8th Hong Kong Human Rights Moot

Moot Problem

23 March 2019 (Saturday)

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL APPEAL NO. 888 OF 2019
FACV 888/2019
BETWEEN
VICTORIA HAMMER 1st Applicant
ECONOMIC POST (ASIA) LIMITED 2nd Applicant
and
THE DIRECTOR OF IMMIGRATION Respondent

A. Background and Facts

1. Victoria Hammer (“Ms Hammer”), a British national, was managing editor of the Asia
edition of the Economic Post (“the EP”), a major newspaper based in London. The Asia
edition of the EP is published by Economic Post (Asia) Ltd, a Hong Kong registered
company. Ms Hammer was employed by the EP in Hong Kong, and held a valid
employment visa from 1 January 2014 until the events described herein.

2. By virtue of her role as a senior foreign correspondent, Ms Hammer had been appointed
to the post of Deputy Director of the Hong Kong Overseas Journalists’ Club (“the
Club”). The Club has physical premises in Central, and amongst other activities,
organises and hosts events and lectures judged to be of journalistic or public interest.

3. Ms Andrea Cheng (“Ms Cheng”) was the founder and chairperson of the Hong Kong
Independence Party (“HKIP”). HKIP was founded in 2014, arising out of the “occupy
Central” protests, and had as its stated goal the putting forward of candidates for
political office who favoured independence for Hong Kong.

4. On 30 October 2017, the Secretary for Security served a notice on HKIP pursuant to
section 8 of the Societies Ordinance (Cap. 151), stating that he (i.e. the Secretary) was
minded to prohibit the continued operation of the HKIP (“the Notice”). The Notice
further invited Ms Cheng to make representations as to why the party should not be
banned (“the Notice”). Enclosed with the notice was a 700-page dossier, produced by
the Hong Kong Police Force on the basis of extensive surveillance, alleging that HKIP’s
goal of achieving independence for Hong Kong was inter alia a threat national security.
The Notice gave Ms Cheng until 4 December 2017 to make any representations as to
why the party should not be banned. This was the first such occasion on which this
power had ever been exercised.

5. On 15 November 2017, the Club announced that it would be hosting a talk by Ms Cheng
on 30 November 2017 (“the Talk”). The Talk would be open to its press members and
guests, and would be chaired by Ms Hammer. Tickets for the Talk, which were free,
were snapped up in record time.

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6. The HKSAR Government and the Central People’s Government (“the CPG”) expressed
strong misgivings about the Talk, and criticised the Club for giving Ms Cheng a
platform. The Club responded in a press release explaining its decision. It stated that
while the Club expressed no position whatsoever on the content of Ms Cheng’s views,
or those of HKIP, the banning of a political party was clearly a matter of journalistic and
public interest, as evidenced by the intense interest in the issue in the community, and
in the Talk itself. The Club further stated that HKIP had not as yet been banned, and
hosting the Talk was entirely lawful, and further protected exercise of free speech, free
assembly and freedom of the press, as guaranteed under the Basic Law and Hong Kong
Bill of Rights (section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383).

7. The Talk went ahead as scheduled on 30 November 2017. It was broadcast live online
and attracted a record audience for a Club webcast. Ms Hammer gave very brief
introductory remarks, stating in substance that what Ms Cheng had to say was highly
controversial, and that the audience would judge for themselves what they thought of
it. During Ms Cheng’s prepared speech, and in answer to questions asked of her in the
Q&A at the end, Ms Cheng stated, amongst other things, that she and her party were
adverse to any form of violence; that they believed their political goals should be
pursued within the framework of the Basic Law; and that ultimately independence for
Hong Kong could realistically only be achieved with the concurrence of the CPG.
Nothing said by Ms Hammer at the talk could be construed as offering any support for
Ms Cheng and HKIP, or their views or goals.

8. On 4 December 2017 Ms Cheng put forward submissions to the Secretary for Security
opposing the banning of HKIP. On 15 December 2018, the Secretary announced that he
had decided to ban HKIP on grounds that its continued operation represented a threat
to national security.

9. Ms Hammer’s employment visa was due to expire on 31 December 2017. On 15

December 2017, the EP submitted an application to the Immigration Department for a
renewed employment visa for Ms Hammer in the usual way.

10. On 30 December 2017, the EP was informed by the Director of Immigration that the
application was refused (“the First Decision”). No reasons were given, despite an
express request for an explanation.

11. Ms Hammer happened to be abroad on 30 December 2017. When she returned to Hong
Kong on 5 January 2018 and presented at immigration, she was taken aside for
questioning. The questioned focused on the nature and purpose of her visit to Hong
Kong. Ms Hammer explained that she needed to sort out personal affairs – she and her
husband had a fully furnished apartment – and to go to the office to collect her things
and assist with the transition for a new managing editor.

12. Ms Hammer was permitted to enter Hong Kong as a visitor for a period of 7 days. British
nationals are usually permitted to enter as a visitor for up to 6 months. No reasons were
given for the departure from the usual practice. Ms Hammer later departed within with
the prescribed 7-day period.

13. On 1 February 2018, Ms Hammer returned to Hong Kong and sought admission as a
visitor. She was again taken aside and questioned about the purpose of her visit. After
a lengthy interview, Ms Hammer was told that she would not be permitted to enter

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 Hong Kong (“the Second Decision”). When Ms Hammer asked to be provided with
reasons for the Second Decision, she was told that she was not entitled to reasons, and
that none would be given.

14. Ms Hammer is not able to conceive of any other reason for the either of the Decisions
other than that they relate to her participation in the Talk.

B. Procedure
15. On 20 February 2018, Ms Hammer and the EP (“the Applicants”) filed an application
for leave to apply for judicial review in the High Court, challenging the First and Second
Decisions (“the Decisions”). The Director of Immigration is named as the intended
Respondent. The grounds of review were:

15.1. Ground 1: Failure to give reasons.

15.2. Ground 2: Taking into account an irrelevant consideration, namely Ms

Hammer’s chairing of the Talk. The Applicants contend that the Talk, and Ms
Hammer’s involvement in it, are protected exercises of free speech and assembly,
and of protected press activity, and therefore cannot be a relevant consideration
in denying her a benefit under a broad statutory discretion. Alternatively, the
Applicants say that taking into account Ms Hammer’s participation in the Talk:
(i) involves the use of a statutory power for a collateral or improper purpose
(namely, to punish Ms Hammer for her exercise of protected rights); and/or (ii)
involves discrimination on grounds of imputed (but not actual) political opinion,
and is therefore Wednesbury unreasonable.

16. The Court directed that there be a “rolled-up hearing”, i.e. a hearing at which both the
application for leave, and the substantive judicial review application, were argued in
one go.

17. Pursuant to the Court’s directions, the Director filed evidence in opposition. His
position is (and remains) that:

17.1. In relation to Ground 1, he is under no duty to give reasons for the decision.

17.2. Ground 2, in the Director’s submission, turns on the assumption that he took Ms
Hammer’s participation in the Talk into account in reaching the Decisions. The
Director, while neither admitting nor denying that this is the case, contends that
the Applicants have not produced sufficient primary evidence from which to
draw this inference.

17.3. The Director’s evidence further states that, if the Decisions really were based on
national security considerations arising out Ms Hammer’s association with Ms
Cheng, as the Applicants contend is the case, he should not be required to reveal
this (although no application for public interest immunity has been made in the
case). In any event, Decisions taken on that basis would be lawful.

18. Upon receiving the Director’s evidence, the Applicants complained to the Court about
what they perceived to be a lack of candour in relation to the true basis for the Decisions.
In correspondence, the Director has denied that the duty of candour applicable to
respondents in judicial review proceedings arises before leave has been given.

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19. An agreed list of issues was produced for the rolled-up the hearing:

19.1. Issue 1: Is the duty of candour engaged in judicial review proceedings at any
time before leave is given, including at a rolled-up hearing, or where a
respondent actively opposes the grant of leave?

19.2. Issue 2: Was the Director under a duty to give reasons for the Decisions?

19.3. Issue 3: (a) Is there a sufficient basis in primary fact for the Court to infer that the
Director took Ms Hammer’s involvement in the Talk into account in reaching his
Decisions? (b) Is there any valid national security objection to the Court making
such a finding?

19.4. Issue 4: If the Court is satisfied that the Decisions were based on Ms Hammer’s
participation in the Talk, were they unlawful?

20. In a reserved judgment, the Court of First Instance held that:

20.1. The duty of candour was not engaged at the rolled-up hearing since leave had
not been given. The Court was bound by the decision of the Court of Appeal
Hong Kong Telecommunications (HKT) Limited v Secretary for Commerce and
Economic Development and another [2019] HKCA 44 (unreported, CACV 532/2018,
9 January 2019) at §38.

20.2. The Director had been under no duty to give reasons.

20.3. There was sufficient evidence to infer that the Director had taken Ms Hammer’s
participation in the Talk into account in reaching the Decision, since no other
reasonable explanation for it existed. There was no national security objection,
since Ms Hammer was not alleged to have had any other involvement with Ms
Cheng or HKIP other than the Talk. And in any event, the Police had already
made public their detailed national security case against Ms Cheng and the
HKIP.

20.4. Ms Hammer’s participation in the Talk was a protected exercise of free

expression and assembly, and not matter how unpopular or odious Ms Cheng’s
views might be to many people, this was an irrelevant consideration for the
Director to take into account.

21. The Court accordingly quashed both Decisions.

22. The Director appealed to the Court of Appeal against the findings on Issues 3 and 4. The
Applicants cross-appealed on Issues 1 and 2. The Court of Appeal upheld the decision
of the Court of First Instance on all issues.

23. Leave to appeal to the Court of Final Appeal has now been granted on all four issues.

C. Basic Materials
1. The following materials may provide a useful starting point for your research.

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2. Duty of candour:

2.1. Quark Fishing Ltd. v Secretary of State for Foreign and Commonwealth Affairs [2002]
EWCA Civ 1409 (CA) at [50].

2.2. R v Barnsley ex p Hook [1976] 1 WLR 1052 at 1058.

2.3. Chu Woan Chyi v Director of Immigration, unreported, CACV 199/2007, 4

September 2009, at §14(1).

2.4. Hong Kong Telecommunications (HKT) Limited v Secretary for Commerce and
Economic Development and another [2019] HKCA 44 (unreported, CACV 532/2018,
9 January 2019) at §38.

3. Duty to give reasons:

3.1. R v Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763.

3.2. FB v Director of Immigration [2009] 2 HKLRD 346 at §§218-227.

3.3. B & Ors v Torture Claims Appeals Board [2015] 1 HKLRD 681 at §§35-36.

4. Factual inferences in the absence of reasons:

4.1. Lonrho Plc v Secretary of State for Trade and Industry [1989] 1 WLR 525 at 539H-
540B.

4.2. R (Birmingham City Council) v Birmingham Crown Court [2010] 1 WLR 1287 at [47].

4.3. R (Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR
242, 258B-E.

4.4. R v Civil Service Appeal Board Ex p Cunningham [1991] 4 All ER 310.

4.5. Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997 at 1032–1033,
1049, 1053–1054, 1061–1062.

5. Irrelevant considerations:

5.1. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223,
229.

6. Discrimination as Wednesbury unreasonableness:

6.1. QT v Director of Immigration (2018) 21 HKCFAR 324 at §§23-24.