Hong Kong Journalists Association v Commissioner for Police [2021] 1 HKLRD 427

Philip Dykes SC and Robert Pang SC leading Timothy Parker and Albert NB Wong appeared for the applicant for judicial review in the Court of First Instance in Hong Kong Journalists Association v Commissioner of Police [2021] 1 HKLRD 427.

The Hong Kong Journalists Association (the HKJA), sought judicial review of what it complained of as a failure of the Police to facilitate, and not to hinder, lawful journalistic activities at public order events, and a failure of the Commissioner of Police (the Commissioner) to address a catalogue of operational deficiencies in that connection. It asked the Court to proceed by assuming that the Police had ill-treated and hindered journalists as alleged in 13 statements (the Journalist Statements) and to grant declaratory relief on that assumption. The Commissioner’s position in regard to those allegations was that they were matters being or to be investigated in other proceedings or forums…

Held, dismissing the substantive application for judicial review, that:

(1) In the present case the “assumed facts” approach was unworkable and inappropriate because: (i) the parties had not agreed on any assumed facts or on any issues of law to be determined on assumed facts; (ii) the HKJA had not even produced a statement of assumed facts; (iii) it would be inappropriate simply to adopt the Journalist Statements as assumed facts, since while some of the allegations may not be controversial some others were probably hotly disputed; (iv) the suggested exercise would be of little or no practical utility since stating that police officers would have acted unlawfully if they had acted as the HKJA alleged would be stating the obvious, and the critical question was whether the allegations could be proved; and (v) trying the issues of fact would require writ proceedings (R v Horseferry Road Magistrates’ Court, ex p Bennett (1993) 97 Cr App R 29, R (A) v Secretary of State for the Home Department [2004] EWHC 1585 (Admin), R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin), Breyer Group Plc v Department of Energy and Climate Change [2015] 1 WLR 4559, R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 considered). (See paras.5–6, 48.)

(2) A declaration, even if not stated with absolute precision, must be at least of reasonable certainty. Whether a proposed declaration met the requirement of reasonable certainty was a matter of judgment and degree. The declarations sought fell on the wrong side of the line. It would be misleading to make declarations of legal duties in unqualified terms without identifying the possible limits or qualifications of the relevant duties.

[Editor’s note: It will be observed that the learned Judge indicated (in para.58) that he, hoping to minimise conflict between police officers and journalists at public order events, felt tempted to lay down some guidelines on the legal limits and scope of the Police’s duty to facilitate, and not to hinder, journalistic activities. But for all the reasons which he gave, he did not consider it appropriate to do so.]

[The above is excerpted from the headnote to the report in HKLRD.]