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「行李門」司法覆核判詞分析:保安局長應該盡快撥亂反正

2018/8/24 — 17:06

梁振英、李家超

梁振英、李家超

相關判詞(羅美美 訴 機管局 及機場保安有限公司)可以在司法機構的網址看到,我特別在此節錄了以下幾段判詞,值得大家留意。

判詞第29及30段披露保安局為什麼在今年4月(司法覆核已經獲批准許可進行但在正式審訊之前2個月)修改香港航空安全計劃就「同行同檢」的相關規定,當中清楚顯示保安局局長是為了針對這次司法覆核而作出有關修改,但卻文過飾非,美其名是為了「節省法庭的金錢和時間」,並且一再強調有關修改只是清楚表達原來規定的意思。判詞第32段列出了相關的修改,大家可以看得出,修改的目的並非為了清楚表達原來規定的意思,而是要取消原來要求所有檢查(包括第一步的X光檢查)都需要旅客及行李「同行同檢」的規定。

判詞第47至49段,法官清楚解釋,機管局基於保安局局長已行使權力修改相關規定而要求法庭拒絕受理司法覆核,明顯有違公義。可圈可點的地方是法官在判詞第48段點出保安局局長雖然肩負規管機場保安公司及機管局的法定責任,卻居然代表後者作出相關宣誓。

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判詞第55段,法官清楚解釋,規定所有檢查(包括第一步的X光檢查)都需要旅客及行李「同行同檢」,最能夠有效保障航空安全、增加檢查的效率、確保檢查運作暢順、減低航機可能的延誤。基於這些理由,我認為保安局局長應該要撥亂反正,盡快取消今年4月基於政府對原來規定的錯誤理解而作出的修訂,恢復要求所有檢查(包括第一步的X光檢查)都需要旅客及行李「同行同檢」的規定。

◦ 判詞節錄:

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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).”

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):-

[6.2.10 All screening of cabin baggage shall be conducted in the presence of the passenger.] (deleted)

6.2.10 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] (deleted) [in the same manner as prescribed in section 6.2.8. ] (added) 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.] (deleted)

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. ...

48. … 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….
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:-

(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) ...

(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.

(本文原刊於作者 facebook,標題為編輯所擬)

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