Fee for passengers using Hong Kong airport would be unlawful, court is told

A proposed fee for passengers flying out of Hong Kong International Airport would be unlawful, the High Court was told on Tuesday.

The levy, ranging from HK$90 to HK$180 per trip, was put forward by the Airport Authority as one way to help meet the cost of the third runway for the airport, which is said to be approaching capacity.

In a legal challenge to the HK$141.5 billion infrastructure project, City University student Hui Sin-hang has sought leave for a judicial review of what she said was the Chief Executive in Council’s decision to endorse the fee last March.

Hui’s application was heard in conjunction with those of League of Social Democrats vice-chairman Raphael Wong Ho-ming and social activist Koo Sze-yiu, who were not legally represented in court on Tuesday.

Hui’s lawyer, Hectar Pun Hei SC, argued that the authority’s proposed fee, being compulsory and enforceable by law, would be tantamount to taxation and should have been approved by the Legislative Council.

The barrister also questioned the way the government managed joint airspace with neighbouring mainland cities, citing Article 130 of the Basic Law, which stipulates Hong Kong should be responsible for its own for matters relating to civil aviation.

But Benjamin Yu SC, for the Chief Executive in Council, argued the Basic Law did not forbid the city liaising with Shenzhen on airspace issues or routes.

Yu noted that arguments over shared use of airspace had been in the public domain for years and queried why the issue had been brought up by the activist now.

He also dismissed procedural concerns over the fee as an invalid reason for opposing the runway.

The authority’s barrister Russell Coleman SC argued it was clearly within the authority’s powers to impose the fee, as seen from the Airport Authority Ordinance.

Coleman told Court of First Instance judge Mr Justice Anderson Chow Ka-ming that the ordinance states the authority has a duty and obligation to maintain the city’s status as a centre of international and regional aviation as well as to “provide, operate, develop and maintain” an airport for civil aviation.

The same ordinance also provides that the authority may raise money specifically for the airport’s development to meet expenditure in accordance with prudent commercial principles, he said.

“It is absolutely clear that the ordinance identifies the authority’s duty to raise [money for] airport construction fees,” Coleman argued, adding there was no proper basis to call it a tax.

“If it is to be thought at all that the airport construction fee is a form of taxation then that taxation has obviously been approved in enacting the ordinance.”