Decision” and “AVSECO Decision” respectively) to allow the Bag to be taken through security screening without the presence of the passenger in question (ie Ms Leung).  Their respective decisions form the subject matters of this application for judicial review.

SCREENING OF PASSENGER AND CABIN BAGGAGE AT HKIA IN PRACTICE

7.  At the HKIA, screening of passengers and cabin baggage is carried out by AVSECO officers with the aid of archway metal detectors (“AMD”) and X-ray imaging technology (and other trace detection equipment) respectively, and where appropriate, supported by hand search.  The process takes place at designated screening locations at the HKIA and may be summarized as follows:-

(1)   Passenger screening

(a)   Upon arriving at the designated screening channels, passengers will be directed to proceed through the AMD after divesting themselves of personal items such as waist pouches, metallic objects and other accessories.  These items will be screened separately using X-ray imaging technology.

(b)   The passenger will be asked to walk through the AMD at a normal pace (primary screening).

(c)   If (i) the passenger triggers the alarm of the AMD, or (ii) in the judgment of the screener the passenger displays undue nervousness or arrogance or who appears to evade screening, conceal an item or in any other way which suggests that he/she may be in possession of a restricted item, a “reasoned” secondary screening of the passenger (and in the case of (ii), a reasoned secondary screening of his cabin baggage as well) will be conducted.  This may be conducted by hand or by using a handheld metal detector supported by a hand search.

(2)   Cabin baggage screening

(a)   All cabin baggage and other personal items of the passengers are screened by means of X-ray imaging technology (primary screening).

(b)   A reasoned secondary screening of cabin baggage is conducted if a suspect item or an item which cannot be identified and cleared during the primary screening is observed by the X-ray detector, or in the judgment of the security officer who conducts the primary screening the passenger displays undue nervousness or arrogance or who appears to evade screening, conceal an item or in any other way which suggests that he/she may be in possession of a restricted item.

(c)   The secondary screening will ordinarily take the form of a hand search of the cabin baggage and will be conducted in the presence of the passenger who will be invited to open the bag in order for its contents to be physically inspected.

(3)   In addition to reasoned secondary screening mentioned above, “random” secondary screening of passengers and/or their cabin baggage would also be conducted based on a search ratio set by the Aviation Security Authority (“the Authority”).

8.  Currently, a methodology known as “parallel divestment” whereby passengers and cabin baggage are processed, or screened, separately is adopted at the HKIA.  Passengers are requested to divest themselves of their cabin baggage, electronic items, hand bags and items on the person and prepare them for X-ray screening at the same time as other passengers at the front of the X-ray channel (as space allows).  Those passengers that complete the divestment first may then proceed directly through the AMD, notwithstanding that the other passengers ahead of them in the queue have not yet completed the divestment process.  Hence, passengers may not necessarily go through screening in exactly the same sequential order as their cabin baggage.

9.  The HKIA processes a large number of passengers and cabin baggage every day.  The average for the first quarter of 2017 is 99,693 passengers per day.  According to the data and records provided by AVSECO: (i) on average each passenger carries 1.7 cabin bags/items, and thus the number of cabin bags/items that require primary screening is roughly 170,000 a day; and (ii) around 11-12% of the cabin bags/items are required to undergo secondary screening where the passengers would be asked to confirm ownership of the bags/items to be searched.

10.  In order to optimize the balance between passenger facilitation and security, the HKIA has adopted a Key Performance Indicator (“KPI”), which has also been adopted by other leading international airports, for the processing of passengers at the screening point (typically from the time a passenger enters the security queue in the screening hall to the time he places his items on the tray for X-ray screening).  The HKIA has adopted a KPI of 4.5 minutes.  This means a passenger need normally wait only up to 4.5 minutes in the security queue.

THE REGULATORY FRAMEWORK RELATING TO THE SCREENING OF PASSENGERS AND CABIN BAGGAGE

(i)   ICAO

11.  The International Civil Aviation Organisation (“ICAO”) is an UN specialised agency established to manage the administration and governance of the Convention on International Civil Aviation (“the Chicago Convention”).  The People’s Republic of China is a Contracting State to the Chicago Convention.  The Hong Kong Special Administrative Region, through the membership of the People’s Republic of China in the ICAO, is obliged to maintain high aviation security standards in compliance with the aviation security requirements established by the ICAO.

(ii)   The regulatory authorities in Hong Kong

12.  In Hong Kong, the Aviation Security Ordinance, Cap 494 (“ASO”), is the principal legislation on aviation security.  As stated in its long title, the purpose of the ASO is to make provisions for, inter alia, the prevention and suppression of acts of violence against civil air transport.  For the purposes of the ASO, the Secretary for Security has been appointed as the Authority under Section 22(1) thereof.

13.  The Civil Aviation Department (“CAD”), acting under the delegated authority of the Secretary for Security, is the executive agent responsible for ensuring the implementation (including compliance) of the HKASP. The CAD assumes regulatory functions, including vetting individual security programmes developed by airlines and airport operators, and monitoring implementation of the programmes.

14.  AAHK is the manager of the HKIA.

(1)   Under Section 5(1)(a) of the Airport Authority Ordinance, Cap 483 (“AAO”), AAHK shall, in accordance with that Ordinance and also in accordance with the objective of maintaining Hong Kong’s status as a centre of international and regional aviation, provide, operate (in accordance with any law in that regard which is for the time being in force), develop and maintain the HKIA.

(2)   Under Section 6(2) of the AAO, AAHK shall, in conducting its business or in otherwise performing its functions, have regard to safety, security, economy and operational efficiency and the safe and efficient movement of aircraft, air passengers and air cargo.

15.  The actual discharge of the daily security operations at the HKIA is undertaken by AVSECO, a subsidiary of AAHK.  AVSECO is the sole provider of aviation security services at the HKIA.  Its role includes conducting security screening of all departing and transfer passengers as well as their cabin and hold baggage in compliance with the requirements of the HKASP and HKIA-ASP.

(iii)   The HKASP

16.  As stated in Section 23(1) of the ASO, the function of the Authority is to develop, maintain and implement the Aviation Security Programme drawn up under Section 27(1) thereof, under which the Authority –

“shall, with the advice of the [Aviation Security Committee] draw up an Aviation Security Programme to provide for the protection and safeguarding of aircraft including passengers and crew operating in and through Hong Kong, of the facilities of aerodromes serving international civil aviation and of the ground personnel and the general public within such aerodromes against interferences which constitute an offence under this Ordinance or any other law.”

17.  The Authority has accordingly drawn up the HKASP which stipulates security requirements for the protection and safeguarding of airports, aircraft, passengers, crew and the general public against acts of unlawful interference.  The 1^st edition of the HKASP came into force in 1996.  It has undergone 3 major revisions since (in 1998, 2004 and 2008), with the current (4^th) edition being adopted in 2008.  In the Foreword to the HKASP, it is stated that the programme is not a classified document but it would be conducive to maintaining high standards of aviation security if it is disseminated on a “need-to-know” basis.  In practice, the HKASP is circulated amongst relevant government departments and security personnel of airport operators, airlines, airport tenants and other companies and agencies whose activities impinge upon aviation security (see paragraph 11 of the First Affirmation of Mr Alex Chan, Principal Assistant Secretary for Security (B) of the Security Bureau).  In view of the confidentiality concerns which have been raised by the Respondents (see further below), I shall refer to only those provisions of the HKASP and HKIA-ASP which are either already in the public domain or which I believe are necessary for a proper consideration of the issues raised in this application.

18.  The objective of the HKASP is set out in Part 1 of the HKASP:-

“1.1 The objective of the [HKASP] is to protect the safety, regularity and efficiency of international civil aviation in Hong Kong by providing, through regulations, security directions, practices and procedures, the necessary safeguards against acts of unlawful interference. Whenever possible, security controls and procedures should cause a minimum of interference with, or delay to the activities of, international civil aviation.

1.2 The safety of passengers, crew, ground personnel and the general public shall be the primary objective in all matters related to safeguarding against acts of unlawful interference with international civil aviation.

1.3 It is the Hong Kong Special Administrative Region Government policy that Hong Kong shall comply with the International Standards and shall endeavour to comply with the Recommended Practices laid down in the Annexes to the [Chicago Convention]. This Programme is designed to meet the International Standards and Recommended Practices detailed in Annex 17 (Ninth Edition) of the [Chicago Convention] …”.

(iv)   The HKIA-ASP

19.  Under Section 27(3)(a) of the ASO, the Authority may require the manager of an aerodrome to submit a security programme which applies to the aerodrome.  Under paragraph 4.3.2 of the HKASP, AAHK, as the manager of the HKIA, is responsible for:-

(1)   developing and implementing an airport security programme to meet the requirements of the HKASP (sub-paragraph (a)); and

(2)   establishing and implementing measures to protect the enhanced security restricted area through screening persons, their baggage and items carried for entry into the enhanced security restricted area at the HKIA in accordance with the requirements of the HKASP (sub-paragraph (f)).

By way of explanation, I should mention that, in relation to the HKIA, the security restricted area is referred to as the “enhanced security restricted area”.

20.  AAHK has accordingly developed the HKIA Airport Security Programme (“HKIA-ASP”) to lay down the requirements and standards specifically and directly applicable to the HKIA to meet the requirements of the HKASP.  The HKIA-ASP has been audited and inspected by the CAD acting under the delegated authority of the Authority.

(v)   Specific provisions relating to the screening of passengers and cabin baggage

21.  Clause 4.4.1 of Annex 17, titled “Security – Safeguarding International Civil Aviation Against Acts of Unlawful Interference” (“Annex 17”), to the Chicago Convention, provides as follows:-

“Each Contracting State shall establish measures to ensure that originating passengers of commercial air transport operators and their cabin baggage are screened prior to boarding an aircraft departing from a security restricted area.”

22.  The ICAO’s Aviation Security Manual (“the Manual”), which provides guidance on the application or implementation of Annex 17, further provides as follows:-

(1)   Under Clause 11.5.8 (Screening of cabin baggage) –

“11.5.8.1 The cabin baggage of all departing passengers should be screened using one or more of the following techniques:

a) manual search of the content of each bag and item carried. Screeners should be particularly alert for suspicious signs, such as inconsistent weight;

b) conventional x-ray…”

(2)   Under Clause 11.5.9.1 (Manual searches of cabin baggage) –

“11.5.9.1 Manual searches of passenger cabin baggage should always be carried out in the presence of the owner of the baggage …”

23.  The detailed requirements for the screening of passengers and cabin baggage are set out in Part 6 of the HKASP.  The version which was in force as at the date of the Unattended Baggage Incident (“the Pre-April 2018 Version”) states as follows:-

“Screening of Passengers and Cabin Baggage

6.2.6 The airport manager shall ensure that a passenger … and his cabin baggage are screened to a standard sufficient reasonably to detect a restricted article, before the passenger or cabin baggage is permitted access to an area set aside for processing embarking passengers and crew within an enhanced security restricted area…

6.2.7 The screening of a passenger and his cabin baggage shall be with the consent of the passenger, which normally is tacit since access to the enhanced security restricted area shall be conditional on the passenger undergoing such screening…

6.2.8 A reasoned secondary screening shall be conducted to account for all unidentified objects on a passenger that has set off a security equipment alarm (usually an archway metal detector). This secondary screening may either be typically by hand or it may be conducted using a hand held metal detector supported by a hand search. A reasoned secondary screening shall also be conducted of a passenger’s cabin baggage, where any items of a suspect nature have been detected during x-ray examination. This secondary screening shall be conducted by hand and may be supported by a trace detection system to examine those items which are difficult to be search [sic] by hand.

6.2.9 A reasoned secondary screening of a passenger and his cabin baggage shall also be conducted if, in the judgment of the screener, the passenger displays undue nervousness or arrogance or who appears to evade screening, conceal an item or in any other way suggests that he may have a restricted article.

6.2.10 All screening of cabin baggage shall be conducted in the presence of the passenger.

6.2.11  In addition to any reasoned secondary screening described in sections 6.2.8 and 6.2.9, the Aviation Security Authority may prescribe a percentage of random secondary screening of passengers and their cabin baggage corresponding to the prevalent threat level. This random secondary screening shall be conducted by hand. The percentage threshold may be set in relation to threat level and may be adjusted commensurate with any change in the threat.”

24.  For the purpose of the HKASP, “screening” is defined to mean:-

“The application of technical or other means which are intended to identify and/or detect weapons, explosives or other dangerous devices, articles or substances which may be used to commit an act of unlawful interference”.

25.  As will be seen below, central to the Applicant’s argument in the present case is Section 6.2.10 of the Pre-April 2018 Version which, on its face, requires all screening of cabin baggage to be carried out in the presence of the passenger concerned.

26.  Specific provisions relating to the screening of passengers and cabin baggage at the HKIA can be found in Section 6 of Part 8 of the HKIA-ASP, as follows:-

“6.2 All items of cabin baggage shall be security screened, generally be means of x-ray technology…

6.5 A reasoned secondary search of the passenger shall be conducted if:

(a) the passenger alarms the archway metal detector; or

(b) in the judgement of the screener, the passenger displays undue nervousness, or arrogance or who appears to evade screening, conceal an item or in any other way suggests that he may have a restricted item.

The secondary search may either be typically by hand or it may be conducted using a hand held metal detector supported by a hand search. The search shall be thorough enough to account for all metallic and unidentified objects on the person.

6.7 A reasoned secondary search of the cabin baggage shall be conducted if:

(a) a suspect item or an item which cannot be identified and cleared by x-ray examination, is observed by the operator; or

(b) in the judgment of the screener, the passenger displays undue nervousness, or arrogance or who appears to evade screening, conceal an item or in any other way suggests that he may have a restricted item.

The search shall be conducted in the presence of the passenger. The passenger shall be invited to open the bag in order for its contents to be physically inspected. Further x-ray images may be taken of the bag from a different angle or of items within the bag.

6.10   The Aviation Security Authority may prescribe a percentage of random secondary searches of passengers and their cabin baggage, which are required to be undertaken in addition to any reasoned secondary searches described above. Such secondary searches may include both hand search as well as search by use of hand held metal detector. The percentage threshold may be set in relation to a threat level and may be adjusted commensurate with any change in the threat.”

THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

27.  On 26 June 2016, the Applicant (together with two other persons who have since dropped out from these proceedings) applied for leave to apply for judicial review of the AAHK Decision.  Subsequently, the Applicant applied to amend her Form 86 to challenge both the AAHK Decision and the AVSECO Decision.

28.  The application for leave to apply for judicial review came before this court on 24 February 2017.  At the hearing of the leave application, the main substantive issue between the parties was whether, upon the true construction of the relevant provisions of the HKASP (in particular, Section 6.2.10 thereof), the presence of the passenger was required at the primary screening of his cabin baggage.  The Respondents also argued that leave to apply for judicial review should be refused on, inter alia, the ground that the intended challenge was “academic”.  For the reasons given in a written decision dated 24 February 2017, the court granted the Applicant leave to, inter alia, (i) amend the Form 86, and (ii) apply for judicial review of the AAHK Decision and AVSECO Decision, limited to the “illegality” ground.

THE AMENDMENTS TO HKASP IN APRIL 2018

29.  Notwithstanding the Government’s stance that the passenger’s presence was not required at the stage of primary screening of his cabin baggage, the Secretary for Security, acting as the Authority, decided to amend the HKASP in April 2018, some 14 months after the Applicant obtained leave to apply for judicial review, so as “to clear any doubts as regards the true meaning and intent of paragraph 6.2.10 of the HKASP” (see paragraph 4 of the Second Affirmation of Mr Alex Chan dated 10 May 2018).

30.  The amendments to the HKASP were foreshadowed in the First Affirmation of Mr Alex Chan made on 29 June 2017, where he stated the following at paragraph 60:-

“On an entirely without prejudice basis and solely with a view to saving costs and time of the Court and the parties involved in arguments over a matter which may well be academic, the [Authority] will take the opportunity of the regular review of the HKASP … to consider the need to amend the HKASP (in particular, paragraph 6.2.10 thereof) to clear any doubts as regards the Government’s true intention of the HKASP as set out above, i.e. the presence of the passenger (i.e. the owner) is only required during secondary screening of cabin baggage).”

31.  The relevant amendments were proposed by the CAD at a meeting of the Aviation Security Committee (“ASC”) on 12 March 2018, and endorsed by the ASC at that meeting.  They were approved by the Permanent Secretary for Security, acting under the delegated authority of the Secretary for Security, on 27 April 2018, and became effective as from that date.  The holders of the HKASP were informed of the amendments on 30 April 2018.

32.  After the amendments, Sections 6.2.6 to 6.2.11 of Part 6 of the HKASP (“the Post-April 2018 Version”) state as follows (with the relevant amendments being deleted or underlined for ease of reference):-

“6.2.6 The airport manager shall ensure that a passenger … and his cabin baggage are screened to a standard sufficient reasonably to detect a restricted article, before the passenger or cabin baggage is permitted access to an area set aside for processing embarking passengers and crew within an enhanced security restricted area…

6.2.7 The screening of a passenger and his cabin baggage shall be with the consent of the passenger, which normally is tacit since access to the enhanced security restricted area shall be conditional on the passenger undergoing such screening…

6.2.8 A reasoned secondary screening shall be conducted to account for all unidentified objects on a passenger that has set off a security equipment alarm (usually an archway metal detector). This secondary screening may either be typically by hand or it may be conducted using a hand held metal detector supported by a hand search. A reasoned secondary screening shall also be conducted of a passenger’s cabin baggage, where any items of a suspect nature have been detected during x-ray examination. This secondary screening shall be conducted by hand and may be supported by a trace detection system to examine those items which are difficult to be searched by hand.

6.2.9 A reasoned secondary screening of a passenger and his cabin baggage shall also be conducted if, in the judgment of the screener, the passenger displays undue nervousness or arrogance or who appears to evade screening, conceal an item or in any other way suggests that he may have a restricted article.

6.2.10 All screening of cabin baggage shall be conducted in the presence of the passenger.

6.2.1110 In addition to any reasoned secondary screening described in sections 6.2.8 and 6.2.9, the Aviation Security Authority may prescribe a percentage of random secondary screening of passengers and their cabin baggage corresponding to the prevalent threat level. This random secondary screening shall be conducted by hand in the same manner as prescribed in section 6.2.8. The percentage threshold may be set in relation to threat level and may be adjusted commensurate with any change in the threat.

6.2.11   All reasoned secondary screening and random secondary screening of cabin baggage shall be conducted in the presence of the passenger.”

THE ADDITIONAL EVIDENCE SUMMONS

33.  On 4 June 2018, the Respondents issued a summons (“the Additional Evidence Summons”) seeking leave to file and rely on the Second Affirmation of Mr Alex Chan dated 10 May 2018 relating to the aforesaid amendments to the HKASP at the substantive hearing of the application for judicial review.

34.  Ms Gladys Li, SC (for the Applicant) opposed the Additional Evidence Summons on the ground that the Second Affirmation of Mr Alex Chan was irrelevant to the determination of the true meaning of the relevant provisions of the HKASP in force at the time of the Unattended Baggage Incident, but agreed that the evidence could be admitted on a de bene esse basis.

35.  I agree with Ms Li that the amendments to the HKASP made in April 2018 are not admissible for the purpose of construing the Pre-April 2018 Version of the HKASP.  Mr Benjamin Yu, SC (for the Respondents) has not argued otherwise.  However, the amendments are relevant for the purpose of determining the question of whether the present application for judicial review has been rendered academic by the amendments and therefore the application should be dismissed.  I shall admit the Second Affirmation of Mr Alex Chan for this limited purpose only.

THE RESTRICTED EVIDENCE SUMMONS

36.  On 13 June 2018, the Respondents issued a summons (“the Restricted Evidence Summons”) seeking the following relief:-

“(1) Counsel for the Applicant and Respondents shall not read out or otherwise disclose the contents of the Respondents’ affidavit evidence set out in Schedule 1 attached hereto (‘the Restricted Evidence’) at the substantive hearing of these proceedings;

(2) If any part of the judgment to be entered by the Court in this action contains the Restricted Evidence –

(a) such judgment shall only be provided to the parties and their legal representatives in this action, and shall not be made available to the public;

(b) the parties shall have permission to refer to and disclose the contents of such judgment, provided that they shall not refer to or otherwise disclose in whatever manner any of the Restricted Evidence contained therein.”

37.  For ease of reference, Schedule 1 to the Restricted Evidence Summons is reproduced as an Annex to this judgment.

38.  In support of the Restricted Evidence Summons, Mr Yu argued that the materials sought to be protected from disclosure were highly sensitive from a security perspective such that indiscriminate dissemination and publication might be inimical to the public interest.  It was further said that unnecessary dissemination of the evidence beyond the Applicant and her immediate legal team would give rise to serious potential threats to the safeguarding of aircraft, passengers and crew members at the HKIA.

39.  Ms Li objected to the Restricted Evidence Summons, primarily on the basis of the fundamental principle of open administration of justice.  She also argued that the majority of the materials sought to be protected which were relevant to the application was already in the public domain, eg the ICAO documents could easily be purchased, the relevant provisions of the HKASP and HKIA-ASP were annexed to a Legco paper which was publicly available, and the normal passenger and baggage screening procedures adopted at the HKIA were known to the considerable number of travellers who passed through the HKIA on their way out of Hong Kong every day.

40.  After hearing submissions from Mr Yu and Ms Li at the hearing on 20 June 2018, I informed the parties that I was not prepared to accede to the Restricted Evidence Summons, with reasons to be given later.

41.  The principle of open administration of justice which is being practised in this jurisdiction were considered comprehensively by the Court of Appeal in Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354.  The following principles were stated in the judgment of Cheung CJHC (with whom Lam JA, as he then was, agreed):

“19. First and foremost, ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’: R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, per Lord Hewart CJ. Open administration of justice is a fundamental principle of common law: Scott v Scott [1913] AC 417; R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227; Re BU [2012] 4 HKLRD 417. It is of great importance, from the perspective of administration of justice, for a number of reasons. The public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966, 977E/F‑G.

20. Second, from the litigants’ perspective, open justice also gives effect to their rights to a public hearing guaranteed in article 10 of the Hong Kong Bill of Rights.

21. Third, from the public’s point of view, open justice, which carries with it the freedom to attend proceedings and to report on them, gives substance to the media’s right to freedom of expression including the freedom to seek and impart knowledge, guaranteed under article 16(2) of the Hong Kong Bill of Rights. Likewise, it enables the public to enjoy their right to seek and be imparted with knowledge guaranteed under the same article.

22. Fourth, all this means that any restriction on open administration of justice necessarily represents a compromise of these important interests, rights and freedoms, and must be justified by considering and balancing all pertinent interests, rights and freedoms, including in particular those mentioned above.

23. Fifth, the case law has firmly established that the following considerations or matters do not by themselves justify any restriction on open administration of justice …..

26. Sixth, however, open justice is, from the perspective of proper administration of justice, just a means, albeit an important one, to an end, that is, the doing of justice between the parties concerned: Scott v Scott, at p 437; Ex parte New Cross Building Society, at p 235E. It therefore follows that where open administration of justice in a case would frustrate that ultimate aim of doing justice, it is a most important if not decisive consideration to take into account when balancing the relevant interests, rights and freedoms involved, to decide whether open justice should be restricted, and if so, by what means and to what extent.

27. The case law has very often expressed this in terms of a requirement of ‘necessity’, that is, where justice would be frustrated if open administration of justice in a particular case is not restricted, then, to the extent necessary to prevent that from happening, there may be restriction on doing justice openly.

…..

31. Seventh, apart from the interests of justice, there are other similarly important considerations that may justify restriction on open justice. Thus article 10 of the Hong Kong Bill of Rights also mentions ‘reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of all parties so requires’ as exceptions to the requirement of a public hearing. See, for instance, In re Guardian News and Media Ltd [2010] 2 AC 697 (right to respect for private and family life).

32. Eighth, where justice can be administered openly in the case itself, but to do so would or might jeopardise some right or interest of one or both of the parties outside of the case, whether open justice should be restricted and if so, the manner and extent of restriction, must be considered by conducting the balancing exercise already described. One common example is cases concerning refugees or torture claimants where it is said that the life, limb or liberty of the refugee or torture claimant or their family is or may be put at risk in the absence of some form of restriction on open justice: R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 4 All ER 975; Re BU.

…..

34. Ninth, there are other miscellaneous but by no means insignificant considerations that, if relevant, should be taken into account in conducting the balancing exercise. For instance, the nature of the proceedings is relevant: Ex parte Kaim Todner, at p 978C‑D/E. In particular, proceedings by way of judicial review relate to decisions made in the public field, and as a general rule, they must be held in public, as the public has a legitimate interest to be informed about them, unless justice would be denied: Re The Takeovers & Mergers Panel, at p 381I; Sit Ka Yin Priscilla v Equal Opportunities Commission, at p 281D. This is an additional consideration to the general consideration about the media’s and the public’s right to know based on article 16(2) of the Hong Kong Bill of Rights discussed in paragraph 21 above.

35. Moreover, it is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of proceedings: Ex parte Kaim Todner, at p 978D/E‑G.

36. Tenth, where restriction on open justice is justified, it may take many forms, depending on how all pertinent interests, rights and freedoms should best be balanced.  For instance, in the present case, the applicant asks for a blanket order for the hearing to be held in camera.  Alternatively, it asks for a partial censor of the contents of the submissions to be ventilated in open court.  Sometimes, a court may impose reporting restrictions on proceedings held in public.  At other times, the court may simply restrict the identification of the parties involved in the proceedings: In re Guardian News and Media Ltd [2010] 2 AC 697; Re BU.”

42.  It is clear that any deviation from the principle of open administration of justice must be properly justified. Whenever the court is being asked to deviate from this fundamental principle, it has to carry out a balancing exercise which, I consider, ought to carry a heavy tilt in favour of maintaining open justice in view of the First, Second and Third principles stated by the Court of Appeal.

43.  In the present case, the central issues between the parties are fairly narrow.  A lot of the materials referred to in Schedule 1 are not strictly relevant to the issues, and did not have to be, and indeed were not, referred to at the hearing (as I was assured by Ms Li).  Neither do they have to be referred to in this judgment.  The main materials which require consideration are the relevant provisions in the HKASP and HKIA-ASP which, as pointed out by Ms Li, are already in the public domain.  Also, such of the materials listed in Schedule 1 which were read out in open court, or are referred to or set out in this judgment, cannot, in my view, be said to be of such a sensitive nature that disclosure thereof to the public would give rise to any real or substantial security concerns.  I also bear in mind that the present application is an application for judicial review which, rightly or wrongly, has attracted considerable public attention.  For all these reasons, I do not consider that there is any sufficient basis to grant the order sought by the Respondents under the Restricted Evidence Summons.

THE APPLICATION SHOULD NOT BE DISMISSED WIHTOUT CONSIDERATON OF ITS SUBSTANTIVE MERITS ON THE SOLE GROUND THAT IT HAS BECOME ACADEMIC

44.  I accept that, under the Post-April 2018 Version of the HKASP, the presence of the passenger at the primary screening of his cabin baggage is not required.  That this is so is clear from the fact that the new Section 6.2.11 expressly provides that “[a]ll reasoned secondary screening and random secondary screening” of cabin baggage shall be conducted in the presence of the passenger.  By singling out “secondary screening” for mention in the new Section 6.2.11, the clear implication, I consider, is that the presence of the passenger is not required at the primary screening of his cabin baggage.

45.  Hence, the current application may be said to be academic in the sense that the declaratory relief sought by the Applicant will have no further utility.  It does not necessarily follow, however, that the court should dismiss the application without consideration of its substantive merits.  Whether the court should do so involves an exercise of judicial discretion.  Guidance on the approach that the court should adopt in the exercise of its discretion in such circumstances can be found in the judgment of the Court of Appeal in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, at paragraph 20 per Ma CJHC (as he then was, with whom the other two members of the Court of Appeal agreed):-

“Where it is contended, as the Commissioner has maintained in the present appeal, that the question before the court is academic or hypothetical, the following factors will feature in the court’s approach (they are by no means exhaustive since this question can arise in a number of different contexts):-

(1) Where a question is purely hypothetical or academic in the sense that there are simply no events that have occurred that form the basis for the question to be answered, a court will not entertain it. However relevant or even important the question may be, the court will not give an advisory opinion on hypothetical facts. There are principally two reasons for this: first, the court’s function is to adjudicate on real disputes, not imaginary ones and secondly, to decide on points of law or principle when there are no facts before the court is not only undesirable, it can have unfortunate or even dangerous consequences. In this situation, the court will not have any jurisdiction to determine the question.

(2) Sometimes, however, and the present case is one, the question before the court is said to be hypothetical or academic only because the real dispute that drove the parties to litigation (sometimes called the lis) happens no longer to be in existence at the time of the hearing, even though the relevant facts giving rise to the dispute were real and had actually taken place…

(3) In the type of situation referred to in the previous paragraph, the court does have jurisdiction to hear and determine the question in issue. However, in deciding whether or not to do so (and this can be said to be a matter of discretion), the court will closely examine the relevance or utility of any decision. In the public law sphere, this may be easier to demonstrate than in relation to private rights. This is because very often in public or administrative law cases, the duties of public bodies fall to be exercised on a continuing basis not only in relation to the parties before the court but also perhaps to others in the future…

(4) In other public law contexts, the court may consider determining issues where, for example, there are conflicting decisions…”

46.  The present case falls within sub-paragraph (2) above.  It is therefore one which the court has jurisdiction to hear and determine the question in issue.  Although this case cannot be fit within the situations mentioned in sub-paragraphs (3) or (4) above, it is clear from the opening sentence in paragraph 20 of the judgment of the Court of Appeal that the “factors” mentioned in those sub-paragraphs are not meant to be exhaustive.

47.  In the circumstances of this case, the injustice of dismissing the application for judicial review without consideration of its substantive merits simply because the Secretary for Security has exercised the power to amend the relevant regulations after the event would be stark.  In this regard, it is relevant that the Government was plainly aware that an issue had been raised on whether AAHK/AVSECO had acted contrary to the applicable cabin baggage screening regulations in their handling of the Unattended Baggage Incident even before the commencement of these proceedings.  The Government sought to address that issue by preparing and submitting a Legco Paper No CB(2)1381/15-16(04) dated April 2016 to the Legislative Council Panel on Security, and issuing a press release on 25 April 2016.  The present application was first made by the Applicant on 24 June 2016.  The Secretary for Security could have amended the relevant provisions of the HKASP at any time prior to the hearing of the leave application in February 2017 if there were “any doubts as regards the Government’s true intention of the HKASP” (as alleged by Mr Alex Chan in paragraph 60 of his First Affirmation) which required to be cleared.  While the Secretary for Security might well have been be under a duty to consult the Aviation Security Committee before amending the HKASP, it has not been suggested that he would encounter any difficulty in the present case, particularly where, according to Mr Chan, the purpose of the amendments was not to effect any change of substance.

48.  As it was, the Secretary for Security did not amend the HKASP prior to the leave hearing.  Nevertheless, the Respondents contended at that hearing that the application for judicial review was academic (based on a different argument).  After the court had rejected that contention, the CAD and the Security for Security then took steps to amend the HKASP.  Mr Alex Chan stated at paragraph 4 of his Second Affirmation that the Secretary for Security took the opportunity of a regular review of the HKASP to consider the relevant amendments “solely with a view to saving costs and time of the Court and the parties involved in arguments over a matter which may well be academic” [emphasis added].  In other words, the target of the amendments was the present litigation.  It may be argued that the Respondents in the present application are AAHK and AVSECO, not the Government.  There cannot, however, be any serious doubt that they stand on the same side in the present case, as evidenced by the fact that the Principal Assistant Secretary for Security made two affirmations in these proceedings apparently under the authority, and on behalf, of AAHK and AVSECO, notwithstanding the fact, as Ms Li remarked at the hearing on 20 June 2018, that the Secretary for Security, through his delegates, was supposed to be the regulator, or exercise regulatory oversight, in respect of AAHK/AVSECO’s implementation of the relevant security regulations under the HKASP/HKIA-ASP.

49.  In all the circumstances, I consider that it would plainly be unjust to the Applicant to dismiss her application on the sole ground that it is “academic”, an argument which is made possible only because the Secretary for Security has changed the relevant regulations after the event.  I should add that the court would, in any event, need to form at least some preliminary views on the merits of the application in order to properly deal with the question of costs.

PRESENCE OF PASSENGER REQUIRED AT PRIMARY SCREENING OF CABIN BAGGAGE UNDER PRE-APRIL 2018 VERSION OF HKASP

50.  In relation to the proper approach for the construction of the HKASP, Mr Yu submits that the following principles are relevant and applicable:-

(1)   Since the HKASP is a technical document with a limited circulation, it should be interpreted in the manner that an expert in the area would understand the document.  For this purpose, it is necessary to appreciate any special or technical meaning which experts may attribute to particular items (see Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478, at paragraphs 23 and 30).

(2)   All provisions of the HKASP should be read together, as a purposive unity in its appropriate legal and social setting (see Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144, at 154A-C per Bokhary PJ).

(3)   As in relation to the interpretation of a statute, when interpreting the HKASP, the court should adopt a purposive approach, having regard to the document’s context and purpose.  Context and purpose are to be considered in any interpretative exercise, and not only when an ambiguity may be thought to arise (see HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, at paragraphs 11-14 per Li CJ; Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, at paragraph 76 per Ma CJ; Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351, at paragraph 15 per Ma CJ).

(4)   Extrinsic materials may in appropriate circumstances assist in informing the court of the context or purpose of the legislation or instrument in question (see Ho Kwok Tai v Collector of Stamp Revenue [2016] 6 HKC 268, at paragraph 59; Cheung Kwun Yin, at paragraphs 15-16).

(5)   The court will presume that the drafter did not intend to produce consequences which are objectionable or undesirable, or absurd, or unworkable or impracticable, or merely inconvenient, or anomalous or illogical, or futile or pointless (see R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209, at paragraph 116 per Lord Millet; see also T v Commissioner of Police (2014) 17 HKCFAR 593, at paragraph 281 per Lord Neuberger).

51.  The above principles are not controversial.  I would, however, add three observations.  First, in respect of the principle mentioned in (1) above, there are no technical words in the relevant provisions of the HKASP to which an expert in the aviation security field may attribute special meanings such that expert evidence would be particularly relevant.  In any event, the true meaning and effect of the HKASP is a matter of law for the court, and not for the expert, to decide (see Shiu Wing Steel Ltd, at paragraph 30).  As for the relevance of the drafting history of Section 6.2.10 of the HKASP, I shall deal with that matter separately below.

52.  Second, in respect of the principle mentioned in (3) above, although the court should always have regard to the context and purpose of the legislation whenever it is required to construe the legislation, it remains the case that the court’s task is to ascertain the intention of the legislature “as expressed in the language of the statute” objectively.  See:-

(1)   Cheung Kwun Yin, at paragraph 11 per Li CJ –

“In interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute. This is of course an objective exercise. The court is not engaged in an exercise of ascertaining the legislative intent on its own.”

(2)   Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 517, at paragraph 12 per Ma CJ –

“As has been reiterated recently by this Court, the proper starting point in statutory interpretation, as well as constitutional and contractual interpretation, is to look at the relevant words or provisions having regard to their context and purpose.”

(3)   China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342, at paragraph 36 per Lord Millet –

“There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing.”

(4)   T v Commissioner of Police, at paragraph 278 per Lord Neuberger –

“The issue is one of statutory interpretation, and I agree with Ribeiro PJ and Fok PJ that the statutory language must be interpreted in the light of its context and purpose, as laid down in the cases to which he refers in paras 48 and 194 of their respective judgments. However, as Fok PJ says in para 195, that should not be seen as a judicial licence to ignore or refuse to give effect to the words which the legislature has chosen to use: when construing an Ordinance, the court is an interpreter not a legislator. When considering what is sometimes referred to as a purposive approach, it is salutary to bear in mind what was said by Lord Millett NPJ in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HFCFAR 342, para 36, quoted by Fok PJ at para 222 of his judgment.”

53.  This approach to the construction of legislation is, in my view, equally applicable to the construction of a regulatory instrument made under statute like the HKASP in the present case.

54.  Third, in respect of the principle mentioned in (5) above, the strength of the presumptions depends on the degree to which a particular construction produces an unreasonable result (see R (on the application of Edison First Power Ltd) v Central Valuation Officer, at paragraph 117 per Lord Millet).

55.  Turning to the present case, I consider it to be clear, upon the true construction of Section 6.2.10 of the Pre-April 2018 Version of the HKASP, that the presence of the passenger is required at the primary screening of his cabin baggage, for the following reasons:-

(1)   The purpose, or objective, of the HKASP, as stated in Section 1.1 of Part 1 thereof, is “to protect the safety, regularity and efficiency of international civil aviation in Hong Kong by providing, through regulations, security directions, practices and procedures, the necessary safeguards against acts of unlawful interference”.

(2)   The context of Section 6.2.10 is Part 6 of the HKASP, titled “Screening of Passengers and Cabin Baggage”, which sets out a series of requirements or procedures for carrying out screening prior to the passengers and their cabin baggage being permitted access to the area set aside for processing embarking passengers and crew within the AAHK’s Enhanced Security Restricted Area.

(3)   Also relevant for the purpose of the present discussion is the following statement in Section 1.1 of Part 1 of the HKASP - “Whenever possible, security controls and procedures should cause a minimum of interference with, or delay to the activities of, international civil aviation”.

(4)   Accordingly, when considering whether Section 6.2.10 should be construed to mean that the presence of the passenger is required at the primary screening, or only at the secondary screening, of his cabin baggage, the court should favour a construction which best promotes the purpose of aviation security, enhances the smooth and efficient operation of the screening process, and causes a minimum of interference with or delay to the activities of international civil aviation.

(5)   In relation to aviation security, it has not been suggested that requiring the passenger’s presence at the primary screening of his cabin baggage would weaken or lower the standard of protection and safeguarding of aircraft including passengers and crew operating in and through Hong Kong, of the facilities of the HKIA serving international civil aviation and of the ground personnel and the general public, although it has also been said by the Respondents that such requirement would not bring about any additional security benefit.

(6)   On the other hand, the presence of the passenger at the time of the primary screening of his cabin baggage would, I consider, facilitate the smooth and efficient operation of the screening process, eg where the screener considers that a reasoned secondary screening of a cabin bag (which, it is common ground, should be conducted in the presence of the passenger) is necessary, such screening can be carried out at once, and the passenger can immediately offer explanations and answer queries in respect of any suspicious or offending articles found inside the baggage.  On the other hand, if the passenger is absent at the time of the primary screening of the baggage, it will be necessary to locate the passenger concerned before the secondary screening can take place, with the consequence that the whole screening process will be delayed.

(7)   The construction of Section 6.2.10 that the presence of the passenger is required at the primary screening of his cabin baggage is fully consistent with, and supported by, the language actually used in that section.  Although the expression “primary screening” is not used in Part 6 of the HKASP, the expression “secondary screening” is used in Sections 6.2.8, 6.2.9 and 6.2.11, while the expression “screening” simpliciter is used in Sections 6.2.6, 6.2.7 and 6.2.10.  It is clear that the HKASP recognises that a “screening” may be either (i) a “secondary screening”, or (ii) one other than a secondary screening, which has been referred to in these proceedings as a “primary screening”.  Section 6.2.10 states that “[a]ll screening of cabin baggage shall be conducted in the presence of the passenger.”  The meaning of this section is perfectly plain – “all screening” means “all screening”, primary and secondary.  If it is intended that the presence of the passenger is required only at a secondary screening of cabin baggage, it would have been obvious to state, in Section 6.2.10, that “all secondary screening of cabin baggage shall be conducted in the presence of the passenger”.

(8)   Section 6.2.9 states that “[a] reasoned secondary screening of a passenger and his cabin baggage shall also be conducted if, in the judgment of the screener, the passenger displays undue nervousness or arrogance or who appears to evade screening, conceal an item or in any other way suggests that he may have a restricted article.”  This section clearly envisages that a passenger and his cabin baggage would first undergo a primary screening before any reasoned secondary screening of the passenger and cabin baggage may take place, and recognizes, implicitly, that the passenger would be present at the time of the primary screening of the cabin baggage, because the behaviour of the passenger is a relevant consideration for the screener to take into account when deciding whether a reasoned secondary screening of the passenger and cabin baggage should take place.  If the passenger is absent at the time of the primary screening of a baggage, the screener would have no opportunity to observe the passenger and apply the criteria mentioned in Section 6.2.9 to determine whether to carry out a reasoned secondary screening of the baggage.

56.  I shall now deal with various arguments raised by the Respondents in support of a contrary construction of Section 6.2.10 of the HKASP.

57.  First, it is argued that (i) Section 6.2.10 must be read together with Sections 6.2.8 and 6.2.9 which immediately precede it, and Section 6.2.11 which follows immediately after, and those provisions deal with reasoned and random secondary screening, not primary screening, (ii) Sections 6.2.6 and 6.2.7 deal with primary screening and do not mention anything about the presence of the passenger, (iii) on a structural analysis, Sections 6.2.8 to 6.2.11 are intended to deal with the same subject matter (ie secondary screening), and (iv) the Applicant’s interpretation which construes “screening” in Section 6.2.10 as meaning both primary and secondary screening is incongruent with the internal structure of Sections 6.2.8 to 6.2.11 of the HKASP.  I do not consider that Section 6.2.6 (which requires that the passenger and his cabin baggage shall be screened to a standard sufficient reasonably to detect a restricted article), and Section 6.2.7 (which provides that the screening of the passenger and his cabin baggage shall be with the consent of the passenger), deal only with primary screening but not secondary screening.  I accept the fact that Section 6.2.10 is sandwiched between Sections 6.2.8/6.2.9 and Section 6.2.11, which concern secondary screening, lends some support to the Respondents’ argument that Section 6.2.10 should also be read as being concerned with secondary screening only.  However, the force of this argument is considerably weakened, in my view, by the different words or language used in those sections (ie “all screening” in Section 6.2.10 and “secondary screening” in Sections 6.2.8, 6.2.9 and 6.2.11).

58.  Second, it is argued that there was no requirement for the passenger to be present under the previous editions of the HKASP, and no substantive change was intended when Section 6.2.10 was introduced by way of an amendment in 2008.  In particular, it is argued that:-

(1)   The immediate predecessor to Section 6.2.10 was Section 5.5 in the 3^rd edition of the HKASP, which states as follows: “All searches of cabin baggage shall be conducted in the presence of the passenger”.  The only difference between the two provisions is that “searches” in Section 5.5 was replaced with “screening” in Section 6.2.10.  The wording of Section 5.5 remained basically unchanged since the HKASP was first introduced in 1996 (the earlier, 1^st and 2^nd, editions states as follows: “All searches of hand baggage shall be conducted in the presence of the passenger”).

(2)   The draftsman (Mr Craig Bradbrook) of the 1^st edition of the HKASP has explained that “searches” refers to physical (or manual) searches by hand conducted at secondary screening only.  A “search” does not occur at the primary screening which involves an x-ray examination, and not a physical search of the cabin baggage.

(3)   Ever since the HKASP was first introduced in 1996, the requirement that “all searches” of baggage shall be conducted in the presence of the passenger referred to secondary screening only.

(4)   The replacement of the word “searches” with “screening” in the re-numbered Section 6.2.10 of the 4^th edition of the HKASP (ie the Pre-April 2018 Version) was “editorial” in nature, as stated in a summary table of the amendments leading to Section 6.2.10 prepared by the Security Bureau (as secretariat to the ASC) in around November 2007 for consideration by the ASC during the amendment exercise.  No substantive change to the original meaning was intended when the amendment was made.  The editorial change to Section 6.2.10 was consistent with the editorial changes simultaneously made to Sections 6.2.8, 6.2.9 and 6.2.11 which also replaced “searches” with “screening”.

(5)   There is no indication throughout the amendment process, whether by way of paper submissions prepared for the ASC or discussion at ASC meetings, that the amendment leading up to Section 6.2.10 was one which signified a change in policy as to the screening process.

59.  When considering the drafting history of Section 6.2.10 for the purpose of arriving at its true construction, one should be clear as to what matters are relevant and what matters are irrelevant to take into account.  It is well established that evidence of the drafter’s view as to the meaning and effect of the legislation to be construed is generally irrelevant. In Hilder v Dexter [1902] AC 474, Lord Halsbury LC stated at 477 as follows:-

“My Lords, I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended, though, perhaps, it was not done.”

60.  This principle is, I consider, equally applicable to the construction of an instrument such as the HKASP, being a regulatory instrument made under statute.  For this reason, I do not consider that any weight should be given to the subjective understanding or intention of Mr Bradbrook as to the meaning or effect of Section 5.5 in the 1^st edition of the HKASP.  On the other hand, the objective background and purpose of a legislation, as well as the mischief sought to be remedied by it, are relevant matters for consideration.

61.  In any event, the provision now under consideration is not Section 5.5 in the 1^st edition of the HKASP, but Section 6.2.10 in the 4^th edition of the HKASP.  As earlier mentioned, the word “searches” in Section 5.5 of the 1^st, 2^nd and 3^rd editions of the HKASP was replaced with “screening” in Section 6.2.10 in the 4^th edition of the HKASP.  Generally speaking, a deliberate change of words which bear different meanings in a provision may signify an intention to change the meaning or effect of that provision.  In the present context, it is clear that “screening” carries a wider meaning than “search”:-

(1)   In the Manual (5^th edition, 1996), whose provisions relating to the screening of passengers and cabin baggage (ie Clauses 4.2.1 to 3.2.15) were intended to be reflected in the relevant provisions of the 1^st edition of the HKASP (ie Sections 5.1. to 5.7), there was a clear distinction drawn between “screening” and “manual search”, with the former being expressly defined to include the latter: see Clause 4.2.2 of the Manual, which states that “[s]creening of passengers and cabin baggage may be carried out by the use of metal detectors, X-ray devices, and other devices, by manual search or by a combination of both”.

(2)   Also, as mentioned in paragraph 24 above, the word “screening” is specifically defined in the HKASP to mean “[t]he application of technical or other means which are intended to identify and/or detect weapons, explosives or other dangerous devices, articles or substances which may be used to commit an act of unlawful interference”.  Again, that definition is apt to include within its wide ambit “search” or “manual search”.

(3)   Hence, those engaged in the aviation security field should be well aware of the distinction between “screening” and “search”/“manual search”, and should not regard the two concepts as being interchangeable with one another.

62.  In my view, an objective consideration of the matter does not support the Respondents’ contention that no change to the meaning or effect of the former Section 5.5 was intended by the 2008 amendment.  I have not lost sight of the fact that there is evidence that those engaged in the amendment exercise considered, or was given to understand, that the change from “searches” to “screening” was merely editorial in nature and was not intended to effect any change of substance.  I have considerable reservation as to whether it is permissible to take into account the internal drafting process or the subjective understanding of those engaged in the amendment exercise to discover the true meaning of the final amended provision.  On the assumption that such evidence is admissible, I consider, nevertheless, that it should not override, or distort, the clear meaning and effect of Section 6.2.10 in the 4^th edition of the HKASP.

63.  Third, reliance is placed on the fact that (i) the HKASP is designed to meet the International Standards and Recommended Practices  (“SARPs”) in relation to international aviation security set out in Annex 17, and (ii) there is no obligation imposed by the ICAO, Annex 17 or the Manual requiring the presence of the passenger at the time of primary screening, and it is said that there is no evidence to suggest that the underlying intent of the HKASP is to depart from the ICAO requirements and establish a new requirement over and above the internationally accepted standards in Annex 17 and the Manual with regard to the presence of the passenger/owner of the cabin baggage at the primary screening stage.  The matters stated in (i) and (ii) above are not controversial: see Section 1.3 of Part 1 of the HKASP for (i), and the ICAO’s letter to the Director-General of Civil Aviation dated 28 March 2017 for (ii).  It seems to me, however, that while the fact that the HKASP is designed to meet the SARPs contained in Annex 17 would militate against any construction of the HKASP which imposes a less stringent requirement for carrying out security screening of passengers and cabin baggage, it is a different matter whether the HKASP imposes a different, or more stringent, requirement in relation to such security screening.  In so far as it is argued that there is no evidence to suggest that the intent of the HKASP is to depart from the ICAO requirements and impose a new requirement over and above those contained in Annex 17 and/or the Manual, I consider such intention can be found from the language employed in Section 6.2.10 of the HKASP.

64.  Fourth, the Respondents argue that there is nothing in the HKIA-ASP which requires the presence of the passenger at the primary screening of cabin baggage with x-ray equipment.  The Respondents also rely on the fact the HKIA-ASP has been audited and inspected by the CAD which has not requested for any amendments to be made to the HKIA-ASP to provide for a requirement of passenger presence during the primary screening of cabin baggage, and argue that this fact shows that the HKIA-ASP is considered to be consistent with the requirements of the HKASP.  In my view, the fact that the HKIA-ASP does not expressly require the passenger to be present at the primary screening of his cabin baggage is consistent (or not inconsistent) with either the Applicant or the Respondents’ construction of Section 6.2.10 of the HKASP.  The issue in the present case, however, is whether the requirement of passenger presence during the primary screening of cabin baggage is imposed by the HKASP, in particular Section 6.2.10 thereof, which, it is not disputed, is required to be observed by AAHK and AVSECO.  The CAD’s understanding, or misunderstanding, of the meaning and effect of Section 6.2.10 of the HKASP is irrelevant to its true construction which is a matter of law.

65.  Fifth, it is argued that there are valid reasons to require the presence of the passenger at the secondary screening stage, namely, to reduce any disputes about the ownership of the bag and to facilitate the manual search of it, but these reasons have no import in the case of a primary screening.  It seems to me the fact that there are valid reasons to require the presence of the passenger at the secondary screening stage, and that such reasons have no import in the case of a primary screening, has no bearing on the critical question of whether the presence of the passenger is required at the primary screening stage.  For reasons mentioned in paragraph 55(6) above, I consider that there are also valid reasons to require the presence of the passenger at the primary screening stage.

66.  Sixth, it is argued that the Applicant’s interpretation would lead to unintended and undesirable consequences and operational difficulties in implementation.  In particular, it is said that under the Applicant’s interpretation:-

(1)   it is doubtful whether parallel divestment can continue in its present form or at all, because the passenger who has properly divested himself of his cabin baggage and personal items before the passenger in front has done so will have to wait for that passenger to complete the process and go through the AMD before the faster passenger can go through the AMD at the same time as his cabin baggage (see paragraph 52 of the Second Affidavit of Mr John Lamond, General Manager of the Safety, Security & Business Continuity Department of the Airport Management Division of AAHK);

(2)   it would create delay in the screening process, because (amongst other things) the passengers would have to be asked to confirm ownership of the bags/items prior to the primary screening, and there could be language issues if AVSECO officers have to explain to passengers from all over the world the need for verification of ownership prior to such screening (see paragraphs 54 to 55 of Mr Lamond’s Second Affidavit);

(3)   it would create significant problems for passengers travelling together, in that a requirement that the passenger shall be present at the primary screening of his cabin baggage would mean that (i) passengers travelling together would no longer be able help each other with the carrying of their cabin baggage (eg a younger member of a group of passengers travelling together may carry the baggage of an older member when they go through security screening), and (ii) they would lose the flexibility of going through security screening at different times and still be able to help carry each other’s cabin baggage, which may lead to complaints, monetary claims and other challenges as well as a perception that the HKIA is a passenger-unfriendly airport (see paragraphs 56 to 57 of Mr Lamond’s Second Affidavit); and

(4)   it would also mean that AAHK and airlines will no longer be able to provide the courtesy service of delivering lost and found items from the non-Enhanced Security Restricted Area to the Enhanced Security Restricted Area on behalf of passengers, and this would lead to “significant” inconvenience to passengers (see paragraphs 58 to 60 of Mr Lamond’s Second Affidavit).

67.  I have some reservations on the alleged consequences or operational difficulties which it is alleged would arise from the requirement that the passenger be present at the time of the primary screening of his cabin baggage, and/or the extent or seriousness of the alleged consequences or difficulties.

(1)   In respect of (1), I do not consider that a requirement that the passenger should be “present” at the time of the primary screening of his cabin baggage would mean that the passenger has to pass through the AMD literally at the same time, or simultaneously, as his cabin baggage is undergoing X-ray screening.  It seems to me that a passenger who is just a few feet away from his cabin baggage while it is being screened by X-ray equipment can properly, without straining the language, be said to be “present”.

(2)   In respect of (2), I am also unable to see why such requirement would mean that AVSECO officers have to explain to the passengers the need for verification of ownership of their cabin baggage prior to the primary screening.  Leaving aside for the moment that the relevant requirement is the presence of the “passenger” and not “owner”, I do not see why notice of the requirement cannot be given to passengers by other more obvious means, eg display of prominent written notices at the entrances to the airport restricted area (similar to the familiar notices one sees informing the passengers of what items may not be taken on board an aeroplane).  In any event, AVSECO officers, in their day-to-day work, have to communicate with passengers from all over the world in relation to the screening process, eg explaining what items need to be taken out of a bag and placed on an open tray, what liquid items need to be put in a transparent plastic bag, what personal items need to be divested before the passenger walks through the AMD, etc.  It has not been suggested that AVSECO officers often encounter language difficulties in practice.  As for the alleged delay to the screening process which may be caused by the requirement to confirm or verify ownership of the cabin baggage, one would have thought that a simple question and answer would, in most cases, suffice, even if one assumes that such confirmation or verification is necessary notwithstanding the giving of written notice of the relevant requirement to the passengers.

(3)   In respect of (3), there could of course be many different reasons why a passenger travelling in a group may carry, or be asked to carry, the cabin baggage of another passenger through security screening in the absence of the latter, eg a husband may carry a bag for his wife who has other errands to run prior to joining him at the boarding gate, a teacher on a study or music tour may ask a student to carry an extra bag through security screening while the teacher waits outside the airport restricted area for the arrival of a late student, or (as mentioned by Mr Lamond) a younger member of a group of passengers travelling together may carry the baggage of an older member when they go through security screening.  Leaving aside the question of whether the passenger should be regarded as being “present” (see the discussion in (1) above), as earlier mentioned, the requirement under Section 6.2.10 is satisfied by the presence of the “passenger”, not the “owner”, at the primary screening of the cabin baggage.  Since the parties have not made any detailed submissions on the meaning of the word “passenger” in the present context, in particular whether the reference to the “passenger” must be a reference to the “owner” of the baggage, I do not propose to express any concluded view on the meaning of “passenger”, save to say that I am far from being satisfied that the word may not be given a meaning which can readily encompass at least some of the situations mentioned above (although however wide one reads the word “passenger” in Section 6.2.10, it could not, I believe, include the airline staff who took the Bag through security screening in the late evening of 27^th or early morning of 28^th of March 2016 in the Unattended Baggage Incident).  As for the suggestion that the HKIA may be perceived as being a passenger-unfriendly airport as a result of the imposition of the requirement that the passenger must be present at the time of the primary screening of his cabin baggage, it is a fact of life that different airports and jurisdictions impose different immigration and/or customs restrictions, some considerably tighter than others.  There is no reason to believe that the vast majority of the travelling public would not show understanding of, and willingly respect and observe, the local rules and regulations.

(4)   In respect of (4), the suggestion that AAHK provides a courtesy service of delivering lost and found items from the non-Enhanced Security Restricted Area to the Enhanced Security Restricted Area on behalf of passengers does not sit well with the evidence that AAHK’s staff declined to deliver the Bag to Ms Leung when asked to do so in the Unattended Baggage Incident (see paragraph 2.5 of AAHK’s Report dated April 2016, and the entry next to “0015” in Attachment A2 to AAHK’s Report).  Further, there is no information on matters such as the frequency with which such service is provided by AAHK or airlines, how such service is advertised or made known to the travelling public, and whether such service is provided to the travelling public generally or only to a few selected groups.  It is thus not possible to judge the degree or extent of inconvenience that may be caused to passengers without such service.

(5)   Overall, although I accept that some degree of operational difficulties or inconvenience may be caused as a result of a requirement that the passenger should be present at the primary screening of his cabin baggage, I am not convinced that the difficulties or inconvenience are such as would justify the court in not giving effect to the clear words and meaning of Section 6.2.10 of the Pre-April 2018 Version of the HKASP.

68.  Lastly, I should briefly deal with the issue of the Applicant’s standing or interest in the matter to which the present application relates, an issue which I left open for further consideration when I granted leave to the Applicant to apply for judicial review in February 2017. Since that time, I have had an opportunity to consider the question of standing in judicial review in Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93, at paragraphs 32 to 35, which I do not propose to repeat in this judgment, save to mention that I expressed the view (i) at paragraph 34(1), that where the decision affects the applicant’s personal right or interest over and above that of the general public or a section of the public, the applicant should have little difficulty in showing a sufficient interest in the matter to which the application relates, and (ii) at paragraph 34(5), that notwithstanding the modern trend to liberalise the requirement of standing in judicial review, the need to show a sufficient interest remains an important filter to keep judicial review within its proper bounds and to prevent abuse of the court’s process.

69.  In the present case, the Applicant is and, at the material time, was a flight attendant as well as an ExCo member of the Hong Kong Dragon Airlines Flight Attendants Association (“FAA”).  Her concern was whether a flight attendant ought to be allowed or required to bring unattended baggage through security screening to the restricted boarding area without the presence of the passenger.  It seems to me that the Applicant can properly be said to have some personal right or interest over and above that of the general public or a section of the public on this issue.  I may add that, as a flight attendant and an ExCo member of the FAA, the Applicant would also have a legitimate interest in the question of whether allowing a cabin bag to go through security screening in the absence of the passenger was consistent with the relevant regulations relating to the screening of passengers and cabin baggage at the HKIA.  In no way can it be said that the Applicant is a “mere busybody”, or that the present application is an abuse of the court’s process.

70.  The Respondents argue that court is entitled to take a stricter view on the issue of the Applicant’s standing because the present challenge is “academic”.  I have already explained why I consider it would be unjust to the Applicant to dismiss her application solely on the ground that it has been rendered academic by the Secretary for Security’s decision to change the relevant regulations after the event.  I consider that it would be equally unjust to the Applicant to do so on the ground of lack of standing which ground arises as a result of the same decision.

DISPOSITION

71.  For the foregoing reasons:-

(1)   I grant leave to the Respondents to adduce and rely on the 2^nd Affirmation of Chan Yuen Tak, Alex dated 10 May 2018 at the substantive hearing of the application for judicial review under the Additional Evidence Summons;

(2)   I dismiss the Restricted Evidence Summons; and

(3)   I make a declaration that the AAHK Decision and the AVSECO Decision were contrary to Section 6.2.10 of the Pre-April 2018 Version of the HKASP in force as at the time of the Unattended Baggage Incident.

72.  I also make an order that the Respondents shall pay to the Applicant the costs of this application for judicial review, as well as the costs of the Additional Evidence Summons and Restricted Evidence Summons, to be taxed if not agreed with certificate for 2 counsel.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

73.  Lastly, it remains for me to thank counsel for their assistance rendered to the court.

Annex

Schedule 1

All references to and requirements of or in relation to airport security policies, procedures, standards, practices, guidance and considerations (to the extent that the same is not already in the public domain), including:

1.   Such portions of an identified edition of the Hong Kong Aviation Security Programme (“HKASP”) as are quoted in the relevant paragraphs or exhibited to the affidavit evidence relied on by the 1^st and 2^nd Respondents

2.   Such portions of an identified edition of the International Civil Aviation Organisation’s (“ICAO”) Doc 8973, ie the Aviation Security Manuals as are quoted in the relevant paragraphs or exhibited to the affidavit evidence relied on by the 1^st and 2^nd Respondents

3.   Such portions of an identified edition of the Hong Kong International Airport Security Programme (“HKIA-ASP”) as are quoted in the relevant paragraphs or exhibited to the affidavit evidence relied on by the 1^st and 2^nd Respondents

4.   Such portions of an identified version of the Aviation Security Company Limited (“AVSECO”) Security Procedures Manual and Action Cards as are quoted in the relevant paragraphs or exhibited to the affidavit evidence relied on by the 1^st and 2^nd Respondents

5.   Sketches of the airport security screening channel layout exhibited to the affidavit evidence relied on by the 1^st and 2^nd Respondents

6.   Correspondences between the Civil Aviation Department and ICAO exhibited to the affidavit evidence relied on by the 1^st and 2^nd Respondents

6A. All processes (whether past, present or prospective) of or in relation to security screening at the Hong Kong International Airport as set out in the relevant paragraphs of the affidavit evidence relied on by the 1^st and 2^nd Respondents

7.   Processes and considerations of or in relation to drafting and amending the HKASP/HKIA-ASP/AVESCO Security Procedures Manual as set out in the relevant paragraphs of the affidavit evidence relied on by the 1^st and 2^nd Respondents

8.   Documents and communications in relation to Aviation Security Committee of the HKSAR Government’s review of Amendment 11 to ICAO Annex 17 as set out in the relevant paragraphs of the affidavit evidence relied on by the 1^st and 2^nd Respondents

9.   Documents and communications in relation to Aviation Security Committee of the HKSAR Government’s proposed amendments to the HKASP as set out in the relevant paragraphs of the affidavit evidence relied on by the 1^st and 2^nd Respondents

10.   Document evidencing the delegation of power under the Aviation Security Ordinance, Cap 494 from Aviation Security Authority to the Civil Aviation Department as set out in the relevant paragraphs of the affidavit evidence relied on by the 1^st and 2^nd Respondents

11.   ICAO Working Paper on the Proposed Amendment 11 to Annex 17