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Hong Kong courts

Former Cathay Pacific pilot looks to take Hong Kong civil aviation chief to court over refusal to give medical clearance

Pilot files judicial review application after he was diagnosed with ‘problematic use of alcohol’ in November 2013 and failed a biomarker test in 2016, which he claims cost him millions in lost salary

PUBLISHED : Wednesday, 25 July, 2018, 7:00am
UPDATED : Wednesday, 25 July, 2018, 9:27am

A former Cathay Pacific Airways pilot is taking Hong Kong’s director general of civil aviation to court to challenge a decision to suspend his medical certificate, which he claims cost him HK$2.6 million (US$330,000) in lost salary.

Leelan Rukesh Marasinghe said in a judicial review application filed to the High Court on Tuesday that he had been subject to bias and unreasonableness when the director general continued to suspend his Hong Kong Class One medical certificate on April 25 this year.

The applicant is now seeking a court order to quash that decision, as well as a declaration that there was no reasonable grounds or basis for the decision.

A valid Hong Kong Class One medical certificate issued by the director general on behalf of the chief executive is necessary for a licensed pilot to operate an aircraft registered in the city.

The writ said Marasinghe was a commercial aircraft pilot who joined Cathay Pacific in 2005. He was diagnosed with “problematic use of alcohol” in November 2013.

He later attended supervised rehabilitation programmes and was required by Cathay Pacific to take regular spot checks for heavy alcohol consumption.

On March 9, 2016, the applicant said, he took a carbohydrate-deficient transferrin biomarker test (CDT) while he was sick following a busy period at work.

The test result was 2.7 per cent, which was considered “elevated” as compared with a standard 2.5 per cent. The figure dropped to 1.9 per cent by March 14 when he took a further confirmatory test.

Psychiatrist Dr Gabriel Hung told Cathay Pacific that he was “not able to offer any explanation for the increase in CDT percentage apart from the resumption of heavy alcohol consumption”.

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The applicant’s medical certificate was suspended on April 7, 2016, and he was further suspended without pay by the airline 20 days later.

He then lodged an appeal in July 2016. A review panel was formed in October, but before it reached a conclusion, his employment with Cathay Pacific was terminated on January 13, 2017.

The following month, the Civil Aviation Department informed the applicant that the suspension would continue, given his “previous history of alcoholism, rehabilitation and the consequences of a relapse”, despite only one of the three panel members supporting this decision, the writ said.

Meanwhile, the pilot applied for a medical certificate from Transport Canada Civil Aviation Medicine, which recommended he be considered fit for an unrestricted medical certificate, allowing him to work as a commercial aircraft pilot in Canada.

A reconstituted panel in Hong Kong was later formed to review the case. But the applicant complained that its composition was “wrong and unacceptable” because it went against stated practice for individuals involved in the original decision to stay out of subsequent reviews.

The department, according to the writ, replied that there was no appeal mechanism in the first place, despite internal guidelines stating there should be one “to accept a legitimate explanation for any positive result”.

Marasinghe said the panel had “resolutely ignored” his test result on March 14, 2016, and pointed out that there was no reference in the department guidance booklet on the use of CDTs, or cut-off levels.

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“The director general was actually prejudiced against the applicant,” the writ said. “The review decision … to continue the suspension … was a decision that no reasonable body could have come to.”

As a direct result of the decision, the applicant said he had suffered an extended period without pay at a time when his annual salary was HK$2.5 million. His estimated loss in salary was about HK$2.6 million.

The applicant found alternative employment in Canada in June 2017.

No hearing date has yet been scheduled.