Chu Woan Chyi and Others v. Director of Immigration

HCAL 32/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 32 OF 2003

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BETWEEN

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Before : Hon Hartmann J in Court

Dates of Hearing : 6 - 9 February 2006

Date of Handing Down Judgment : 8 May 2006

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J U D G M E N T

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Introduction

1.In a judgment handed down on 4 November 2005 (‘the discovery judgment’), I ordered that the respondent, the Director of Immigration, make discovery to the applicants of certain documents and records on the basis that such discovery was necessary for disposing fairly of the applicants’ application for judicial review.

2.Consequent upon the discovery judgment, an application was made by the Director for an order that certain of the documents and records which I had ordered to be discovered attracted public interest immunity and that their disclosure would be against the public interest.

3.At or about the same time, as a result of information which had for the first time become known to them, that information arising out of the discovery proceedings, the applicants applied to make substantial amendments to their Form 86A notice of application. 

4.I shall look first to the applicants’ application to amend and, second, to the Director’s public interest immunity application.

The application to amend : the initial background

5.On 21 February 2003, the first four applicants, residents of Taiwan, flew into Hong Kong.  It was their intention to attend a conference here.  The conference was hosted by the firth and sixth applicants, the six applicant being an association of Hong Kong adherents of the teachings and practices of the Falun Gong or Falun Dafa movement.

6.In the discovery judgment, I described Falun Gong as a system of philosophy broadly based on Buddhism that incorporates regimes of physical exercise, meditation and a search for metaphysical truths.  As such, being a philosophy that sets a code of living for the purpose of spiritual transcendence, it has been recognised by many people as a religious movement.

7.Within the context of this judgment, it is important to note that in the Mainland Falun Gong has been condemned as a cult and has been declared illegal.  Law enforcement agencies have taken steps to suppress the movement.  In Hong Kong, however, the movement has always been recognised as a lawful movement.

8.When the first four applicants attempted to enter Hong Kong on 21 February 2003, they were refused permission to do so by the Director.  

9.The applicants’ judicial review proceedings were instituted in April 2003.  At that time, two decisions of the Director were challenged.  The first – and most fundamental – was the decision of the Director to refuse the first four applicants permission to enter Hong Kong.

10.The second was the decision of the Director, so it was alleged, to permit officers of the Immigration Department to use inappropriate and/or excessive force to remove the third and fourth applicants from the airport terminal building in order to place them on an aircraft back to Taiwan.  That second decision has little, if any, relevance to the issues to be determined in this judgment.

11.In the applicants’ Form 86A, the wording used to describe the first decision under challenge was broad in its compass.  It was described as -

“The decision(s) of the Director of Immigration dated 21 and/or 22 February 2003 to refuse the 1^st to 4^th Applicants permission to land in the HKSAR.”

12.It is to be emphasised that when the first four applicants were refused permission to enter Hong Kong no reason was given for that refusal.  Nor, it appears, had any reason been given by the time that the application for judicial review was filed.

13.The decision to refuse entry to the first four applicants was based on intelligence which the Director did not believe it would be in the public interest to reveal.

14.Not being able to know the exact reason why, according to the Director, the first four applicants were refused permission to enter Hong Kong, the applicants initially articulated their challenge on the basis that the reason for refusing them permission to land must have been based on their religious affiliation; that is, their adherence to the Falun Gong movement.  In the result, the decision of the Director to refuse the first four applicants permission to enter Hong Kong must have amounted to religious discrimination, a decision which violated a fundamental constitutional right of all persons residing in Hong Kong, or coming lawfully into the territory; namely, the right to freedom of thought, conscience and religion.

15.The Director gave no reason why the first four applicants had been denied entry but refuted the assertion that his decision had constituted an exercise in religious discrimination.  It was pointed out by the Director that at or about the same time as the first four applicants were refused permission, a great many Falun Gong followers were permitted to enter Hong Kong, their purpose, it would seem, being also to attend the conference. 

16.Although the substantive merits have not yet been canvassed, it will inevitably, I think, be the Director’s contention that, if adherence to the Falun Gong was the sole criteria for refusal, all those other followers (in so far as their following was known or reasonably suspected) would also have been refused.  The applicants will no doubt make the riposte that, including themselves, some 80 Falun Gong followers were refused entry.

17.As to any more positive indication of why the first four applicants were refused permission, it was only when the discovery proceedings took place, more particularly upon my urging, that the Director decided to say something of his reasons.

18.In the course of the discovery proceedings, it was revealed that the first four applicants had been stopped at airport immigration control because their names appeared on a watchlist.  In an affirmation dated 22 September 2005, Mr Tong Hin Ming, who at the material time was the Acting Permanent Secretary for Security, explained that, among other reasons, an individual may be posted on the watchlist if the Security Bureau and other related Government departments, after assessing what is invariably confidential and sensitive intelligence, determined that the individual posed a security risk to Hong Kong.

19.Mr Tong’s evidence was expanded upon by Mr Choy Tak Po, a Senior Principal Immigration Officer holding the post of the Commander of the Airport Division.  Mr Choy explained that, while more junior officers would not have had any access to information explaining why the applicants had been put onto the watchlist, he was aware that “the Security Bureau and related departments had made the assessment that certain persons, including the 1^st to 4^th applicants, were involved with some other individuals engaged in organising disruptive activities which posed threats to public order in Hong Kong.”  In the result, said Mr Choy, a decision had been made that to grant admission to the first four applicants would have been “contrary to the public interest.”

20.The Director’s position, therefore, as it emerged during the discovery proceedings, was essentially, at least as I understand it, to the following effect.  The first four applicants were not refused entry solely because they were followers of the Falun Gong movement.  Many Falun Gong followers were permitted to enter Hong Kong at or about the same time and attended the conference.  The applicants were refused entry because, based on an assessment of intelligence by organs of government responsible for matters of security, it was believed that each of them, together with others, had planned or were planning to organise; that is, to lead or arrange, disruptive activities which would pose a threat to public order and be against Hong Kong’s interests.

21.It was not suggested that the planned disruptive activities were to be independent of Falun Gong.  On the facts presently known it would be reasonable, therefore, to draw the inference that the disruptive activities apparently identified by Hong Kong’s intelligence agencies were activities to be conducted at least in the name of the Falun Gong movement.

22.It was against this background that the applicants applied to make fairly fundamental changes to their Form 86A, that is, to their notice of application.  

Identifying the true dispute

23.It is the decisions made to refuse the first four applicants permission to enter Hong Kong which is challenged by all the applicants as constituting unlawful decisions, the term ‘unlawful’ being understood in its public law sense.  But why have those decisions been challenged as being unlawful?  In my judgment, what clearly has emerged as the essential complaint, and therefore the essential dispute, is that, in truth, the first four applicants were victimised because of their religious beliefs and affiliation or if, and in so far as, the decisions were based on the fact that the first four applicants posed a security risk, that was not only factually wrong but must have been so ill-formed or irrationally reached as to be unlawful.

24.The core of the dispute, therefore, relates to the true reasons why the decisions were made.  Were those decisions in reality founded on religious discrimination or, if based on the conclusion that they posed security risks, was it a conclusion, as I have said, so ill-informed or irrationally reached as to be unlawful?

25.While the applicants have sought to be informed of the procedures adopted by the Director’s officers in coming to their decisions that the first four applicants should be refused permission to enter Hong Kong, their challenge has not been based on an assertion that rules of procedure were ignored and that that was why they were refused permission.  Matters may have arisen in the course of discovery which has given the applicants cause to believe that there may have been material procedural failures but that has never been the essential basis of their challenge.

26.During the course of the discovery proceedings, as I understood Mr Harris, access to such documents as guidelines and manuals was sought because those documents could ‘inform or explain’ the true reason why permission to enter Hong Kong was refused.

27.In considering the real dispute in issue, it is, in my view, apparent that, unless the pleadings are controlled, they run the risk of spilling over into an area in respect of which this court has no jurisdiction; namely, issues going to the merits.  It is fundamental that judicial review is restricted to an examination of the lawfulness of a decision made by a public officer such as the Director and not to an examination of the merits of any such decision.  That being the case, a decision made in good faith and made rationally; that is, capable of being made by a reasonable decision-maker, will not be subject to judicial review even if, on objective examination, it is found to have been a wrong decision.

28.For that reason, disputed questions of fact do not normally arise in judicial review matters.  Judicial review, by its nature, is not a mechanism suited for determining factual issues.  But, of course, issues of fact do occasionally arise and they may be crucial to the final determination of an application.  In my judgment, the present case is manifestly one such instance.  The applicants asserted, and continue to assert, that there could not have been any lawful basis for reaching a decision in good faith to post them on the watchlist as security risks.  This the Director has denied, his contention clearly being that at the material time he was in possession of intelligence, collated and assessed by relevant organs of government upon which he was entitled to rely, and that his officers came to a lawful set of decisions based upon that intelligence.            

The substance of the application to amend

29.Having been informed that the decision to refuse the first four applicants entry to Hong Kong was founded on the fact that their names had been placed on the watchlist, an application was made to challenge the decision to place them on that list, this decision being described in the following terms:

“The decision of the Director of Immigration taken on a date or dates unknown to place and maintain the names of the 1^st to 4^th Applicants on an Immigration Department Watch List on the ground that they posed a threat to the security of the HKSAR.”

30.In my judgment, this application is justified and should be granted.  The decision to place the first four applicants on the watchlist was integral to the decision to refuse them permission to enter Hong Kong and, as such, was integral to the substantive challenge which has always been the basis of these proceedings; namely, the assertion that the refusal to permit the first four applicants to enter Hong Kong was, in its public law sense, an unlawful decision.

31.I am satisfied that if the applicants had known of the watchlist at the time they instituted their judicial review proceedings, and had known of the manner in which their names came to be upon it, they would have challenged the decision to post them on the list

32.For the Director, it was argued that the decision to place the first four applicants on the watchlist was an earlier and distinct decision from the decision made on or about 21 February 2003 to refuse them entry.  As such, the applicants were woefully out of time in seeking to amend their notice of application by adding the earlier decision.  For this reason the application should not be allowed.

33.I do not agree.  Placing the names of the first four applicants on the watchlist, while it may have been an earlier decision, was the decision which gave rise to the later decision to refuse entry.  The two decisions were therefore inextricably linked to each other, the one being part of the other.  In many ways, it may be argued that the decision to place the first four applicants on the watchlist was the effective decision to refuse them entry to Hong Kong.

34.It is elementary that a court will normally permit such amendments as may be required to ensure that what I have earlier described as the real dispute between the parties can be determined.  It is plain, in my view, that the decision to place the first four applicants on the watchlist was an integral part of the decision-making process which is central to the real dispute in issue.

35.As I have indicated, the essential issue that falls for determination in these proceedings is whether the Director’s decision to refuse the first four applicants permission to enter Hong Kong was founded solely on the fact that they were known to be Falun Gong followers or was founded on something more than that; namely, a rational and good faith belief that they were involved, or were intending to be involved, in activities which posed a threat to the good order, peace and security of Hong Kong.  That being the case, it is understandable that the applicants should wish to avoid having their application frustrated by the Director being able to rely simply on the fact that their names appeared on the watchlist and that, absent any pressing personal circumstances, such listing – per se – was sufficient to render the Director’s decision a lawful one.  To that extent, in my view, it is understandable that the applicants should wish to put under the spotlight the Director’s decision in the first place to put them on the watchlist and to maintain their names on that list. 

36.As to the relief sought in respect of the decision, I have no difficulty with the relief sought by way of declaration.  I do, however, have difficulty with the relief sought by way of certiorari.  This relief is expressed in the following terms :

“If (which is not within the knowledge of the Applicants) the names of the 1^st to 4^th Applicants or any of them remain on the Immigration Department Watchlist certiorari to quash the decision or decisions to place on the said Watchlist the names of those Applicants which remain thereon).”

37.In my view, this form of relief fails to take into account the fact that the monitoring of the watchlist is a continuing exercise.  That being the case, if the name of any of the first four applicants is on the watchlist at this time – more than three years after the information on the watchlist was used to refuse them permission to enter Hong Kong – it may be because in the interim new information has come to the knowledge of the Director, information perhaps entirely or substantially different from the information which resulted in the applicants first being put on the list.  An order of certiorari of the breadth sought runs the danger therefore, if granted, of impinging on the Director’s powers in respect of matters which have not been the subject of these proceedings.

38.In any event, it seems to me – the form of relief being a matter of discretion resting with the court – that, if the applicants demonstrate their case, declaratory relief will give them an adequate remedy.

39.The application to amend includes the addition of seven grounds of challenge which go to the lawfulness of both the decision to place the first four applicants on the watchlist and the consequent decision to refuse them permission to enter Hong Kong.

40.On behalf of the Director, Mr Daniel Fung SC, argued that these new grounds of challenge amount to a wholesale attack on the entire decision-making process of the Immigration Department in respect of the operation of the watchlist and the making of decisions resulting from information contained in the list.  This wholesale attack, said Mr Fung, if it was allowed, would so enlarge the scope of the application for judicial review that it would substantially alter its nature and would involve the Director in having to put forward detailed answers to a number of new issues. 

41.In my judgment, however, it goes too far to say that these new grounds amount to a wholesale attack on the entire decision-making process in respect of the operation of the watchlist, distorting the nature of these proceedings.

42.I accept that amendments should not be allowed when they amount to permission to an applicant to forage around looking for any sort of ground that might be turned up.  Judicial review applications all too often are burdened with an excess of barely arguable grounds.  In the present case, however, it seems to me that all but two of the grounds do go to the real issues in dispute and should be allowed.  The two grounds which I do not allow are grounds 13 and 17.

43.In respect of ground 13, the opening two paragraphs read as follows :

“Mr Choy Tak Po states (paragraphs 11, 12, 13 and 14 of his affirmation) that having learned that the 1^st to 4^th Applicants’ names appeared on the Watchlist, there was no reason for him to doubt that they posed security risks and he was aware of nothing in their individual circumstances to outweigh the security concerns in question.  He therefore refused each of them entry.

The personal characteristics and travel arrangements of the 1^st to 4^th Applicants already described should have caused any reasonable decision-maker to have a prima facie doubt about, and to re-evaluate, information on the Watchlist to the effect that they posed a security risk.  These characteristics and travel arrangements were factors which should have been taken into account by the decision-maker.  The decision-maker should have weighed the credibility of the information in the Watchlist against the other factors, making further inquiries if necessary, in order to be able to conclude that there were reasonable grounds for believing the 1^st to 4^th Applicants to be a threat to HKSAR security.  Even if the decision-maker concluded that they were a threat to security it was necessary then to consider whether the nature and seriousness of such a threat was such as to make refusal of entry a necessary and proportionate infringement of the rights of the 5^th and 6^th Applicant under Bl Article 141.  It is clear from the evidence Mr Choy has given that no such exercise was carried out by him.”

44.Ground 13 seeks to substantially broaden the scope of the applicants’ challenge by asserting that the senior officer at the airport who made the final decision to refuse entry to the first four applicants was obliged, before making that decision, to personally ‘re-evaluate’ the information contained in the watchlist in the light of what was known to him at that time and to make an independent decision whether or not the applicants posed a security risk.

45.It was never disputed, of course, that the senior officer at the airport was given a limited discretion.  If exceptional or compelling reasons presented themselves then he could grant permission to enter.

46.But that aside, it seems to me to be a very tenuous argument to say that the senior officer at the airport was not entitled reasonably to rely on the contents of the watchlist.  The responsibility of assessing intelligence and coming to conclusions in regard to that intelligence does not rest with the senior officer at the airport.  It is a duty imposed upon other organs of government who specialise in these matters.  It would, in my view, render the system unworkable if officers along the line were able to second guess the decision of the original decision-makers unless they had before them compelling reason to do so and there was no compelling reason in the present case.  Mr Harris, in any event, has not argued in that way.  He has said that it should have been done as a process of reasonable decision-making.  I disagree.

47.When I say that, in my view, an obligation to ‘re-evaluate’ would render the system unworkable, I say so in part because it would place an impossible burden on the officer tasked with the ‘re-evaluation’.  First, he would not have available to him all information in its undiluted form available to the original decision-makers, second he would have little, if any, contemporary information available to him other than the fact that the individual concerned had been stopped at immigration control and was perhaps protesting his or her unblemished character and intent.

48.As I understand it, administrative law recognises that in the ordinary course of events public officers may be lawfully obliged to act in accordance with instructions given, or assessments made, by other public officers.  In my judgment, ground 13 is not prima facie arguable.

49.Ground 17 is based on the assertion that, when deciding that none of the first four applicants should be permitted to enter Hong Kong, the Director’s officers failed to consider the case of each of the first four applicants individually.

50.Ground 17 was formulated as a result of certain documents disclosed to the applicants by the Director by way of discovery.  It is based on a case report.  Ground 17 is expressed as follows :

“It is evident from that form that no individual consideration was given to the 1^st Applicant’s case.  The brevity of the entries on the forms relating to the 2^nd to 4^th Applicants and the similar reasons given for their refusal in each case strongly indicate that the cases of the 2^nd to 4^th Applicants, like that of the 1^st Applicant, were simply part of a blanket decision to refuse entry all those Falun Gong practitioners from Taiwan coming to the Falun Gong International Sharing Conference who had been placed on the Watchlist, without further inquiry as to whether the individual affected was actually likely to be a threat to the security of Hong Kong.”

51.In my view, it is tenuous to base such a far-reaching contention on the content of one administrative form.  The evidence filed by the Director does not suggest that there was a failure to consider the cases of each of the first four applicants individually; indeed, the contrary appears to be the case.  If, after due consideration, no grounds for differentiation are found, I see no reason why administratively the applicants may not have been referred to as a group.

52.As I have said, discovery is not intended to allow applicants to go ‘foraging’ for further grounds of challenge.  Equally, in my view, the court must consider carefully any amended grounds of challenge that arise out of discovery when those grounds do not go to ensure that the real dispute between the parties can be adjudicated upon.  Unless care is exercised there is a danger that judicial review proceedings will proliferate.  This will add to the costs of the proceedings and extend their duration.  In R. (on the application of W) v. Essex County Council [2004] EWHC 2027 (Admin), Munby J, a very experienced judge in public law matters, described the danger as ‘litigation creep’.  Delay in concluding a matter such as the present one leaves the Director in a position of uncertainty which itself must have a bearing on the day-to-day regulatory activities of officers working under him.  As Lord Diplock pointed out in O’Reilly v. Mackham [1983] 2 A.C. 237, 280-281 :

“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”

53.In my view, ground 17, in addition to being tenuous in substance is essentially, while not entirely unrelated, a subsidiary issue to the real issues in dispute.  Whether the circumstances of the first four applicants were considered individually or not, it has always been the applicants’ assertion that, in respect of each of them, the decision to refuse them permission to enter Hong Kong was in truth an exercise of religious discrimination or, if related to the fact that they posed a security risk, was so ill-formed or irrationally reached as to be unlawful.

54.As for the remaining grounds; that is, grounds 11 and 12 and grounds 14, 15 and 16, as I have said, I am satisfied that they do go to the real issue in dispute in these proceedings and may be directly relevant to adjudicating upon those issues. 

55.As for grounds 11 and 12, they do little more than incorporate the decision to place the first four applicants on the watchlist into the original grounds of challenge pertaining to the decision to refuse them permission to enter Hong Kong. 

56.The addition of grounds 14, 15 and 16 was strongly opposed by the Director.  Mr Fung submitted that they were ‘wholly speculative’ and ‘ultimately irrelevant’.  With respect, I consider this submission, in light of the reticence on the part of the Director to advance further details explaining his decision to refuse the first four applicants permission to enter Hong Kong, to be strained.

57.It is true that grounds 14, 15 and 16 are to a degree speculative, perhaps ‘anticipatory’ may be a better description.  But in the proposed amended grounds, the applicants themselves say that they —

“… are at a disadvantage in responding to the allegations made in the affirmations … as they have no particulars as to the nature of the alleged disruptive activities referred to.”

58.Ground 14 asserts that, if there was intelligence that the first four applicants intended to be involved in organising disruptive activities, those activities could not have been sufficiently serious to constitute a threat to Hong Kong’s security, a fact which the Director must have failed to take into consideration.  In this regard, it is said :

“It should be noted that a threat to public order is not the same thing as a threat to the security of the HKSAR.  A serious threat to public order involving widespread disruption might sometimes be a threat to the security of the HKSAR but there will be many instances of disruption of public order which do not amount to threats to the security of the HKSAR.  Traditionally, national security and public order are identified as separate and distinct reasons for permissible restrictions on rights.

The form of words used … is significant.  The deponents do not state that there was information that the 1^st to 4^th applicants were themselves engaged in organizing disruptive activities which posed threats to public order in Hong Kong.  They simply state that they were ‘involved’ with some other individuals who were engaged in organizing such activities.  The nature of the alleged involvement is not explained any further.

Secondly, there is no statement that the alleged ‘disruptive’ activities were illegal.  There are various kinds of legal activities which may nevertheless cause considerable disruption to public order.  The paradigm example is a peaceful demonstration.  Such demonstrations are constitutionally guaranteed in Hong Kong but will invariably cause some disruption of traffic.”

59.Ground 15 accepts that the fifth and sixth applicants were planning a public demonstration but asserts that, if the intelligence as to planned disruptive activities was related to this demonstration, it was not a lawful reason for refusing entry to the first four applicants.  The demonstration, it was said, was intended to be peaceful and had, in any event, been approved by the Hong Kong Police without any special conditions being attached.  The organising of, or participation in, that demonstration therefore could not rationally have been the basis for the decision to place them on the watchlist.

60.Ground 16 asserts that, if the intelligence concerning the first four applicants emanated from the Mainland, then the Director failed to take into account relevant considerations concerning the source of that intelligence; namely, that it may have been influenced by the fact that the Mainland authorities had conducted a campaign of prosecution against the Falun Gong and had created propaganda to the effect that Falun Gong planned to undermine public order when, in fact, objectively it was known that the movement was an entirely peaceful one.  In these circumstances, ground 16 asserts that —

“… it was necessary for any Hong Kong decision-maker to approach intelligence information from the Mainland authorities alleging that the 1^st to 4^th Applicants were involved with persons engaged in plans to disrupt public order with an attitude of scepticism and not to act on that information to refuse the 1^st to 4^th Applicants entry to Hong Kong without first investigating the matter further in particular by putting those allegations to the 1^st to 4^th Applicants.”

61.As I have indicated, grounds 14, 15 and 16 have been predicated on the basis that, if the intelligence concerning the first four applicants arose from certain described sets of circumstances, then it must have been an unlawful decision.  I agree that it is an unusual basis upon which to formulate a judicial review challenge and may in other circumstances be criticised as being speculative.  But when the applicants are faced with a paucity of information, it seems to me to be a legitimate manner of proceeding.  It may be, of course, that each of the new grounds will prove in the end result to be misdirected.  But at this stage of the proceedings I do not see that such a possibility – of itself – undermines their essential relevance or validity.

62.Mr Fung submitted that, if grounds 14, 15 and 16 were allowed, it would place upon the Director the invidious task of reconstructing the intelligence gathering process carried out by other arms of government which led to the placing of the first four applicants on the watchlist.  This in turn, he said, would inevitably involve the inquiry into and demand for disclosure of sources of security information which would themselves be the subject undoubtedly of further claims of public interest immunity.  This, he argued, would manifestly be to the detriment of good administration. 

63.In my view, however, the Director, and those who represent him legally, must always have understood the real issue in dispute in these proceedings.  If the asserted reason for refusing the first four applicants permission to enter Hong Kong was based on the fact that they posed a security risk, they must have understood that such reason would itself inevitably be subject to challenge.  Of course, the new challenges will result in some further delay but I do not see how it can be said that, in these circumstances, being forced to answer the challenges will be to the detriment of good administration.  How the Director chooses to answer the challenges, of course, is a matter for him.

The claim of public interest immunity : background

64.In the discovery judgment, it was ordered inter alia that documents and records in the following categories should be disclosed :

“(2) Entries and other data in the Watchlist relating to the First to Fourth Applicants, up to and including 22 February 2003;

(3) Records of the dates, up to 22 February 2003, when the names of the First to Fourth Applicants were placed on the Watchlist;

(4) Any part of the Watchlist or associated documents which provides general guidance to the staff of the Respondent in processing applicants for entry to Hong Kong whose names appear on the Watchlist;

(5) Any part of the Watchlist or associated documents which provides guidance to the staff of the Respondent in relation to any particular categories of person which include or may include the First to Fourth Applicants, such as Falun Gong practitioners or entrants from Taiwan;”

65.On 23 January 2006, the Director applied for an order that he should not be required to disclose the documents, or at least certain of the documents, contained in those categories on the basis that they attracted public interest immunity.  The application was supported by a certificate by the Chief Secretary for Administration.

66.In respect of categories (4) and (5), it was said that there were no documents providing guidance in respect specifically of Falun Gong followers or Taiwanese entrants.  There were, however, documents providing guidance generally in respect of persons whose names appeared on the watchlist or who were categorised as security risks, these documents being –

(i) Relevant provisions of the Immigration Service Standing Orders.

(ii) Relevant provisions of the Airport Standing Instruction Manual.

(iii) Relevant provisions of the Express Operation Manual (Procedure Manual).

67.In respect of these standing orders and manuals, public interest immunity was claimed on two bases; first, that they represented a class of documents which were protected by the immunity and, second, that as individual documents, by reason of their particular content, they attracted the same protection.

68.In his certificate the Chief Secretary said the following in respect of the standing orders and manuals :

“The watchlist system forms part of the operation system in safeguarding the security of the HKSAR.  It is, amongst other things, an essential tool to keep away persona non-grata and any person who may pose risks to the security, public order and public safety or the peace and stability of the HKSAR, or whose entry into the HKSAR is not in the public interest.  Disclosure of the documents would reveal the internal working of the watchlist system, which may result in undesirable elements being in a better position to circumvent HKSAR Government’s immigration control or sabotage the system, thereby gravely undermining the effectiveness of the whole immigration control system, and thereby posing the said risks to the security, public order and public safety or the peace and stability of HKSAR.  It is therefore of paramount public interest that the internal working of the system should not be revealed.

Accordingly, in my opinion, disclosure of the documents will be injurious to the public interest.  In order to protect the system of immigration control and the security of the HKSAR, it is in the public interest that the documents be withheld from disclosure …”

69.In respect of documents and records that were ordered to be discovered falling with categories (2) and (3), the Chief Secretary’s claim of public interest immunity was restricted to certain individual documents, which he described as ‘additional documents’, these being -

(i) a file of the Immigration Department of reference no : IMM/CR/15964/01;

(ii) the relevant entry in the Confidential Register under reference No. 15964.

70.The contents of these individual documents were considered by the Chief Secretary to be of such a sensitive nature that even an explanation of why public interest immunity was claimed in respect of those documents would itself be against the public interest.  In this regard, the Chief Secretary (in his certificate) said :

“To fully discuss the public interest need for protection of the ‘additional documents’ mentioned in the preceding paragraph would result in disclosure of the matters that should not be disclosed in the public interest.  Because of this, I will sign a Supplementary Certificate, which will refer to the ‘additional documents’ to explain the reasons for the need to protect those documents from disclosure.  The Supplementary Certificate will be available to the Court but not to the applicants or [their] legal advisors.”

71.The indication that a supplementary certificate would be filed, one which the court could consider but which would be kept from the applicants, raised an immediate response.  In a letter dated 25 January 2006, Mr Harris, counsel for the applicants, accepted that the documents themselves, without being shown to the applicants, may be considered by the court to see if they attracted public interest immunity but said that this exceptional arrangement should not be extended to the certificate itself.  I shall return to his objection later in this judgment.

The claim for public interest immunity in respect of the standing orders and manuals

72.The administration of justice requires that all facts relevant to a dispute should be before the court.  The principle, however, is subject to qualifications.  One of those qualifications recognises that there may be occasions when the public interest in the administration of justice must give way to a greater public interest; namely, the protection of society in order to ensure what once was described as the peace of the realm.  In Conway v. Rimmer [1968] AC 910, at 980, Lord Pearce expressed the principle in the following manner :

“There is not and never has been any doubt that the High Court will not order the production of any document where this would imperil the state or harm the public interest as a whole.  It has normally accepted the Minister’s word on such a point.  For he is cognisant of the contents of the documents and the background which makes its production harmful.  Nevertheless, the final responsibility lies on the High Court itself with its inherent power to decide what evidence it shall demand in the fulfilment of its public duty to administer justice.”  [my emphasis]

73.In a later judgment of the House of Lords, that of D. v. National Society for the Prevention of Cruelty to Children [1978] AC 171, at 233, Lord Simon confirmed the principle in respect of matters of national security :

“… the law recognises other relevant public interests which may not always even be immediately complementary.  For example, national security.  If a society is disrupted or overturned by internal or external enemies, the administration of justice will itself be among the casualties.  Silent enim leges inter arma.  So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process – as to which, as regards national security in its strictest sense, a ministerial certificate will almost always be regarded as conclusive: see Lord Parker of Waddington in The Zamora [1916] 2 A.C. 77, 107.”

74.In his certificate, the Chief Secretary claimed public interest immunity in respect of the standing orders and manuals on the basis that revealing the interval working of the watchlist system would “gravely undermine” the effectiveness of the immigration control system and would thereby pose a risk to the “security, public order and public safety or the peace and stability of the HKSAR”.

75.But that being said, there is a responsibility vested in this court to assess the weight of competing public interests.  In Conway v. Rimmer, at 952, Lord Reid, while acknowledging that there are ‘certain classes of documents which ought not to be disclosed whatever their content may be’, held that, as a principle of common law —

“… courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice.  That does not mean that a court would reject a Minister’s view : full weight must be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail.  But experience has shown that reasons given for withholding whole classes of documents are often not of that character.”

76.In the present case, it is submitted on behalf of the Director that the standing orders and manuals are of a class of documents which ought not to be disclosed however harmless their content may appear to those not competent to weigh their sensitivity.  The fact is, it is said, that they contain details of methods and procedures which govern vital security operations.

77.In support of those submissions, reference was made to Goodwin v. Police Constable of Lancashire Constabulary, The Times, 3 November 1992, a decision of the Court of Appeal in which class privilege was sought and secured in respect of a police manual which contained details of police techniques and tactics employed in the area of riot control and the like.  It was alleged that “if such details fell into the hands of factions hostile to the Police or to the maintenance of law and order the position of the Police would be undermined and these factions would have the opportunity to devise methods of countering the Police techniques and tactics”.  Farquharson LJ said :

“For my part I would uphold the defendant’s claim for immunity for this document.  It is well known that in the past twenty five years there has from time to time been disorder in the streets.  Sometimes this has developed from political demonstrations involving very large numbers of people.  On other occasions there have been racial riots of a kind which were very difficult to control.  Many police forces have had to develop a strategy for dealing with situations of this kind and to introduce appropriate training for its officers.  If the organisers of demonstrations which seek to exploit the weapon of public disorder became aware of the police methods of dealing with such situations the opportunity to frustrate the efforts of the police to impose control is clear and obvious.”

78.In respect of the standing orders and manuals, I believe that the Director’s claim for immunity on the basis that they are a class of documents which govern vital security operations must be upheld.  Due weight must be given to the Chief Secretary’s certificate.  It must also be recognised that the Immigration Department discharges an onerous responsibility in controlling the passage of literally hundreds of thousands of people into and out of Hong Kong every month. A number of those people – for a host of unlawful or improper reasons – would no doubt like to be able to circumvent immigration controls.  It speaks for itself, I think, that it cannot be in the public interest to give aid to these people.

79.For the applicants, Mr Harris said that it was not necessary to have access to all of the contents of the standing orders and manuals.  All that was required was access to the limited material which showed, first, whether or not there were proper procedures in place to ensure that an individual suspected of being a security risk was assessed in a meaningful and lawful way before a decision was made whether or not to refuse entry and, second, whether such procedures were followed in the present case.

80.On behalf of the Director, it was submitted that, once the court had held that the standing orders and manuals – as a class of documents – were entitled to protection from disclosure then the documents could not be inspected regardless of their contents, it was submitted that the court had no residual discretion to engage in ‘surgery’ by cutting away portions of the documents which appeared to have no potential for prejudicing the public interest.  The issue arose in Goodwin v. Chief Constable of Lancashire Constabulary, Farquharson LJ agreeing that there should be no surgery :

“The question has been canvassed before us whether parts of the manual should be disclosed, specifically that part of it, if it exists, relating to training exercises.  For my part, I would say that once a claim for public interest immunity has been successful for the whole document the entire contents are protected from disclosure.”

81.Reference was also made to the judgment of Keith JA in Apple Daily Ltd v. Commissioner of the Independent Commission Against Corruption (No.2) [2001] 1 HKLRD 647 at 663B in which he said :

“I appreciate that there is a difference between a claim to public interest immunity in respect of documents falling within a particular class, i.e. the affidavits or affirmations used to support applications for search warrants, and a claim to public interest immunity in respect of information of a sensitive nature which might be included in such documents.  But in my opinion affidavits or affirmations used to support applications for search warrants constitute one of the classes of documents to which public interest immunity attaches, so long as the investigation in aid of which the warrants were sought continues.  It may be that once that investigation has come to an end, public interest immunity no longer attaches to the documents as a class, and public interest immunity only attaches to such parts of the document as identifies informants, but that is not something which I need to address.  For the time being, while the investigation continues, the affirmation … falls within one of the classes of documents to which public interest immunity attaches and cannot be inspected by Apple Daily or its advisers.”  [my emphasis]

82.It seems to me that I am bound by this dictum of the Court of Appeal and that, once public interest immunity has been pronounced in respect of a class of documents, there is no residual discretion vested in the court to nevertheless consider the balance of competing public interests and to order that part or whole of a document falling into the prescribed class be disclosed.  Mr Harris, however, submitted that the law relating to public interest immunity has developed significantly in recent years and that, in the result, the difference between a class claim and a contents claim has been rendered redundant.  In support of this submission, Mr Harris made reference to the speech of Lord Templeman in R. v. Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274, at 281 :

“For my part I consider that when a document is known to be relevant and material, the holder of the document should voluntarily disclose it unless he is satisfied that disclosure will cause substantial harm.  If the holder is in doubt he may refer the matter to the court.  If the holder decides that a document should not be disclosed then that decision can be upheld or set aside by the judge.  A rubber stamp approach to public interest immunity by the holder of a document is neither necessary nor appropriate.

If public interest immunity is approached by every litigant on the basis that a relevant and material document must be disclosed unless the disclosure will cause substantial harm to the public interest, the distinction between a class claim and a contents claim loses much of its significance.”

83.It has, however, been recognised that the observations of Lord Templeman were obiter and in any event they did not attract the support of other members of the House.  Lord Slynn, for example, at 282, said that, while class claims may sometimes have been pushed too far, they had on occasions been necessary and justified, indeed valuable.

84.Leaving aside what I consider to be the binding dictum of Keith JA, I am unable to accept that changes in the common law have abolished the distinction between a class claim and a contents claim. 

85.In any event, even if I am wrong, in my view, what has been sought by the applicants in the present case in respect of the standing orders and manuals is hardly of little consequence and I simply do not see that the court is competent, if excision was permissible, to say where the scalpel should make its incisions.

86.What I cannot ignore is the recognised fact that even what appears to be innocuous information, if it came into the wrong hands, may damage the public interest.  In Attorney-General v. Guardian Newspaper (No.2) [1990] 1 AC 109, at 259, Lord Keith said :

“There is no room for discrimination between secrets of greater or lesser importance, nor any room for close examination of the precise manner in which revelation of any particular matter may prejudice the national interest.”

87.Having said that, it is apparent that where public interest immunity is claimed in respect of the contents of a particular document, even if the document in question is declared to attract public interest immunity, the matter does not end there.  Lord Farquharson, in Goodwin, put it as follows :

“Where a valid claim for public interest immunity is established, as in the present case I hold it to be, it is still open to the party seeking disclosure to contend that without production of the document he cannot properly present his case.

There has been a dispute between counsel as to where the burden of proof lies when the plaintiffs seek to challenge the withholding of the document in these circumstances.  There cannot, I think, be any doubt that once the validity of the claim for immunity is upheld the burden of any such challenge must be upon the party seeking disclosure.”

88.In Air Canada v. Secretary of State for Trade [1983] 2 AC 394, [1983] 1 All ER 910, Lord Fraser said (at p.435) :

“The most that can usefully be said is that, in order to persuade the court even to inspect documents for which public interest immunity is claimed, the party seeking disclosure ought at least to satisfy the court that the documents are very likely to contain material which would give substantial support to his contention on an issue which arises in the case, and that without them he might be ‘deprived of the means of … proper presentation’ of his case.”

89.Even if I am wrong, therefore, in holding that documents which are given public interest immunity because they belong to a class of documents are immune from disclosure, and if the court does have a discretion still to balance competing public interests, it will be seen that the burden placed on the applicants is considerably more onerous than the burden they had to discharge in demonstrating in the earlier proceedings that they were entitled to discovery.

90.For my part, I am satisfied that, if it was open to me to decide the matter, that the applicants have failed to discharge the burden.  What must be remembered is that the real dispute in these proceedings goes to the nature of the decisions themselves; that is, the decisions to place the first four applicants on the watchlist and thereafter to refuse them permission to enter Hong Kong.  Whether internal guidelines were followed, and the nature of those guidelines, may perhaps cast some light on the true nature of the decisions but I do not see how it could be argued, or indeed has been argued, that such guidelines are ‘very likely’ to contain material which would give ‘substantial support’ to the applicants’ assertion that the decisions were unlawful.  Procedural fairness, in so far as it has been raised, has, in my view, been a subsidiary issue.

91.By way of summary, I am satisfied that, in the present case, the entire contents of the standing orders and manuals, those documents constituting a class of documents, are in law protected from disclosure.  It is my order that they will play no further part in these proceedings.

The claim for public interest immunity in respect of the ‘additional documents’

92.As I have said earlier, public interest immunity has been claimed by the Director in respect of the additional documents by reason of their specific contents.  The additional documents consist of a particular file (reference no. IMM/CR/15964/01) and an entry in a confidential register (reference no. 15964).  In his certificate, the Chief Secretary said that any open discussion of the reason why public interest immunity was claimed in respect of the additional documents would itself result in a disclosure of matters that would undermine the public interest.  Because of this, he said, he intended to sign a supplementary certificate explaining the reasons for the need to protect the documents from disclosure, this certificate being made available to the court but not to the applicants or their legal advisers. 

93.As I have said, this indication raised an immediate response from the applicants.  Mr Harris wrote to the court protesting that this planned procedure was not permissible.  The procedure relating to inspection by the court of documents in respect of which public interest immunity is claimed is a carefully limited exception to the general law relating to fair hearings, he said.  Save for that exception, each party to an inter partes hearing is entitled to be informed of the matters which the other side has put or intends to put before the court.  He argued that there did not appear to be any authority for the proposition that the special arrangements which applied to documents in respect of which public interest immunity was claimed could be extended to cover not only the documents themselves but also the certificate giving the grounds for the claim.  Mr Harris said that the purpose of a public interest immunity certificate is to explain the basis on which public interest immunity is claimed.  Without sight of the certificate in this case, the applicants would, he said, be seriously and unfairly prejudiced in arguing the issue of whether the public interest immunity claim should or should not be upheld.

94.Mr Harris went on to say that the court should not look at the supplementary certificate even on a de bene esse basis.  As he put it : “the certificate may contain dramatic and highly prejudicial allegations which will be bound to weigh in the mind of the reader and of which the other party will be unaware.  This is itself procedurally unfair.”

95.In light of this objection, I have not read the supplementary certificate.  Indeed, to my understanding, the supplementary certificate has not yet been filed.

96.Mr Harris submitted that two courses lay open.  First, he said :

“The answer to the claim by the Chief Secretary for Administration that the matters he refers to are so sensitive that they cannot be fully disclosed to the Applicant is for the wording of the additional certificate to be drafted in a sufficiently guarded manner that the certificate itself can be disclosed without harm to the public interest.”

97.Failing this, he said, the procedure outlined in PV v. Director of Immigration [2004] 3 HKC 637 should be adopted.  In that case, he said :

“… a special advocate was appointed who was able to see the additional certificate as well as the documents for which public interest immunity was claimed, and for that reason there was no need to determine the issue of the lawfulness of provision to the court of a certificate which is withheld from the other party’s legal advisers.”

98.As to the nature and content of the two additional documents (which I note bear the same reference number; namely, 15964), it seems to me to be obvious that they must contain the essential intelligence, or a distillation of that intelligence, which, having been assessed, has formed the basis for putting the first four applicants on the watchlist.  I do not see that any other reasonable inference can be drawn as to the contents of the documents.

99.In the circumstances, I do not see that an order remitting the matter back to the Director so that the Chief Secretary’s supplementary certificate can be more fully worded will advance matters.  If the documents are the essential containers of the intelligence available to the Director, as I am sure they are, I do not see that much more can be said in the supplementary certificate.

100.As to the suggested procedure for the appointment of a special advocate described in PV v. Director of Immigration, a judgment of mine, it is a procedure of an entirely exceptional nature.  To my knowledge, it has only been adopted on the one occasion.  While other jurisdictions may have legislation in place to regulate the procedure there is no legislation in Hong Kong.  In those circumstances, in my view, Hong Kong courts should only consider adopting the procedure in the most exceptional of cases.

101.By contrast, however, the duty discharged by this court of determining whether public interest immunity protects the contents of a document and, if public interest immunity is confirmed, of weighing competing public interests as to disclosure or non-disclosure of those contents, is a time-honoured duty.  Both the power of the courts to conduct the weighing exercise and the suitability of the courts to conduct this exercise was confirmed in Conway v. Rimmer, Lord Morris, at 956, saying the following :

“It is one of the main functions of courts to weigh up competing evidence and considerations.  I see no peril in leaving such a process to the courts.  They are well qualified to perform it.  Their day-to-day task is to pay heed to evidence and to argument and then to consider, to weigh and to decide.  It is said that a statement by the executive to the effect that the public interest requires that a document should be withheld is a statement upon a matter peculiarly within the knowledge and competence of the executive government and must therefore be accepted by a court.  A court would always pay the greatest heed to a statement that production of a document was not in the public interest and in most cases would be likely to give effect to it.  There are many matters upon which the executive will be likely to be best qualified to form a view.  It will be easy for a court to recognise this and to give full weight to this consideration.  The court, however, will be in a position of independence and will as a result often be better placed than a department to assess the weight of competing aspects of the public interest including those with which a particular department is not immediately concerned.

…

It was conceded that objection on behalf of the Crown to production of a document on the ground of injury to the public interest which was shown (a) not to have been taken in good faith or (b) to have been actuated by some irrelevant or improper consideration or (c) to have founded upon a false factual premise, would not be final or conclusive and could be overridden by the court.  If, as is thus conceded, the court possesses such wide powers of overruling an objection to production, it would seem only reasonable and natural that it should also have the duty of assessing the weight of competing public interests.”

102.I do not consider the present case to be so exceptional as to warrant the adoption of the procedure described in PV v. Director of Immigration.  Indeed, with respect to the obvious anxiety felt by the applicants, I do not consider it to be exceptional at all.  This is not a case where the liberty of the subject is at stake; it is not, for example, a case in which an applicant, accused of being a threat to state security, faces deportation or extradition, of thereby being separated from family and friends and perhaps even facing prosecution in the country to which he is returned.  The applicants in the present case had no claim to right of residence in Hong Kong either temporarily or permanently.  Yes, the issues in the present case are important.  They have constitutional importance.  But they are not exceptional in the sense that I have described. 

103.As to the suggestion that, without the assistance of a special advocate, the court’s objectivity may be at risk, I do not see this as a real risk.  In my judgment, the matter deserves no further comment.  Judges of the High Court are professional judges, judges of experience in the law.

104.In any event, if this court determines that the individual documents, by reason of their contents, are protected by public interest immunity, then, as I have said earlier, the court still has a discretion to weigh competing public interests.  It is still open to the applicants to argue that the documents are very likely to contain material which would give substantial support to their contentions and that without sight of the contents of those documents, or part of them, they would be substantially deprived of the means of properly presenting their case.

105.In the circumstances, I am satisfied that I should consider the supplementary certificate of the Chief Secretary and, in the light of that certificate, should consider the documents in respect of which contents public interest immunity is claimed.  I am satisfied that I am able to carry out this function without the need for the exceptional step of appoint a special advocate.  I will therefore order that the supplementary certificate together with copies of the documents in question be submitted to me for consideration.

106.However, I accept, as I have earlier indicated, that the factual basis upon which the decisions of the Director were made are of central importance in this matter.  I further acknowledge that Mr Harris, on behalf of the applicants, has not had an opportunity fully to argue the importance of these documents to the applicants’ case.  In the event, therefore, that I determine that the individual documents, by reason of their contents, are protected by public interest immunity, an opportunity will be given to the applicants to argue that nevertheless, in weighing competing public interests, I should order disclosure in their favour.

Conclusion

107.For the reasons given in this judgment, the following orders are made :

a. The application to amend

(i) Leave is granted to add a further decision under challenge; namely, the decision of the Director (made at a time unknown) to place the names of the first four applicants on the watchlist.

(ii) In respect of that decision, leave is granted to seek declaratory relief.  Leave is not granted to seek relief by way of certiorari.

(iii) Leave is granted to add the new grounds upon which relief is sought with the exception of grounds 13 and 17.

b. Public interest immunity

(i) The documents referred to in the judgment as ‘the standing orders and manuals’ are declared to be protected by public interest immunity as a class of documents.

(ii) No part of the standing orders and manuals is to be discovered to the applicants.

(iii) The documents referred to in the judgment as the ‘additional documents’, together with the supplementary certificate of the Chief Secretary, will be considered by the court in order to determine whether those documents, or either of them, are protected by public interest immunity.

(iv) If the court concludes that the additional documents, or either of them, are protected by public interest immunity, the applicants will be given the opportunity to submit at an inter partes hearing that the documents, or either of them, should nevertheless, in whole or part, be disclosed to them.  Application for such hearing is to be made within 14 days of the court handing down its ruling.

(v) The application for the appointment of a ‘special advocate’ who would have sight of the additional documents is refused.

(vi) To enable the court to make its determination in respect of the additional documents, the supplementary certificate together with the documents themselves are to be delivered to it.

d. Costs

108.Costs are reserved.

e. Liberty to apply

109.By reason of the numerous directions and/or orders sought by the parties, in the event of there being any uncertainty as to the nature or implementation of my orders, there shall be liberty to apply.

Mr Paul Harris and Mr Newman Lam, instructed by Messrs Ho, Tse, Wai & Partners, for the 1^st to 6^th Applicants

Mr Daniel Fung, SC leading Mr Johnny Mok, instructed by Department of Justice, for the Respondent