Chu Woan-chyi and Others v. Director of Immigration

CACV 119/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 119 OF 2007

(ON APPEAL FROM HCAL NO. 32 OF 2003)

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BETWEEN

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Before : Hon Ma CJHC, Stock VP & Barma J in Court

Date of Hearing   :   10, 11, 12, 13 & 16 March 2009

Date of Handing Down Judgment  :  4 September 2009

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J U D G M E N T

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Hon Ma CJHC :

Introduction

1.The main issue in this appeal from the judgment dated 23 March 2007 of Hartmann J (now Hartmann JA) is one that is rarely encountered in the courts : the duty of candour that is incumbent on a decision‑maker in judicial review proceedings (usually the Government or a branch of it) to discharge. Put simply, this is a duty to be full and frank to both the court and the other party or parties in public law litigation. In the present proceedings, the issue involves a determination of whether the Respondent, the Director of Immigration (but in reality the Government), has discharged this duty and if not, the consequences of this breach. There is another issue which will be identified in due course.

2.Given the unusual nature of the challenge, for reasons that will become apparent, it will be necessary to go into some detail as to the procedural history in the present judicial review proceedings, with a particular focus on the way the Respondent and his legal advisors have chosen to conduct the case.

3.We have, in this appeal, been considerably assisted by Mr Paul Shieh, SC who was the amicus curiae. The Applicants, though represented by leading counsel in the court below, acted in person in the appeal. Their submissions were made by the 1st Applicant, Ms Chu Woan Chyi, on behalf of all the Applicants. The Respondent was represented by Mr Daniel Fung, SC and Mr Johnny Mok, SC, who have acted for the Respondent at all material stages of the proceedings, including the hearing before Hartmann J.

4.The judicial review proceedings which have led to this appeal centre on the events of 21 and 22 February 2003. On 21 February 2003, the 1st to 4th Applicants, all residents of Taiwan and all in possession of valid multiple entry permits, sought to enter Hong Kong for the purposes of a Falun Gong event which was to take place the following day. This was a conference that was held at the Sheraton Hotel (the “Hong Kong Falun Gong Experience Sharing Conference”).

5.The 1st to 4th Applicants (together with 76 Falun Gong practitioners from Taiwan) were stopped at the Immigration Counter at the airport and denied entry. All were told that this was for “security reasons”. The 1st and 3rd Applicants had previously been permitted to enter Hong Kong when they were here for purposes unrelated to Falun Gong events.

6.The refusal of entry to the 4 Applicants and others led inevitably to their removal. Some physical force was applied to effect this. One of the original complaints made by the 3rd and 4th Applicants (no longer pursued in this appeal) was that excessive force was used in their removal.

7.On 3 April 2003, the 4 Applicants (together with the 5th Applicant) applied for leave to commence judicial review proceedings to challenge the Respondent’s decision refusing them entry. A challenge was also mounted regarding the use of excessive force in the removal of the 3rd and 4th Applicants. The Relief sought included a declaration that the decision to deny the Applicants’ entry was unlawful, that this decision should accordingly be quashed, and also another declaration to the effect that the use of excessive force was inappropriate or excessive.

8.For reasons unnecessary to go into, the 5th Applicant was eventually allowed by the Court of Appeal to be joined as an applicant in the proceedings (the court allowing an appeal on 29 June 2004 from Chu J who had refused leave to the 5th Applicant to commence judicial review proceedings). On the same day, the 6th Applicant was also given leave to join in the proceedings. The interests of the 5th and the 6th Applicants in the present judicial review proceedings stand or fall with those of the first 4 Applicants. It is not necessary to consider their interests separately.

The candour issue

9.In order to understand fully how the issue of the duty of candour arises in the present case and how this question was dealt with by Hartmann J in the court below, it is necessary of course to go into the evidence that was before the court justifying the decision refusing the 4 Applicants entry into Hong Kong on 21 February 2003. Before doing so and referring to the judgment of Hartmann J on this (and other) issues, I would deal with the law on this topic. There is, as I have indicated, another issue that arises for determination in this appeal. I will in due course identify and deal with this issue, but the crucial issue before us was the candour issue.

10.I ought, in this context, just summarize the parties’ respective positions regarding this issue : ‑

(1) The Applicants’ position was a simple one and one that was articulated time and time again before us by Ms Chu : at no stage has the Respondent frankly or openly vouchsafed, other than in terms couched in vagueness and ambiguity, the precise reason or reasons for denying the Applicants’ entry to Hong Kong on 21 February 2003. Instead of being candid, the Respondent has chosen to obfuscate the issue, giving everyone including the court what can colloquially be described as the ‘runaround’. This extended to the way the Respondent’s legal advisors have conducted themselves in the whole litigation. In particular, the Applicants point to the complete inability or refusal on the Respondent’s part properly to reveal sources of knowledge and disclose relevant documents, even when specifically requested to do so. In summary, it was contended that the Respondent has been so lacking in candour that the court ought to find as a matter of fact that no or no proper reasons existed for the denial of entry. It has always been the Applicants’ firm belief that they (and other Falun Gong followers) were denied entry solely by reason of their beliefs, and that the Mainland authorities must have exerted considerable pressure on the Hong Kong Government in this regard (the Falun Gong movement is an unlawful one in the Mainland). The Applicants were, however, content for the court to find merely that no proper cause existed to deny them entry. This was enough to render the decision unlawful. There was a related challenge to another decision (which came by way of amendment to the Form 86A – I shall deal with this later in my judgment) whereby the Applicants’ names were put on the Immigration Department Watch List (“the Watch List”), which recorded the fact they were said to pose security risks.

(2) The Respondent’s stance was equally simple. The reason for denying entry related to security concerns over the 4 Applicants. Details of these concerns could not be provided by reason of their sensitive nature; indeed the Respondent asserted that it was entirely up to the Government to determine the extent to which such concerns could be divulged. There is a straight denial that the Applicants were refused entry by reason of their being Falun Gong followers. It was also asserted that the Respondent (and hence the Government) has at all times fulfilled the duty of candour. In any event, it was argued that, at worst, insofar as there had been any failings on the Respondent’s part (which failings were denied), these were somehow excused by the Applicants’ own conduct (and this included the conduct of their own legal advisors) or, in any event, the consequence of any breach should not result in the court drawing any adverse inferences against the Respondent.

The duty of candour in judicial review proceedings : the law

11.In the context of the actual reasons for an impugned decision in judicial review proceedings, a discussion of the duty of candour rarely arises : ‑

(1) Where a decision, in the present case of the Government, is challenged in judicial review proceedings, it is in some cases unnecessary to go into any great (or indeed, any) detail as to the reasons underlying the decision. Sometimes, the fact that a decision was made is enough to enable an argument to be run along the lines that it was made contrary to law. For example, a decision that has been made without jurisdiction (say, made by the wrong person or body) will not require any evidence of the reasons for that decision. Or, where it is alleged there is procedural unfairness, it will be unnecessary to go into the reasons for the decision (although the duty of candour will require the decision maker to reveal all material facts relating to the aspect of procedural fairness). Constitutional challenges may not necessarily require going into the reasons for the relevant decision either.

(2) Sometimes though, it is necessary for the court to examine the reasons for a decision in order to test the legality of it (within of course the well‑known limitations that exist in judicial review proceedings).

(3) However, even in those cases where it becomes necessary to go into the reasons for a decision, it is rare to have to refer to the duty of candour. This is because in the vast majority of judicial review proceedings, the reasons for a decision are readily apparent or are readily made available by the decision maker. As a consequence, the court need only examine the disclosed reasons to see whether or not the decision has been lawfully made.

12.The present case provides an exception to the usual position. As earlier stated, it has been submitted with considerable force by the Applicants and the amicus curiae that the Respondent has in the present case breached that duty. It is said that the reasons for the decision to deny the 4 Applicants entry into Hong Kong are neither readily apparent nor have they been fully or properly disclosed by the Respondent.

13.The duty of candour, from a practical point of view, is primarily relevant from an evidential point of view. Essentially, it is a duty placed on the decision maker (the respondent in judicial review proceedings) to be full and frank to both the court and the other side (the applicant) in disclosing all relevant facts and documents. The facts and documents may relate to the actual reasons for a decision (as in the present case) or to any other aspect that is relevant in the judicial review proceedings. A respondent is invariably in a position to be full and frank; afterall, he or she will be in possession of all the relevant facts going to a decision.

14.Thus stated, the duty appears at first blush to be simple enough. Indeed it is, but it is necessary also to highlight various facets and examine how the duty fits into the general scheme of judicial review proceedings, in order fully to comprehend the true nature and extent of the duty : ‑

(1) The duty arises once leave has been obtained by an applicant to commence judicial review proceedings. This is a recognition that an applicant must have proper grounds before commencing such proceedings and cannot simply rely on the existence of the duty of candour to ‘fish’ for a case. As Sir John Donaldson said in his judgment in R v Lancashire County Council, ex parte Huddleston [1986] 2 All E R 941 at 945a‑b : ‑

“But in my judgment the position is quite different if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review of the decision. Then it becomes the duty of the respondent to make full and fair disclosure.”

(2) I emphasize again that the duty is one that is owed to both the court and the other party in judicial review proceedings. That the duty is one that is owed to the court reflects the public nature and public interest elements inherent in judicial review proceedings. It is an aspect of good governance, and proper and transparent administration. I recognize of course that judicial review proceedings will not always necessarily involve the public interest, but in some cases, the public interest element may be substantial. This aspect provides, in my view, the justification for the existence of a separate duty of candour owed to the court, and not just to the other side. Although, admittedly, public law litigation does have similarities to private law litigation, some differences must nevertheless be recognized. Primary among such differences is the proper approach by a respondent in public law litigation : ‑ “It is now clear that proceedings for judicial review should not be conducted in the same manner as hard‑fought commercial litigation” (per Lord Walker of Gestingthorpe in his dissenting judgment in Belize Alliance of Conservation Non‑Governmental Organizations v The Department of the Environment and Another [2004] UKPC 6 (para.86); [2004] Env.L.R. 761, at 782 (an appeal to the Judicial Committee of the Privy Council from Belize)).

(3) One of the points emphasized by Mr Fung (for the Respondent) in his submissions regarding the duty of candour (which he effectively submitted was a narrow one), was the limited nature of discovery in judicial review proceedings. It is important to view this submission in context. In public law litigation (judicial review proceedings), in general, discovery is indeed much more limited than in normal private law litigation. Further, the necessity to call witnesses and have them examined or cross‑examined is also much more limited. Rarely will the court entertain applications for discovery or order the cross‑examination of deponents of affidavits. The reasons for this approach are easy to identify : ‑

(a) Although the issues in judicial review proceedings may be numerous, the factual issues in any given case are often limited.

(b) The facts are often irrelevant because the focus of any judicial review proceedings is usually on the legality of the decision that is impugned or, where no decision as such is involved, the court is again concerned with only questions of law ( for example, where the only issue is the construction of a statute).

(c) Even where it is relevant to consider facts, the issue that will arise for consideration by the court will not usually be many. This is one of the reasons why discovery in judicial review proceedings will be limited.

(d) Perhaps the most compelling reason why discovery is so restricted in judicial review proceedings and why the court is unwilling in most cases to order discovery, is that the respondent in such proceedings is expected to, and usually does, discharge its duty of candour. As was stated by Lord Woolf MR in R v Secretary of State for the Home Department ex parte Fayed [1998] 1 WLR 763, at 775C‑D, there is usually no discovery in judicial review proceedings simply because it ought to be unnecessary, given the obligation on a respondent public body to be full and frank, particularly in relation to its decision making process. Parker LJ in R v Lancashire County Council ex parte Huddleston at 947f, said in a well‑known passage, that full and fair disclosure entailed “putting the cards face upwards on the table”. Statements such as these reinforce the facet of the duty of candour I have already touched upon, namely, that in public law litigation a respondent (often, as I have said, the Government) must adopt a generous view of its role in such proceedings and not be too ready to indulge in tactical games, or to take unduly technical or legalistic points.

(4) The House of Lords and the Judicial Committee of the Privy Council have, in a number of recent decisions, reaffirmed this approach. In Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, Lord Carswell referred to the obligation to make “candid” disclosure of the decision making process, laying before the court the real facts and the reasoning behind the decision under challenge : at 663H (paragraph 31). Reliance was here placed on the dissenting judgment of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-Governmental Organizations v The Department of the Environment and Another, where the duty was stated to be “to cooperate and to make candid disclosure by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in judicial review proceedings” (paragraph 86).

(5) As far as disclosure of documents is concerned, it is worthwhile being reminded that where the source of knowledge in an affidavit (by far the usual form of evidence in judicial review proceedings) is a document, that document ought itself to be exhibited unless sufficient reason exists to indicate the contrary : see Tweed at 665B (paragraph 33). As Lord Bingham of Cornhill observed earlier in the judgment, this is good practice not only because a document will contain the best evidence but any “summary, however conscientiously and skillfully made, may distort” : at 655G (paragraph 4). Here, I should, as a comparison, also refer to RHC O.41, r.5(1) and (2), namely, the obligation to state sources and grounds in affidavits.

(6) The obligation to be full and frank in the discharge of the duty of candour is of course not an open‑ended or imprecise concept. What in any given case may constitute the fulfilment of that duty is entirely dependent on the issue or issues that are before the court. The court will be astute in judicial review proceedings not to permit so called ‘fishing’ expeditions by applicants in the hope of unearthing material to enable a challenge to be mounted : see Tweed at 664A‑B (paragraph 31). In my view, the court will, in most judicial review proceedings, not make a general order for discovery based on Peruvian Guano principles because in most cases, there will simply be no necessity for such an order. This will explain why there is no automatic discovery in judicial review proceedings; if discovery is required, a separate application must be made : RHC O.53, r.8.

(7) However, once the critical issue is identified in judicial review proceedings and where the resolution of this issue requires that the court be provided with adequate material (by way of discovery or otherwise), I believe the court will in principle be more, not less, inclined to make the necessary orders. I know of no rule whereby in judicial review (or, indeed, any other) proceedings, the court will be reluctant to make wide‑ranging orders to enable it fully and fairly to deal with the issue or issues before it. For example, in Tweed, the particular question before the House of Lords was essentially the court’s approach in ordering discovery in cases involving the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (in particular cases involving Articles 9, 10 and 11 : the European Convention equivalent of Articles15 to 18 of the Hong Kong Bill of Rights guaranteeing the freedom of thought, conscience and religion, of opinion and expression, and of peaceful assembly and association) : see 656F‑G (paragraph 9). The House of Lords considered that in such cases and especially where questions of proportionality were involved, the court should be more inclined to order discovery.

(8) I have so far discussed the duty of candour in the context of discovery (which, of course, includes not only the discovery of documents, but also interrogatories). Much the same principles and approach will apply when the court considers whether or not to order the cross‑examination of deponents of affirmations : in an appropriate case, the court will be more inclined to make such orders, although they are not by any means automatic.

15.The present case involves an examination of the Respondent’s primary contention that the 4 Applicants were excluded by reason of security concerns. In the course of his arguments on the duty of candour, Mr Fung heavily relied on the decision of the European Court of Human Rights in Nnyanzi v United Kingdom, Application No.21878 of 2006, as providing (in the present case) “the complete answer” (Mr Fung’s words) to the Applicants’ submissions on the duty of candour. Nnyanzi is authority for the proposition that each sovereign state has the right to control immigration, and the entry or removal of aliens. It was said that the denial of entry to the Applicants was therefore entirely an exercise of power consistent with this principle. It was then further submitted as a corollary of this general statement that an alien was accordingly not entitled to be provided with the reasons for his being excluded from entry, much less would a hearing be required. Hartmann J in his judgment recognized this, referring to Article 154(3) of the Basic Law and to a number of cases (among them, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 and Robert Flickinger v Director of Immigration [1988] 1 HKLR 81).

16.I accept these principles as far as they go, but in my view, they do not impact in the present case as far as the duty of candour is concerned. The right to control immigration and the various facets of this just referred to, does not mean that whenever there is a refusal to allow entry, no proper or legitimate reason need exist. In my judgment, there must always be a proper or legitimate reason whenever a decision is made to exclude entry. Put another way, a decision made on improper or illegitimate grounds will not be acceptable, and where as in this case, reasons are in fact given, they may be examined not least where it is suggested that they are so palpably false that the true reason must have been an impermissible one. The present case, involves not so much the right of the Respondent to control immigration but, instead, an examination of the supposed basis underlying the decision to deny entry to the Applicants, namely security reasons, in the context of the duty of candour. Accordingly, the following principles, I believe, are applicable : ‑

(1) It has of course to be instantly recognized that in immigration matters, and particularly when security concerns are involved, full recognition must be accorded to the views of the authorities; responsibility for these matters rests with them and not the court : see R v Secretary of State for Home Affairs ex parte Hosenball [1977] 1 WLR 766; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; R v Secretary of State for the Home Department ex parte Cheblak [1991] 1 WLR 890.

(2) It follows from this that where security concerns are involved, a respondent (the Government) can legitimately restrict the amount of material which ought, in the public interest, be disclosed. Where the public interest lies in not revealing material, it cannot be said the respondent will have breached the duty of candour, providing the following conditions exist : ‑

(a) First, the respondent must have acted in good faith. Where there is any bad faith or abuse or any perversity in the relevant decision, the Government cannot hide behind the cloak of security concerns. This principle is entirely consistent with numerous authorities and was emphasized by Hartmann J in the court below.

(b) Secondly, where it is asserted by a respondent that security concerns require that relevant material should not be revealed, the burden is on the respondent to be full and frank as to the reasons justifying such a claim, provide explanations to obvious queries and where necessary, to make a claim for public interest immunity. Only then will the duty of candour be satisfied.

17.There are two further critical aspects of the duty of candour that merit discussion : the relevance of the conduct of the other party to the proceedings, and the consequences of a breach of the duty of candour.

18.It was submitted by Mr Fung that the duty of candour could be qualified by the conduct of the other party to the proceedings to the extent that such conduct could actually excuse a breach of the duty. I find this submission difficult to accept. As a matter of principle, where a decision‑maker has failed to be candid, it is difficult to conceive of a situation where the conduct of the other party will lead a court to conclude there is no breach of the duty at all. Even where an applicant in judicial review proceedings appears to accept or does not challenge what is put forward by way of evidence by a respondent, where there is evidence that a decision‑maker (the respondent) has not been full and frank, he or she will have breached the duty of candour.

19.Where a breach of this duty occurs, the conduct of an applicant may, however, be of critical importance to the determination by a court of the consequences of the breach. Common examples of the type of conduct a court will take into account occur when procedural steps could have been, but were not, taken by an applicant to challenge a default on the part of the respondent. Where the evidence proffered by a respondent is deficient (a breach of the duty of candour), it is open to the applicant to make an application to court. Applications for discovery or for an order that deponents be cross‑examined are common examples of the type of action an applicant may be expected to take. The failure to take all or any steps may, as I have earlier said, affect the conclusion reached by the court on the consequences of the breach of the duty of candour.

20.As I have earlier stated, by far the most significant impact of the duty of candour, from a practical point of view, is an evidential one. Normally, the failure to be full and frank on the evidence may well entitle a court to draw adverse inferences, but this will not invariably be the case. Whether or not an adverse inference is drawn depends on a number of facets. The conduct of the other side is one such factor.

21.Where, for whatever reason, a respondent’s evidence is deficient, it may not always be appropriate for an adverse inference to be drawn when the other side has simply allowed the unsatisfactory state of the evidence to persist, rather than to make any necessary application to the court (for discovery, interrogatories or cross‑examination). Of course, a party can just sit by, be content to do nothing and then submit that the respondent’s evidence is so deficient that an adverse inference should be drawn, but I daresay in many cases, when the proceedings are essentially accusatorial in nature and particularly when steps could have been taken, this may not be an attractive position to adopt. Much will, of course, depend on the circumstances.  

22.I now go into the evidence that was before Hartmann J dealing with the principal factual question before the court : why were the 4 Applicants refused entry into Hong Kong on 21 February 2003?

The evidence in the court below

23.As I have earlier indicated, the Applicants’ basic contention was that the 4 Applicants were denied entry by reason of their Falun Gong affiliation. Each deposed to their good character. The Applicants relied on the fact that the 1st and 3rd Applicants had previously permitted to enter Hong Kong for non‑Falun Gong activities in order to highlight, by way of contrast, the denial of entry on 21 February 2003 (which entry was for the purpose of participating in Falun Gong activities).

24.On arrival, the 4 Applicants (and others) were stopped at the Immigration Counter at the airport and interviewed. They were refused entry on the basis of “security reasons” and this was all they were told. Even after the Applicants demanded to know the evidence for this, this remained the position. They were then detained pending removal from Hong Kong.

25.I have mentioned earlier that the 4 Applicants each held valid multiple entry permits. An issue arose before Hartmann J (and this issue is a live one before us) to the effect that by possessing such multiple entry permits, the Applicants had a legitimate expectation that they would be accorded sufficient procedural fairness allowing them at least to be apprised of any objections to their being permitted entry into Hong Kong and if necessary, to have had an opportunity to make representations. The Applicants said that they had been denied this.

26.The reverse of the multiple entry permits contained conditions. Conditions 2 and 5 state as follows : ‑

“2. The holder of this permit is subject to immigration control under the provisions of the Immigration Ordinance, Cap.115, Laws of Hong Kong.

………

5. The permit is the property of the Government of the Hong Kong Special Administrative Region. The Immigration Department, the Government of the Hong Kong Special Administrative Region may retrieve and cancel this permit at any time.”

27.The Applicants’ first point of contact with the Hong Kong authorities were the Senior Immigration Assistants at the Immigration Control Point in the airport. In the case of the 4 Applicants, before it was finally decided that they were to be denied entry, the matter was also handled by Immigration Officers (who interviewed them), Senior Immigration Officers and ultimately the Commander of the Airport Division of the Immigration Department.

28.Affirmations were provided by (at the relevant time) two Senior Immigration Officers (Lau Wing Yiu and Fung Pak Ho, William), the Commander of the Airport Division (Choy Tak Po) and the Acting Secretary for Security (Tong Hin Ming, Timothy). The Security Bureau was responsible overall for all security matters relating to Hong Kong; in particular, the obtaining of information and intelligence, and making assessments of all security matters.

29.The following facts emerge from the affirmations of Mr Lau (dated 8 February 2005), Mr Fung(dated 8 February 2005) and Mr Choy (dated 28 September 2004). I will separately deal with the affirmations of Mr Timothy Tong (dated 8 February 2005 and 22 September 2005) and the second affirmation of Mr Choy (dated 23 September 2005) : ‑

(1) I have already made reference to the Watch List. The reasons for persons to be placed on the Watch List varied : known criminals would be on the List, persons subject to deportation orders or persons who were prohibited from leaving Hong Kong would also be on it (for example, wards of court). Persons said to pose security risks would also be named. The naming of a person on the Watch List did not mean that that person would automatically be denied entry into Hong Kong or prevented from departing. It was said to be essentially a starting point to enable further enquiries to be made and where necessary, interviews to be conducted.

(2) Where a person was named in the Watch List, only the general reason would be stated. As far as security risks were concerned, there would be no elaboration on the Watch List as to why the named person might pose a security risk. As might be expected, the details of any security concerns would be restricted to persons on a ‘need to know’ basis.

(3) All 4 Applicants were named in the Watch List on the basis that they posed “security risks to the HKSAR” (this was the term used by Mr Choy Tak Po – others used terms such as “security grounds”, “security risk concerns” but they mean the same thing).

(4) Following interviews with the Applicants, it was eventually determined by the Senior Immigration Officers that nothing that was said by them (or in the case of the 1st and 2nd Applicants, not said by them) overcame the security risks that they posed. In the case of the 1st and 2nd Applicants, it was said that they were uncooperative and refused to provide any details of their itinerary, or the nature of the meetings they said they intended to have in Hong Kong. As for the 3rd and 4th Applicants, they said they were in Hong Kong to meet the 5th Applicant.

(5) Accordingly, all 4 Applicants were denied entry into Hong Kong.

(6) It is worthwhile mentioning that Mr Choy emphasized the point that there was “no immigration policy of refusal of entry of persons merely by virtue of the fact that they are Falun Gong members or practitioners”. He continued, “The refusal of entry of the 1st to 4th Applicants was, as aforesaid, on security grounds”.

30.The affirmations of these persons just referred to are remarkable in that : ‑

(1) Although all referred to security risks, no one provided any details whatsoever as to what these risks were, or even as to whether these risks were regarded as low or high or otherwise.

(2) No documents were exhibited to support the assertion that the Applicants posed security risks.

(3) No explanation was forthcoming as to why no details or documents were disclosed. For example, if no details or documents could be provided by reason of public interest immunity, one would have expected this to have been expressly stated.

(4) In summary then, all that was being said by these deponents in answer to the crucial question of why these Applicants were denied entry into Hong Kong, was no more than they posed security risks.

31.I now deal with the two affirmations of Mr Timothy Tong (then the Acting Secretary for Security).

32.The involvement of Mr Tong in these proceedings is important in that this seemed to indicate in clear terms an acceptance on the Respondent’s part that the decision to exclude the Applicants was one that was not restricted to the Immigration Department alone. This is relevant when I come to consider the point made by Mr Fung in his submissions that, at least initially, the Respondent’s legal advisors took the view that the judicial review proceedings only really concerned the Immigration Department and no other Government departments.  

33.In Mr Tong’s first affirmation (dated 8 February 2005), he deposes to the following facts : ‑

(1) As stated earlier, the Security Bureau had overall responsibility in security matters and to make assessments in relation to such matters. The information available to the Security Bureau came from a number of sources, both within the Bureau itself and from other Government departments.

(2) Insofar as security risks were concerned, it was the Bureau and other Government departments which would make the necessary assessment. It was as a result of this process that the Applicants came to be placed on the Watch List.

(3) Again, no details or relevant documents were provided by Mr Tong, and no explanation was given either as to why they were not provided.

34.It is only when Mr Tongprovided the second affirmation (dated 22 September 2005, nearly 2½ years after the judicial review proceedings had been commenced) that there was even an attempt to touch upon what had up to them been unsatisfactory attempts by the Respondent to deal with the real issues in the case. As to Mr Tong’s second affirmation : ‑

(1) This affirmation was provided only as a result of queries raised by Hartmann J (in the course of a discovery hearing) over the lack of details provided by the Respondent. I shall refer to this hearing when I come to deal with the procedural history.

(2) After describing the operation of the Watch List and how it was compiled, Mr Tong then focused on the reasons for the Applicants being denied entry in February 2003.

(3) Here, it is worthwhile setting out in full what was said by Mr Tong : ‑

“As stated in paragraph 3 of my first affirmation, the Security Bureau and related Government departments had, in the case of the 1st to 4th Applicants come to the view, based on information and intelligence obtained, that the entry into the HKSAR of a number of individuals including the 1st – 4th Applicants would pose security risks to the HKSAR. The intelligence obtained included intelligence to the effect that, certain persons including the 1st –4th Applicants were involved with some other individuals engaged in organizing disruptive activities which pose threats to the public order in Hong Kong. In the view of the Security Bureau and related departments of the HKSARG, the admission into Hong Kong of said persons including the 1st – 4th Applicants would, by reason of their involvement with the above‑mentioned persons, be contrary to the public interest. Further confidential and sensitive details such as the identities of the individuals involved and the details of the disruptive activities concerned cannot be disclosed as fall within the ambit of public interest immunity and are therefore privileged from disclosure.”

35.This quoted extract from Mr Tong’s second affirmation represents the high watermark of the Respondent’s case on the facts. It attempts to provide (for the first time in the proceedings) some details of what was meant by the security risks posed by the Applicants. The Acting Secretary for Security also makes the point that the disclosure of further details would fall within the ambit of public interest immunity. A number of observations can be made in relation to this affirmation : ‑

(1) Again, no documents were exhibited to support the factual assertions deposed to in the affirmation.

(2) It is not clear at all just what was the basis for the matters deposed to. Not only were documents not exhibited, Mr Tong did not even reveal his sources of knowledge.

(3) Although some details were given as to the meaning of security risks, it really could not be said that the nature or degree of such risks was properly spelt out. No indication was given as to whether such risks were low, high or otherwise. One would have thought that a simple statement of the nature of the risks could be given without this being so sensitive as to attract a claim for public interest immunity.

(4) The claim for public interest immunity that was made related only to “confidential and sensitive details such as the identities of the individuals involved and the details of the disruptive activities concerned”. What is particularly remarkable here is not so much that a claim for public interest immunity was made but that this claim in relation to the most important factual aspect of the proceedings (that is, the crucial question of why the Applicants were denied entry) was only made in Mr Tong’s second affirmation, which, as I have earlier observed, came some 2½ years after the present judicial review proceedings had commenced. There was no hint of this in the earlier affirmations served on behalf of the Respondent. As stated earlier, in these affirmations, the Respondent was content merely to refer to “security risks” without more.

36.I shall in due course refer again to Mr Tong’s second affirmation (as well as Mr Choy’s affirmation dated 23 September 2005, an affirmation that was also made for the purpose of a discovery application and which also referred to the Applicants posing security threats) to put these affirmations in proper context in the procedural history dealt with below. For the time being, I would just emphasize the point that the affirmation evidence provided by the Respondent, for the reasons articulated above, fell far short of what the court could have expected from the Respondent. In my judgment, the duty of candour was breached by the Respondent in this respect.

37.I arrive at this view notwithstanding the failure by the Applicants (who were at that time represented by a leading counsel) to make any application to cross‑examine important deponents such as Mr Choy and Mr Tong (for it was they who arrived at the decision that the security risks posed by the Applicants were such that they should be denied entry into Hong Kong). An application to cross‑examine was made but only in relation to a minor aspect, namely, the conduct of the interview of one of the Applicants. One would have thought that there were so many areas left vague or obscure by the deponents that might have been pursued in cross‑examination. Nor was the claim for public interest immunity contained in Mr Tong’s second affirmation (see paragraph 34(3) above) challenged. This was, to say at the least, quite surprising. Instead, as we shall see, there was a public interest immunity challenge in relation to what turned out to be fairly irrelevant matters.

38.Mr Shieh submitted that, in the present case, the duty of candour incumbent on the Respondent was not excused or lessened in its impact by any failure on the part of the Applicants or their legal advisors. I have already touched upon this point in the analysis of the law (see paragraphs 18 to 21 above). I accept that the paucity of any meaningful material from the Respondent’s affirmation evidence did not come about as a result of what the Applicants did or failed to do. However, this state of affairs was permitted to persist by reason of the inaction of the part of the Applicants. While, as we shall see, this does have important ramifications in the conclusion I eventually reach on the consequences, it did not in my view lessen or excuse, much less eliminate, the duty of candour that was incumbent on the Respondent.

39.Of course, it was not the case that the Applicants simply did nothing at all. There was considerable correspondence over a very important aspect of the case, namely, discovery, and applications were made in relation to this. It was in this area that the Respondent, clearly in my view, again breached the duty of candour. It is therefore necessary to go into the procedural history of the present proceedings to see how the aspect of discovery emerged and was dealt with.

The procedural history relevant to discovery

40.I have already mentioned the complete lack of relevant documents being exhibited to the affirmations filed on the Respondent’s behalf. Hartmann J in his judgment said that the “issue of a lack of contemporaneous documents, even if protected by public interest immunity, was of concern to me”.

41.The question that stood out starkly was this : what material supported the primary contention run by the Respondent that the Applicants posed security risks? Presumably, there must have been material in existence to support the position maintained by each of the deponents of the affirmations made on behalf of the Respondent. And, if security risks to Hong Kong were involved (it will be recalled that Mr Tong referred to activities which posed “threats to the public order of Hong Kong”), one would presume that such documents would still be in existence. Nothing in the affirmations evidence of the Respondent referred to above indicated otherwise.

42.The affirmations of Choy Tak Po, Lau Wing Yiu, Fung Pak Ho, William and the first affirmation of Mr Timothy Tong were all filed in late 2004 and early 2005. The date for the substantive hearing of the judicial review was fixed initially for 20 September 2005.

43.On 29 August 2005, the Applicants’ solicitors, Messrs Ho, Tse, Wai & Partners (“HTW”) wrote to the Department of Justice (for the Respondent) asking in straightforward terms for all documents material to the decision to refuse entry to the Applicants. A specific request was made for documents contained in or associated with the Watch List. This was admittedly a late request but a perfectly proper, legitimate and, above all, relevant one.

44.The response to the letter was in my view quite unacceptable. In its letter dated 8 September 2005, the Department of Justice simply said that it was trite that in judicial review proceedings there was no right to discovery and that no case had been made out for specific discovery. This was an unacceptable response for the following reasons : ‑

(1) The request for discovery was a proper one that merited a positive response.

(2) As a matter of law, the Respondent’s approach was simply wrong; the documents that were requested, should obviously have been disclosed. They were clearly relevant.

(3) The inadequacy of this response was exacerbated by the submissions of Mr Fung to this court. He informed the court that a narrow view on discovery was justified on the basis that the Applicants’ original challenge in the judicial review proceedings was (according to him) a narrow one. Mr Fung submitted that since the challenge involved only a decision of the Director of Immigration, the focus of the proceedings was therefore restricted to the Respondent and did not involve any other Government department. The material which went into the reasons why the Applicants were considered security risks would have involved documents from other Government departments. It was said that the decision under scrutiny was the Respondent’s decision refusing entry rather than the reasons for the Applicants to be placed on the Watch List. Mr Fung submitted that the issue of the Applicants being put on the Watch List in the first place did not become an issue until leave to amend was given by Hartmann J much later in the proceedings.

(4) This unacceptably narrow view taken by the Respondent (which was apparently on leading counsel’s advice) cannot be justified at all. The point is really this : the documents that were requested in the letter went to the heart of the court’s enquiry in the proceedings. There could not be any basis to believe that when the Director of Immigration was the named Respondent in proceedings such as the present, that all inquiries therefore ceased with the Immigration Department, and that other Government departments were not involved. This was all the more so in the context of security risks. I would reiterate the fact that Mr Timothy Tong made an affirmation for the purposes of the proceedings. He was of course at the time in the Security Bureau. For my part, I simply cannot accept this explanation made by Mr Fung to justify the stance taken by the Respondent.

45.What is, however, particularly pertinent in the context of this case and the history to which I shall come, is the fact that nowhere in this response from the Department of Justice was there any intimation of the non‑existence of relevant documents. As will presently be seen, this eventually became the position adopted by the Respondent.

46.Not surprisingly, the somewhat unhelpful attitude of the Respondent (or rather, those advising him) led to the Applicants taking out a summons on 12 September 2005 applying for specific discovery of nine classes of documents. All nine classes were related to the critical question. I would draw attention to two of these classes of documents (paragraphs 1 and 8 of the Schedule to the summons) : ‑

“1. Documents which contain information relating to the First to Fourth Applicants being placed on a document maintained by the Respondent described as ‘Immigration Watchlist’ (‘the Watch List’) which was referred to in paragraphs 2‑4 of the affirmation of Timothy Tong Hin Ming; paragraphs 6 and 11 of the affirmation of Lau Wing Yiu; and paragraphs 3‑5 and 12‑14 of the affirmation of Choy tak‑Po, all affirmed on 8th February 2005;

………

8. Documents recording reasons why the names of the First to Fourth Applicants were placed on the Watch List.”

47.As to these classes, I am of the view that clearly they were relevant to the question of why the Applicants were denied entry. Accordingly, subject to any claim for public interest immunity, I would have expected the Respondent readily agreeing to provide discovery of them. However, for reasons which are not at all readily apparent, the Applicants were eventually content to restrict the scope of discovery in relation to these two classes as follows : ‑

“1. Documents which were available to the decision makers Lau Wing Yiu and Choy Tak Po which contain information relating to the First to Fourth Applicants being placed on a document maintained by the Respondent described as ‘Immigration Watchlist’ (‘the Watch List’) which was referred to in paragraphs 2‑4 of the affirmation of Timothy Tong Hin Ming; paragraphs 6 and 11 of the affirmation of Lau Wing Yiu; and paragraphs 3‑5 and 12‑14 of the affirmation of Choy tak‑Po, all affirmed on 8th February 2005;”

………

8. Documents which were available to the decision makers Lau Wing Yiu and Choy Tak Po recording reasons why the names of the First to Fourth Applicants were placed on the Watch List.” (emphasis added)

48.Restricted in this way, the Respondent consented to providing an affirmation stating whether documents in these classes existed. In the affirmation of Choy Tak Po dated 23 September 2005 (his second in these proceedings), he specifically accepted that discovery had to be made in relation to the documents referred to in these amended paragraphs in the summons. In this affirmation, Mr Choy also repeated the assertion made in Mr Timothy Tong’s second affirmation that the Applicants were involved in disruptive activities and therefore posed security threats.

49.The amendments to these two classes of documents were significant. Instead of the Respondent being required to provide discovery essentially of why the Applicants were put on the Watch List (and therefore why they posed security risks), discovery was now only required of such documents insofar as they were actually available to Choy Tak Po and Lau Wing Yiu, the two decision makers. It may be that the Applicants regarded the existence of documents, though important as to the reasons why the Applicants were placed on the Watch List, as not being relevant if the actual decision makers did not have sight of them. However, in my view, they clearly were, irrespective of whether the decision makers saw them : afterall, they would explain exactly why the Applicants were considered security risks.

50.In this context, I ought to refer back to the second affirmation of Mr Timothy Tong (see paragraph 34 above), filed for the purpose of the discovery application, in which he did indicate that certain matters could not be disclosed by reason of public interest immunity. It is noteworthy, however, that this reason was not used by the Respondent to resist the discovery sought in relation to the said two classes of documents; quite the contrary, the Respondent consented to provide an affirmation to comply with the discovery sought in relation thereto.

51.The hearing of the disputed items in the discovery summons dated 12 September 2005 took place before Hartmann J on 20 September 2005 (for 4 days), taking over the dates originally scheduled for the substantive hearing of the judicial review.

52.Hartmann J’s judgment on the discovery application was handed down on 4 November 2005. Although it is unnecessary to go into his actual decision on the contested items, it is nevertheless pertinent to highlight the fact that the judge fully recognized that the critical issue in the judicial review proceedings was the reason why the Applicants were denied entry. The orders for discovery made by him reflected this understanding.

53.By a letter dated 21 November 2005, the Department of Justice provided discovery in relation to the two categories of documents referred to in paragraph 47 above. A List of Documents was provided. Extracts from a Confidential Register and Control Case Reports in relation to the 4 Applicants were also produced. These documents, however, provided no details of why the Applicants were denied entry, other than there were “security grounds”.

54.What is of some significance was the reference in Schedule 2 of the List to : ‑

“Paper files under Reference Nos 05795, 05923, 06001 and 05670 as recorded in the Confidential Register and computer records relating to the 1st to 4th Applicants.”

The covering letter explained the status of these documents in the following way : ‑

“ The paper files and computer records enumerated in Schedule 2 are no longer in existence as they were destroyed in accordance with standard Immigration Department practice after the names of the persons in question were removed from the Watch list. Based on the entries under the ‘Date of Destroy’ column in the relevant pages of the Confidential Register, it can be seen that the destruction of the said files and records took place on 12th March 2003.”

55.This statement is of some considerable importance. For the first time in the history of the proceedings (by this time the judicial review proceedings had been in existence for nearly 2 years 9 months), there was a reference to the destruction of relevant documents. Throughout the many affirmations that had been filed on behalf of the Respondent, there had been no hint given of the fact that important documents had, as long ago as 12 March 2003 (barely 3 weeks after the relevant decisions were made), been destroyed.

56.A dramatic revelation such as this required a proper explanation from the Respondent not only as part of the duty of candour he had to fulfil but also because the very act of destruction, without explanation, necessarily gave rise to questions of motive for the destruction and as to the bona fides of the decisions challenged. It also required elaboration. Furthermore, if important documents had been destroyed, what was the basis of knowledge for the belief of the various deponents for the Respondent; a question lent more force because the reasons for refusal was said to be time or event specific. And reference was made to “standard Immigration Department practice” : what was this and what was the status of documents that was not in the possession of the Immigration Department but in other Government departments? Nothing was said about public interest immunity applying in any event to these decisions.

57.Neither an explanation nor elaboration was provided. This was to be a matter which Hartmann J eventually took up with Mr Fung at the substantive hearing in March 2007. Notwithstanding the fact that the Applicants did not take any action to compel the Respondent to provide an explanation or elaboration, I am of the view that the Respondent ought to have done so of his own volition as part of the overall duty of candour.

58.By a letter dated 23 January 2006, the Respondent produced another List of Documents, this time to deal with the other categories of documents ordered by Hartmann J to be discovered in his judgment of 4 November 2005.  

59.There was another reference to destruction of the various documents itemized in Schedule 2 of the List : ‑

“ The paper files and computer records enumerated in Schedule 2 of the List are no longer in existence as they were destroyed in accordance with standard Immigration Department practice after the names of the persons in question were removed from the Watchlist or three years after the relevant files were downgraded to non‑confidential files, whichever is applicable.”

60.In many ways, this was an even more obscure statement than the one contained in the letter of 21 November 2005 (see paragraph 54 above). Apart from the reference to the so‑called “Immigration Department practice”, there was an additional reference to the destruction of documents “three years after the relevant files were downgraded to non‑confidential files”. A full explanation and further elaboration were most certainly called for. For example, the reference to the destruction of documents three years after files were downgraded would surely not apply in the present case : the relevant events took place on 20 and 21 February 2003, which was less than three years back from the date of this letter alone. Conceivably, there may have been material on the Applicants before 20 February 2003, but this was never explained by the Respondent. Neither the court nor the Applicants should be required to speculate on matters which were entirely within the Respondent’s knowledge to disclose.

61.Unfortunately, this confusing state of affairs was never cleared up. The Respondent was quite content to leave everyone, including the court, in the dark.

62.In a contested hearing from 6 to 9 February 2006, (again these were dates originally intended for the refixed substantive hearing of the judicial review proper), Hartmann J dealt with two matters : an application by the Applicants to amend the Form 86A Notice to challenge the decision to put the Applicants on the Watch List on the basis they posed a security risk; and the disposal of various claims for public interest immunity.

63.The decision is again unimportant for present purposes but the following matters, which arise from the judgment of Hartmann J handed down on 8 May 2006, are of note : ‑

(1) It will be remembered that before this court, Mr Fung sought to excuse the unduly narrow view taken by the Respondent and his legal advisors of the duty of candour by asserting that it was only after Hartmann J gave leave to amend in the way indicated above that the Respondent realized that the judicial review involved issues going to precisely why the Applicants were considered security risks and that this involved Government departments beyond the Immigration Department (see paragraphs 32 and 44(3) above).

(2) This was an extremely surprising submission to make and one that really has no merit to it at all. For my part, I am simply not prepared to accept this is a reason. From the original Form 86A Notice, it must have been clear beyond peradventure that the Applicants were challenging the very basis of their being denied entry. The issue of precisely why they were denied entry was at the heart of the proceedings. Also to suggest that only the Immigration Department was involved was bizarre to say the least, and even by the Respondent’s own conduct of the proceedings was this suggestion a hollow one to make : as remarked earlier, the Respondent had seen fit to use affirmations made by Mr Timothy Tong who was the Acting Secretary for Security.

(3) Hartmann J referred in the judgment to the question (which he described as “fundamental” and “broad”) of why the Applicants were refused permission to enter Hong Kong. This issue was also variously described by him as the “core of the dispute” and “the real dispute in issue”. Most important, Hartmann J said that this issue had “always” been the basis of the judicial review proceedings. At paragraph 63, he said this : ‑

“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.” (emphasis added)

(4) Accordingly, Hartmann J allowed the amendments. On analysis, they simply reflected what had always been the main issue.

64.I should perhaps just briefly mention the public interest immunity aspect. Regarding the discovery that was ordered following the earlier hearing before Hartmann J in September 2005 (see paragraph 52 above), the Respondent produced a List of Documents (see paragraph 58 above), in which claims for public interest immunity were asserted. On 23 January2006, the Respondent applied for an order that the documents for which public interest immunity was claimed, should not have to be produced for that reason. The hearing in February 2006 dealt with this summons. There were further hearings on 24 May 2006 and 2 June 2006 in relation to the public interest immunity claims as well. The outcome was that the judge was of the view that the claim was made out. What is of particular note, however, was that none of the documents, the subject matter of the public interest immunity claims, nor the Certificate provided by the Chief Secretary in support, really went to the critical issue of the reasons why the Applicants were refused entry. It will be recalled that the important second affirmation of Mr Timothy Tong made a reference to public interest immunity in relation to the facts going to the critical issue. Yet, quite surprisingly, no application was made by the Applicants to pursue this by way of a formal application for discovery or interrogatories. The discovery summons taken out on 12 September 2005 (see paragraph 46 above) did not really target this part of Mr Tong’s affirmation at all.

65.The 2 June 2006 hearing is notable, however, in that counsel for the Applicants (Mr Paul Harris, SC) raised specifically the point that within the whole of Government, and not just the Immigration Department, there must have existed documents going to the core issue. Mr Harris further referred to the obligation on the part of the Respondent to put “all his cards face up on the table” (a reference to Ex parte Huddleston : see paragraph 14(3)(d) above).

66.In his judgment of 2 June 2006, Hartmann J said this : ‑

“ That does not end the matter. Mr Harris said that, if one of the Director’s senior officers was able in a recent affirmation to state that the first four applicants had been refused permission to enter Hong Kong on the basis that they posed a security threat, that information must, in all common sense, have been obtained from a written source of some sort. That source, however, has not been discovered by the Director. Mr Harris argues that, while that source material may not now be in the possession, control or power of the Director, it must surely be somewhere in the archives of Government. Mr Harris pointed to the fact that, although the Director is the cited respondent in these proceedings, he stands as a representative of the Hong Kong Government as a whole.”

67.Leading counsel for the Applicants asked Hartmann J to request the Respondent to disclose the documents referred to. This was misconceived because the court was, at the June 2006 hearing, clearly dealing with the claim for public interest immunity only and in any event, it was not up to the court to make ‘requests’ as such. When eventually Mr Harris asked for an order that the Respondent should provide a further affirmation going to these documents, Mr Fung (who then, as now, represented the Respondent) indicated that the Respondent had already complied with all discovery orders. This is of course correct as far as compliance with actual orders of the court were concerned. However, I am far from satisfied, for the reasons already gone into, that the Respondent had at that stage complied fully with the duty of candour at all. Here again the Respondent was conducting himself as if these were ordinary adversarial proceedings, with no hint – as was later suggested – that there were in fact no documents elsewhere within Government.

68.Nevertheless, Hartmann J refused to order the Respondent to make another affirmation. He said this : ‑

“ I am not prepared to make an order of the kind suggested by Mr Harris. Mr Fung, who has the assistance of Mr Mok, both being senior counsel, confirmed that the Director has acted at all times on legal advice. It seems to me that, if the applicants are of the view that there has been a lack of candour on the part of the Director or that further discovery should be made in respect of documents which perhaps do not lie in the possession, control or power of the Director himself but perhaps are in the possession of other departments of Government, then a formal application should be made going to these issues.”

69.However, realizing the potential importance of such an application but also noting the fact that there had already been substantial delays in the proceedings, Hartmann J indicated that the court would do its best to accommodate the Applicants in finding dates for the hearing of any application for discovery along the lines indicated.

70.Surprisingly, no application was made by the Applicants and this is a point that was seized upon by Mr Fung before us to support the argument that the Respondent had not breached the duty of candour. It will be necessary later in this judgment to deal with this.

71.On 6 June 2006, almost immediately following the hearing, HTW wrote to the Department of Justice requesting the discovery of documents within the whole of Government. The matter was put fairly and squarely to the Respondent : ‑

“In the light of your continuing duty of candour and duty to provide full and fair disclosure of documents, and of the references in Mr. Choi’s Affirmation and Affirmation of Mr. Tong, both dated 23rd September 2005, to information indicating that the 1st and 4th Applicants were involved with other individuals engaged in organising disruptive activities which pose threats to the public order of Hong Kong, we request that you please provide us with copies of all those documents which were the source of that information which are in your client’s custody, control or power. Such documents would include but not be limited to all Reports, Memoranda, Minutes of meetings and records of decisions that were taken, which contain, reflect or record the assessments made by the Security Bureau and related Government departments and the information and intelligence upon which they based their assessments that the 1st to 4th Applicants were involved in organising disruptive activities which posed threats to public order in Hong Kong and that their admissions into Hong Kong would be contrary to the public interest.”

72.The reply from the Department of Justice was, again, a surprising one. The expected response would have been to deal with the very inquiry that was made. The main point made by the Applicants was simply this. There had been numerous references in the affirmations filed on behalf of the Respondent to security risks. Yet, no underlying (or indeed any) documents had been disclosed or even referred to. The Applicants were anxious to obtain proper discovery of these documents. I cannot conceive that all this was anything other than self evident to the Respondent’s legal advisers.

73.The reply from the Department of Justice was dated 20 June 2006. Essentially, the response was as follows : ‑

(1) That discovery of the requested documents had already been provided. This was, in my view, an extremely dubious assertion to make. The Respondent had not previously indicated that the discovery covered also documents from Government departments other than the Immigration Department. For example, the letters dated 24 November 2005 and 23 January 2006 referred only to the Immigration Department (in the context of the destruction of documents). Further, the discovery that had up to then been provided did not reveal any documents from any department that provided any details of the security risks. It would, however, appear astonishing if no Government department, other than the Immigration Department, was in possession of relevant documents at some stage. What was to follow from the Respondent on this topic (as will be seen below) was even more astonishing.

(2) That the Respondent had fully complied with his discovery obligations. It was said therefore that there was no basis for the Applicants to make the request it did.

74.I would note also at this point that there was no mention in this letter of any missing documents, destruction of documents or non‑existence of relevant documents. There was no claim for public interest immunity either.

75.By its letter dated 29 June 2006, not satisfied with the response from the Department of Justice, HTW repeated the request for documents. The Respondent was also asked to confirm that in the preparation of their affirmations, both Mr Choy and Mr Tong only relied on documents that had actually been disclosed and not on any other documents.

76.The reply from the Department of Justice dated 7 July 2006 repeated the assertion that full discovery had been made and that the Respondent did not have the documents requested in his possession, custody or power. There was a reference to some documents having been destroyed (these being the documents referred to earlier : see paragraphs 54 and 59 above). The letter ended : ‑

“In these circumstances, it is plainly wrong for you to suggest that ‘both Mr Choy and Mr Tong only relied on those documents which [we] have already provided to [you] and no other documents or materials that were in the possession of any Government department’”.

77.This suggested that Mr Choy and Mr Tong did rely on other documents. Of course, what could have been meant was that these two gentlemen relied on documents that had since been destroyed but such a state of affairs would have been fairly bizarre.

78.The reply from HTW dated 24 July 2006 was, again, somewhat surprising. Having initiated an inquiry for relevant documents in the possession, custody or power of all Government departments, this letter appeared to narrow the request to just those documents that were actually relied on by Mr Choy and Mr Tong in preparing their affirmations. This was surprising in view of the fact that documents relevant as to why the Applicants were considered security risks, even if not actually relied on or seen by Mr Choy and Mr Tong, would certainly be discoverable. Such documents went to the main issue in the proceedings (and certainly to the issue of why the Applicants were placed on the Watch List), and this, whatever the Applicants or their legal advisors may have thought, must have been known to the Respondent and his legal advisors.

79.The Department of Justice replied in a letter dated 2 August 2006. It was yet another surprising response : ‑

(1) It started by reserving the position as to the correctness of the Applicants’ contention that the court was entitled to have before it all documents relied on by Mr Choy and Mr Tong in their affirmations. This was a very revealing statement and indicative of the unduly narrow view taken by the Respondent of his discovery obligations, not to mention the duty of candour.

(2) The letter then continued by providing, without prejudice to the argument referred to above and in order to avoid further hearings, a statement that Mr Choy and Mr Tong did not rely on any documents that had not already been made the subject of discovery. This was in fact quite the opposite of what had been said in the earlier letter dated 7 July 2006 (see paragraph 76 above). No explanation was offered as to this change of position.

80.No further discovery applications were made to the court. HTW, by their letter dated 19 August 2006, were content to apply for dates for the substantive hearing.

81.Before dealing with what took place before Hartmann J in the court below, I have to say that in spite of the numerous affirmations that had been placed before the court, the numerous interlocutory hearings that had taken place (this by itself is a rare occurrence in judicial review proceedings) and the extensive correspondence over discovery, the position by the time came to be heard by Hartmann J in March 2007 was this : no one was any the wiser as to why the Applicants were considered security risks. Further, in relation to the glaring question of what had happened to the documents relevant to the critical issue in the proceedings (which surely must have existed), no real answer had been provided by the Respondent. As will presently be seen, this was the very question that vexed Hartmann J at the substantive hearing.

The hearing and judgment in the court below

82.The substantive hearing of the judicial review before Hartmann J took place from 5 to 8 March 2007. Although I have so far in this judgment concentrated on by far the most important issue in this appeal (the duty of candour), other issues were raised for determination before Hartmann J. Before returning to the way in which the issue of the duty of candour (involving necessarily the issue of the Respondent’s discovery) was dealt with by Hartmann J, I ought first to identify these other issues. Most of them are now irrelevant for determination in this appeal.

83.Hartmann J identified seven issues for determination.   I quote from his judgment (which was handed down on 23 July 2007) : ‑

“ In light of this, it seems to me that the following issues arise in this application :

(i) In terms of the Basic Law and/or the Bill of Rights is the Falun Gong movement a religion?

(ii) Were the first four applicants, when they sought permission to enter Hong Kong, entitled to the protection of the fundamental freedoms, such as freedom of religion, enjoyed by Hong Kong residents under the Basic Law and/or the Bill of Rights?

(iii) If they were entitled to the protection of those freedoms, were they, in fact, denied permission to enter Hong Kong solely or substantially because of their religious or spiritual beliefs; that is, because of their Falun Gong following?

(iv) Were the decisions to place the first four applicants on the watchlist and to refuse them permission to enter Hong Kong Wednesbury unreasonable?

(v) If the first four applicants were denied permission to land solely or substantially because of their religious or spiritual affiliation, did that constitute a breach of the freedoms guaranteed to the fifth and sixth applicants under art.141(4) of the Basic Law?

(vi) By their possession of valid multiple entry permits, did the first four applicants have a legitimate expectation that, if denied entry, they would be accorded sufficient procedural fairness to enable them to know why that decision was made and to make representations? If so, were the first four applicants denied that procedural fairness?

(vii) Was the use of force employed to remove the third and fourth applicants from Hong Kong unlawful?”

84.It seems to me that the fundamental issue for determination by the court was whether the Respondent’s decision to deny entry to the Applicants was a lawful one. In context, this meant in the present proceedings an examination of the reason given, namely, that the Applicants were considered security risks. It was in the end unnecessary to determine as a matter of fact whether the actual reason for their being denied entry was their Falun Gong affiliation. The Applicants did not have to go so far (as stated above) : it was enough for the Applicants to point to an absence of any rational or proper basis for exclusion, or indeed to show that no reason really existed.

85.Other than the inquiry into the existence of reasons for the denial of entry and their lawfulness, ultimately it is, in my view, unnecessary for us to go into the first 5 issues as identified by Hartmann J. Whether or not fundamental freedoms guaranteed under the Basic Law or the Bill of Rights were engaged, are not critical issues to be determined. This can be tested in the following way. If the Applicants were right in their contention that the reason for their being denied entry into Hong Kong was no more than the mere fact of their Falun Gong association or that no proper reason existed, they were entitled to succeed in the judicial review proceedings. Even if fundamental freedoms under the Basic Law or Bill of Rights were not engaged, the decision of the Respondent would be liable to be impugned on the basis of irrationality or perverseness. Correspondingly, if the Respondent’s case that the Applicants posed security risks was made out, then even if rights under the Basic Law or Bill of Rights were applicable, his decision to exclude would have been a legitimate one. It is therefore unnecessary for the purposes of the present appeal to deal with those five issues in the same way as Hartmann J did. Nor is it necessary to deal with the seventh issue relating to the use of force : this was not an issue that was pursued in the appeal.

86.Instead, the focus of this appeal was on the duty of candour, whether in the circumstances of the case there has been a breach of this duty and if so, the consequences of such breach. The significance of this issue goes to the very heart of the judicial review : the reason why the Applicants were denied entry. It is this aspect on which I have so far concentrated.

87.The sixth issue dealing with procedural fairness and the possession of valid multiple entry permits is admittedly a separate issue, and I will in due course deal with it. However, by far the more important issue for determination is the one I have already identified.  

88.Hartmann J recognized the importance of the question of the lack of discovery on the Respondent’s part. In paragraph 110 of his judgment, he said this : ‑

“110. The issue of a lack of substantive contemporary documents, even if protected by public interest immunity, was of concern to me. As I said during the course of the hearing, the reasonable man on the street would probably have difficulty accepting that Government would have destroyed all of its records going to why some 80 people were refused entry to Hong Kong, two of those people having to be placed under physical restraint.”

89.In a nutshell, the quite extraordinary state of the Respondent’s evidence was very much a concern to Hartmann J. In the course of Mr Fung’s submissions on 8 March 2007 dealing with the compliance by the Respondent with the duty of candour (Mr Harris for the Applicants had submitted that the Respondent had breached this duty), it was submitted to the court that the Respondent had not only complied with his discovery obligations, but he had done so voluntarily. This was presumably a reference to the fact that some discovery had been provided voluntarily but, in view of the matters already gone into, it could hardly be said with any conviction that the Respondent had been at all forthcoming in discovery.

90.It was soon after leading counsel made this statement that the judge remarked that in fact there was really nothing before the court that went into the reasons for the denial of entry. Hartmann J posed the question “Is it credible that suddenly all the Government files and papers have been washed clean?” A reference was made to the duty of candour owed to both the other side and to the court. Hartmann J remarked twice about the possibility that there had been some sort of “hoovering” of Government papers.

91.The Respondent’s counsel was then asked to take further instructions during the lunch break, although I find it somewhat surprising that the Respondent had not gone to court prepared to deal with this glaring admission in the evidence, and, furthermore, the Respondent ought really have been prepared to offer a full explanation without having been prompted by an inquiry from the court. The duty of candour in my view would have required that a proper explanation be placed before the court.

92.After the lunch break on 8 March 2007, when counsel had taken further instructions from (as Mr Fung puts it) “the highest level”, the court was informed of the following facts : ‑

(1) All files relating to the entry of the four Applicants on the Watch List had been destroyed in accordance with standard procedures. The date of destruction took place about a month before the first time that the Respondent was informed that judicial review proceedings had been commenced (the Respondent was first informed of this by letter of 7 April 2003).

(2) Reference was made by Mr Fung to a column in the Confidential Register relating to the 4 Applicants (the Register had been disclosed in the List of Documents provided to the Applicants by the letter of 21 November 2005 (see paragraph 53 above). Indeed there is a column headed “Date of Destroy” and in the case of each Applicant, there has been inserted the date of 12 March 2003.

(3) Mr Fung then informed the court that this destruction was standard procedure. He reminded the court of the fact that there had been a reference to destruction “in accordance with standard Immigration Department practice” in the two said letters dated 24 November 2005 and 23 January 2006 (see paragraphs 54 and 59 above).

(4) Hartmann J was anxious to secure from counsel a clear answer to the question whether the reference to the destruction of the very documents that went to why the Applicants were considered security risks, was a reference, not just to the documents of the Immigration Department but whether this also applied to all such documents within any part of Government. Counsel confirmed this after assuring the court that this had been “checked and double-checked …. at the highest level responsible”.

(5) Hartmann J then said that he had to accept what was said to him by counsel. For the reasons that shall in due course be articulated, in my judgment, Hartmann J erred in this approach.

(6) What followed was an important exchange between the court and leading counsel that made the position clear (it is a lengthy extract but one which I think should be set out in full) : ‑

“COURT:   All right. Then if you say to me that there simply is no material or there has been no material available in the archives of government which has any relevance to this matter, and which, in fairness, should have been shown to the court, even under public interest immunity …

MR FUNG:  Yes, yes. My Lord, we …

COURT:      … in respect of 80 people being refused permission to enter Hong Kong, with proceedings taken within six weeks. Is that what you’re saying?

MR FUNG:  My Lord, yes. Because I can only act on instructions…

COURT:      All right. No, if that’s what you’re saying then that’s …

MR FUNG:  … MY Lord, because I not only …

COURT:      I don’t reject it, your saying that to me.

MR FUNG:  And we have checked and double‑checked this point, including over the lunch hour, in direct response to your Lordship’s question, at the very highest level of those responsible.

COURT:      Well, I’ll accept what you say. I have no reason not to.

MR FUNG:  We’ve even brought the confidential register – the actual, the original register with us in order to satisfy your Lordship that there’s been no tampering, if that is the suggestion. My Lord, that’s the only …

COURT:      Mr Fung, don’t – I did not suggest there was tampering.

MR FUNG:  Well, if …

COURT:      What I actually said at the end was, you should go and take instructions so that, if for example there has been destruction of material in the ordinary course of events to protect individuals, you can explain that to me this afternoon. The point I made was that on the face of it, to receive discovery of documents which are protected by public interest immunity, and to have a situation in which those documents say nothing of anything, at its face, when you’re aware that government as a whole here was being held liable not just the Director, seems strange. But if you say to me that all of the documentation concerning this matter in the archives of government was removed, destroyed or done away with insofar as it may have any relevance to these proceedings …

MR FUNG:  My Lord, absolutely not. Let me just illustrate that, just make that …

COURT:      When you say ‘absolutely not’ do you mean it was destroyed, removed …

MR FUNG:  It was destroyed but it wasn’t destroyed because we didn’t want to show it …

COURT:      No, I’m not suggesting it was, I’m just saying that as a matter of procedure …

MR FUNG:  Yes.

COURT:      … that’s what happened.

MR FUNG:  And indeed, can I just …

COURT:      So if somebody wanted to write a history of this in 25 years time under the Freedom of Information Act that we don’t have here, that person would be told, sorry, everything’s gone.

MR FUNG:  Well, I mean, he can search all the files, both electronically and on paper, but can I just demonstrate why this is so – and that there’s no withholding of information – would your Lordship go, please, to page 897. This refers to an earlier entry – does your Lordship have that?

COURT:      I do, yes.

MR FUNG:  An earlier entry of the 1st applicant’s name on the Watchlist on 17 October 2002. Your Lordship sees that. Nothing to do with this case. Would your Lordship please note the date of destruction of the underlying file, 30 October 2002 – nothing to do with this case. That destruction took place 13 days after the entry of the name on the Watchlist; a much shorter period.

COURT:      I’m not disputing that or anything else. I have your answer now.

MR FUNG:  I’m grateful. I’m grateful. And if I’ve misunderstood your Lordship then it’s my fault. It’s my fault that – I thought the matter was so important, since your Lordship has ventilated it, that it …

COURT:      Well, it is important, it’s very important…

MR FUNG:  … that it’s worth …

COURT:      … because Mr Harris, apart from anything else, says that the real reason for these people being refused entry was simply because of their beliefs. You say that’s not the case…

MR FUNG:  That’s not the case.

COURT:      … Mr Harris says, well, his argument can be supported by lack of candour on the part of government and that lack of candour is shown in the fact that somehow or other there’s not a document in existence which says anything about the reasons for the decisions.

MR FUNG:  That is not the case.

COURT:      And that’s why I specifically referred to my ruling of 26 May when I said “as to the nature of the additional documents, it seem obvious to me they must contain the essential intelligence or a distillation of it’ and then when I then said ‘I was wrong in drawing that inference, they don’t contain anything”. But it may well be that I have – and Mr Harris – have to accept and do accept that this type of information does not have a shelf life, that in order to protect individuals it is done away with, and that’s what you’re saying to me, and that’s where we stand with it.

MR FUNG:  My Lord, yes. And it’s not the same in every individual case either, because – let me give you another example, 899, my Lord …

COURT:      No, I’ve been through them, I can promise you.

MR FUNG:  There is there, in the case of Liao Hsiao Lan, for an earlier entry into the Watchlist, a downgrading of the file; the file is not destroyed, so that file is still in existence. But that file has absolutely nothing to do with the present case.

COURT:      No, of course.

MR FUNG:  So it’s not as if there is, as it were, a three‑week magic period of shelf life only.

COURT:      No, obviously not. If you’ve got files that are current you don’t destroy them …

MR FUNG:  Less sensitive, yes.

COURT:      … or if they’re especially sensitive you don’t destroy them.

MR FUNG:  And so on. Now there’s no, as it were, corky cutter approach to these matters, so I understand, as to how the records or the underlying files are destroyed or not, as the case may be, and the Watchlist being this computer tool to protect Hong Kong’s interests – not just security interests but all sorts of other interests – it’s constantly being upgraded …

COURT:      Of course.

MR FUNG:  … and depending on the nature of the file, is either downgraded or destroyed and if it’s downgraded, it’s still in existence. My Lord, I was told that the reference your Lordship has made to your judgment of 26 May 2006 refers to documents which are not germane to the present hearing. But I’m just asking for those documents to be brought up so that we’re not labouring under any sort of misapprehension.

COURT:      No, no. I’m not suggesting that they necessarily are. You’ve given me your answer now and I have it. So the matter has been clearly stated from your point of view, which is, on instructions, that the Watchlist entries which I knew already – because my judgment was not concerned with the Watchlist entries – are deleted in order to protect individuals within a reasonably short period of time…

MR FUNG:  Yes.

COURT:      … and that’s why I mentioned it this morning, and that other documentation, either which was discovered under public interest immunity or otherwise, or which was not discovered, there are simply no documents of relevance to this case as to the reasons why these people were not allowed permission to enter Hong Kong in the archives of government.

MR FUNG:  My Lord, we have taken steps directly in response to the various observations made by your Lordship at the highest level to give your Lordship, and confirm to your Lordship, that what we stated in the discovery process – and your Lordship sees that in the letter to which I’ve made reference and in the list of documents- that’s page 888 of bundle D and 890, which is Schedule 2 – is entirely accurate. The six dates I’ve given your Lordship are also entirely accurate. The interdepartmental memo, which is confidential, is a document which we would be prepared to share with your Lordship. It’s not a matter for discovery but …

COURT:      I have your undertaking, on instructions, the government does not in its archives have any material that goes to why these 80‑odd people were refused permission to enter Hong Kong.

MR FUNG:  My Lord, that is correct. We have not just gone to the Immigration Department, may I make that point …

COURT:      And all I’m saying is and all I meant to say this morning, and if there was any misunderstanding, I apologise – is that the ordinary man on the street, he may say – leaving aside the Watchlist, which was never part of anything else – it is puzzling that there would be no documentary evidence of any kind in the archives of government anywhere going to an issue which was only six weeks old and involved the refusal to land of 80‑odd persons and the carrying of two of them against their will back to their aircraft, in respect of an organisation which some would call notorious and others would say has about it considerable sensitivity. Now I don’t know how government works. You’ve told me how it now works and I accept that absolutely and without reservation. I have no reason not to.

MR FUNG:  I’m grateful, my Lord. We don’t use any particular adjectives to describe the Falun Gong.”

93.These exchanges between leading counsel for the Respondent and the court clearly demonstrate the unsatisfactory way with which the Respondent had approached the question of discovery. If (and I use this word quite deliberately in view of some of the statements made to the court in the course of leading counsel’s submissions during this appeal and in the various hearings leading up to it) what was said was the true position, then it really was the first time in the whole proceedings that the Respondent had made clear his position in the following crucial respects : ‑

(1) That the documents underlying the reasons why the Applicants were considered security risks such as to be placed on the Watch List and such as to justify their being denied entry into Hong Kong on 20 and 21 February 2003, were all destroyed.

(2) This applied to all documents within the whole of Government, and not just the Immigration Department.

(3) The date of destruction of all these documents was 12 March 2003, less than a month after the relevant decisions were made.

94.Quite why these simple (albeit crucial) statements could not have been made by the Respondent right at the outset of the proceedings, frankly and fairly and consistent with the duty of candour, was never explained to the court. These were points that were not made in the many affirmations that were filed nor in the course of the lengthy correspondence exchange between the parties. Mr Fung was unable to assist us either in this respect. He referred to the narrow view that the Respondent’s legal advisors took of the ambit of the judicial review. This was an obviously unsustainable argument. He relied heavily on the fact that the destruction of documents had been referred to in the correspondence (see paragraphs 54 and 59 above). This is accurate only to the extent that there was a reference to destruction of documents in accordance with “standard Immigration Department practice”. These references did not give the reader any idea that in fact all relevant documents within the whole of Government had been destroyed, or that the destroyed documents were in fact the crucial ones going to the critical issue.

95.Even with these revelations made by leading counsel, a number of obvious queries remained : ‑

(1) Nothing had been said to address the obvious contention that if these Applicants did pose (in the words of Mr Timothy Tong) “threats to the public order of Hong Kong”, it was incredible that nowhere in the whole of Government would there be a written record of this.

(2) Even if all documents no longer existed, surely there would be persons within Government who would be able to provide details of what was in the destroyed documents going to the reasons why the Applicants were denied entry. The contents of the affirmations of Mr Choy and Mr Tong would suggest that they knew. Admittedly, in the second affirmation of Mr Tong, he does say that the disclosure of details would be within the ambit of public interest immunity, but with respect, this was not a point that was made by Mr Fung to Hartmann J at all. If this was a valid point, one would have expected leading counsel to have at least mentioned this.

(3) If all relevant documents had been destroyed since 12 March 2003, then on what basis did Mr Tong rely to depose to the facts contained in his second affirmation? It will be recalled he did not actually reveal the sources of his knowledge.

(4) Nevertheless, Hartmann J did accept the statements of fact made from the Bar table. The Applicants’ leading counsel (Mr Harris) did respond but no application was made by the Applicants that the matters revealed to the court by Mr Fung should more properly be contained in an affidavit and, more important, no application was made for cross–examination of the main deponents of the Respondent (namely, Mr Choy and Mr Tong).

96.In the course of his judgment, Hartmann J did not feel able to reject the matters that he had been told by leading counsel. He came to the view that the duty of candour had not been breached and that the allegations of bad faith leveled against the Respondent, were not made out. This being the case, the judge was persuaded that the real reason for the Applicants’ exclusion involved security concerns, which he regarded as a legitimate reason for the denial of entry into Hong Kong. The judge was not persuaded by the Applicants that they were denied entry by reason of their Falun Gong beliefs.

97.I shall return to Hartmann J’s judgment when I set out the conclusions in this appeal (dealing with the issues of the duty of candour and of procedural fairness). Before doing that, I ought to mention briefly the history of this appeal, from the time the Applicants served their Notice of Appeal up to the hearing of the appeal itself.

The appeal

98.Following Hartmann J’s judgment which was handed down on 23 March 2007, a Notice of Appeal was lodged by the Applicants on 23 April 2007. The appeal was eventually heard by this court on 16 March 2009. In between, however, there have been a number of hearings and numerous applications for the introduction of additional evidence for the appeal. It is largely unnecessary to go into much detail in respect of these hearings, but I shall in due course identify the various applications to adduce further evidence. This appeal was originally scheduled to be heard on 22 January 2008, but the matter was adjourned on the application of the Respondent to adduce further evidence (this following questions raised by this court over the state of the evidence). The application to adduce evidence by the Respondent was heard by this court on 23 September 2008 but this was adjourned. The adjourned hearing of the appeal was to be on 29 October 2008. On that day, however, the 6 Applicants appeared before us indicating their wish no longer to be legally represented in the appeal, choosing instead to act in person. Another adjournment was therefore granted. Following this hearing, the court appointed Mr Shieh as amicus curiae.

99.Before going into the details of the various applications made by both the Applicants and the Respondent relating to the introduction of further evidence on appeal, I ought to set out the context. At the hearing on 22 January 2008, considerable concerns were raised by this court over the question that has concerned this court in these proceedings at every stage : the lack of any details or documents going to the issue of why the Applicants were denied entry into Hong Kong. Despite what leading counsel had said to Hartmann J at the hearing on 8 March 2007 (see paragraph 92 above), it seemed quite remarkable that even at the appeal stage, no one was any the wiser on the reasons why the Applicants had been excluded. The queries set out in paragraphs 93 to 95 above were ones that seemed to us to call for a proper and full answer.

100.The concerns raised by the court led to a number of applications made by both parties in relation to these concerns. Other applications were made as well. The following applications made in the course of the appeal : ‑

(1) By a summons dated 28 December 2007, the Applicants applied to adduce new evidence by way of the introduction of 10 affirmations that had been filed by the Applicants in another set of judicial review proceedings (HCAL 74 of 2007) in which the decision of the Director of Immigration to deny entry to Falun Gong followers during another period (this time between 23 June 2007 and 1 July 2007), was challenged. This summons was not concerned with the question of the Respondent’s discovery but was an attempt by the Applicants essentially to demonstrate that the real reason for their being denied entry into Hong Kong was their Falun Gong association.

(2) By a summons dated 5 February 2008, the Respondent applied to introduce an affirmation of Mr Lee Siu Kwong, Ambrose (the Secretary for Security) and Mr Li Kwok Kuen (a Chief Immigration Officer in the Immigration Department). These affirmations were an attempt to state on oath what leading counsel had told the court on 8 March 2007.

(3) By a Notice of Motion dated 4 December 2008, the Applicants applied, in the event the two set affirmations were admitted under the Respondent’s summons dated 5 February 2008, to cross‑examine the two deponents.

(4) By a summons dated 11 February 2009, the Applicants applied to adduce an affirmation going to the perceived persecution of Falun Gong followers by the Central Government (the affirmation of one Terri Marsh) and also an affirmation (of the 5th Applicant) dealing with HCAL 74 of 2007. This latter affirmation was related to the summons dated 28 December 2007.

(5) In the course of the hearing of the appeal proper, the Respondent applied by a summons dated 11 March 2009 for leave to use a second affirmation made by Mr Ambrose Lee.

101.In the event, all these applications were dismissed by the court during the hearing, with reasons to be provided at a later stage.

102.I shall deal with the reasons for dismissing the summons dated 5 February 2008, the Notice of Motion dated 4 December 2008 and the summons dated 11 March 2009 when I set out my conclusions in relation to the issue of the duty of candour. The other two summonses do not really relate to this issue. I deal first with these.

103.As to the reasons for dismissing the summons dated 28 December 2007 (seeking leave to adduce the affirmation evidence in HCAL 74 of 2007) : ‑

(1) The proceedings in HCAL 74 of 2007 never progressed beyond the leave stage. On 30 June 2007, Lunn J granted leave to commence judicial review proceedings. On the application of the Respondent to set aside leave on the ground of material non‑disclosure, A Cheung J did so in a judgment handed down on 13 February 2008. Although a Notice of Appeal was served against this decision, eventually the appeal was abandoned by the Applicants. Accordingly, if the affirmations, all from the Applicants in those proceedings (since leave was set aside, the proceedings never reach the stage of the Respondent having to serve evidence), had been admitted as evidence in the present proceedings, a necessarily one‑sided version of events would have been before this court. The spectre therefore loomed of the Respondent in the present proceedings being in turn given leave to file evidence to answer to these affirmations in HCAL 74 of 2007. There would also likely be cross‑examination on all affidavit and affirmation evidence. Effectively, in such a scenario, HCAL 74 of 2007 would be litigated before this court when those proceedings had already terminated. This would have been absurd.

(2) Further, the only purposes for introducing the evidence in HCAL 74 of 2007 were originally stated to be only two (this was contained in a letter dated 22 January 2008 from HTW, then acting for the Applicants in the present proceedings, to the Department of Justice : ‑

(a) that the 1st Applicant in the present proceedings was denied entry into Hong Kong on two occasions in June 2007; and

(b) that she was one of 400 Falun Gong practitioners from Taiwan who were denied entry between 24 June 2007 and 1 July 2007.

(3) I have to say that these two facts were irrelevant to the issues that have to be determined in this appeal (indeed the Respondent had at one stage agreed to them). The 1st Applicant in her submissions eventually sought to widen the scope of the use of the affirmations in HCAL 74 of 2007 but it seems to me even then, the relevance of the affirmations was highly dubious to say the least.

104.As for the summons dated 11 February 2009, the reason for dismissing it was on the basis of lack of relevance : ‑

(1) The evidence of Terri Marsh (an Executive Director of a body known as the Human Rights Law Foundation) went to the perceived persecution of all Falun Gong followers by the Central People’s Government. This is an irrelevant issue in the present proceedings. The focus in this appeal is really on whether the Respondent had any lawful basis to deny entry to the Applicants. It is irrelevant (at its highest, marginal) how Falun Gong followers perceived their treatment by the Chinese authorities. In any event, this type of evidence was open to the Applicants to adduce in the court below, but was not. The only new feature was the existence of newly discovered evidence going to the belief of this perceived persecution.

(2) As for the affirmation of the 5th Applicant, this was introduced to explain why the Applicants in HCAL 74 of 2007 abandoned the appeal from A Cheung J’s decision setting aside the leave that had originally been granted. It was suggested that although the appeal was abandoned, A Cheung J’s decision was wrong. In my view, it is irrelevant why the Applicants chose to abandon their appeal. None of this detracted from the cogent reasons for not otherwise admitting the evidence from those proceedings (see paragraph 103 above).

Conclusions on the duty of candour

105.As will already be apparent, the issue of whether the Respondent has complied with the duty of candour arises in the context of the court’s examination of the lawfulness of the Respondent’s decision to deny the Applicants entry into Hong Kong. The other decision that is impugned in these proceedings (the decision to place the Applicants on the Watch List) is merely a corollary of the decision to deny entry : it arises only to testthe basis of the claim by the Respondent that the Applicants were denied entry by reason of security risks.

106.It will also be apparent that the focal point of the discussion into the duty of candour in the present case is very much the extent to which the Respondent has chosen to reveal, particularly in relation to the aspect of discovery, the true basis justifying the refusal of entry on security grounds.

107.I have already highlighted, when going through the affirmations and procedural history in the present proceedings, the extremely unsatisfactory way in which the deponents of affirmations filed on behalf of the Respondent have dealt with the matter, and also in which the discovery exercise has been undertaken and dealt with in correspondence.

108.This was exacerbated by the way the matter was presented to Hartmann J. In my judgment, it was quite wrong for crucial statements of fact to be presented in the way it was to Hartmann J by leading counsel. At the very least, there ought to have been an affidavit verifying the matters that were stated to the court, together with an explanation as to why such matters were revealed so late in the proceedings.

109.It is fundamental that statements from the Bar table do not constitute evidence, unless agreed as such. On a matter as important as was the statement made by counsel for the Respondent, it was particularly inappropriate to accept the statement as evidence and particularly surprising that the judge’s announced intention to do so was not met with objection by counsel for the Applicants.

110.In the light of the history of the case, the judge might have been forgiven in any event for testing the statement. I am bound to remark, in this regard, upon the inconsistent way in which Mr Fung addressed us during the appeal proper (and in previous hearings) on the issue of the material that existed to support the allegation that the Applicants posed security risks. It will be remembered that the impression clearly given to Hartmann J on 8 March 2007 hearing was that all relevant documents in any department of Government had been, as a matter of standard practice, destroyed. This obviously presupposed that relevant documents did exist at one stage within Government departments other than the Immigration Department. With documents having been destroyed on 12 March 2007, this raised a number of queries regarding the affirmations in particular made by Mr Choy Tak Po and Mr Timothy Tong. For example, in relation to those references made by them to security concerns and the threats to public order in Hong Kong posed by the Applicants, what were the sources of these statements of belief?; had the deponents read documents that had since 12 March 2007 been destroyed?; or were they deposing to matters within their own personal knowledge?; or did these matters originate from other unspecified sources?

111.These were precisely the sort of questions that arose in the appeal and it would not be an exaggeration to say that the court was anxiously looking to the Respondent’s legal advisors for enlightenment. Unfortunately, this was not forthcoming, indeed far from it : ‑

(1) At the hearing which took place on 23 September 2008 (at the hearing of the Respondent’s application to adduce further evidence), leading counsel for the Respondent indicated to the court that by reason of the destruction of documents, the various deponents of affirmations filed on behalf of the Respondent were relying “purely” on their own memory.

(2) At the hearing before us on 29 October 2008 (when the Applicants requested an adjournment after indicating they wished to appear in person : see paragraph 98 above), the following exchange took place between the court and leading counsel : ‑

“STOCK JA: What I can’t remember, because the facts have become so complicated and the papers so voluminous, what I can’t remember is whether it is the government’s case that it knows of the detailed reasons though the papers have been destroyed, on the one hand, or, on the other hand, whether because the papers have been destroyed, the precise reasons, in other words, precise as opposed to security reasons, are now forgotten.

MR FUNG: It’s really the latter.

STOCK JA: It’s the latter.”

(3) The court was thus told in no uncertain terms that the detailed reasons going to the security concerns posed by the Applicants, could no longer be recollected by anyone.

(4) It will be noted at once that not only did this emerge for the first time in this litigation, but this seemed to contradict the previous position. For example, in Mr Timothy Tong’s second affirmation (see paragraph 34(3) above), he was stating that the detailed reasons going to security concerns could not be disclosed by reason of sensitivity, and that they would be covered by public interest immunity. These statements made by Mr Fung were also contradictory to what the court had been informed on 23 September 2008 when all that was said was that the deponents would have relied on their own memory. Nothing was said about their inability to remember details.

(5) On the second day of the hearing of the appeal (11 March 2009), leading counsel then informed the court that in fact no Government department other than the Immigration Department had ever possessed any relevant documents. This statement again directly contradicted much of what had previously been said on behalf of the Respondent. It will be recalled that the crucial exchange on 8 March 2007, leading counsel assured the court that all documents within the whole of Government had been destroyed as a result of standard procedure. This implied the existence of documents possessed by Government departments other than the Immigration Department. Moreover, nowhere had this position even been hinted at in the course of the proceedings, certainly not mentioned in the affirmations filed by the Respondent nor in the correspondence exchanged between the parties. Nor had this point been mentioned in any previous court hearings.

(6) Eventually, on the third day of the appeal (12 March 2008), leading counsel indicated to the court that what had been said the previous day may have been erroneous. The position that day appeared to be that the detailed reasons for considering the Applicants as security risks were known but if pressed, a claim for public interest immunity would be made (cf the position in the second affirmation of Mr Timothy Tong : see paragraph 34(3) above).

112.I have already made reference to the Respondent’s application to adduce further evidence. This was the summons dated 5 February 2008 which was countered by the Applicants’ summons dated 4 December 2008 seeking leave to cross‑examine : see paragraphs 100(2) and (3) above.

113.One of the affirmations sought to be introduced was that of the Secretary for Security, Mr Ambrose Lee. In it, he says this : ‑

“ In the case relating to the refusal of entry to Hong Kong of he 1st – 4th Applicants on 21st – 22nd February 2003, based on my understanding and a full search conducted by serving officers in the SB, I can confirm that at the time of the Applicants’ application for leave for judicial review in HCAL 32 of 2003 on 3rd April 2003, neither the SB nor related Government Departments were in possession of any records relevant to the reasons why the 1st – 4th Applicants were considered a security risk or why they were recommended to be put on the Watch List. The SB and related Government Departments did not keep or retain such records. At the material time, the Applicants did not pose ongoing security risks to warrant the retention of such information. However, operational records in respect of the actions of refusal of entry, including the interview records as contained in the Control Case Reports as well as the Confidential Register, were retained by the ImmD in accordance with the Department’s normal procedure and practice which, as I understand it, have already been disclosed by the Director of Immigration in HCAL 32 of 2003.”

114.This was an attempt to put in affidavit form what Hartmann J had been informed by counsel on 8 March 2007. The other affirmation sought to be introduced (that of Li Kwok Kuen) added little.

115.In the end, the court decided to refuse the Respondent’s application to adduce further evidence. As will already have been seen, the conduct of the Respondent and his legal advisors throughout the proceedings had been far from satisfactory, indeed contradictory. In these circumstances, it would simply have been wrong to allow such further evidence be used in this appeal. In any event, on any view, this evidence ought to have been placed before the court below rather than at the appeal stage. With this application dismissed, the Applicants’ Notice of Motion for cross‑examination also fell away.

116.For completeness’ sake, I ought also to deal with the Respondent’s application (made during the course of the appeal on 11 March 2009), seeking leave to adduce yet another affidavit of Mr Ambrose Lee. In it, Mr Lee sought to make the point that no other Government department possessed any relevant documents : all had been passed to the Immigration Department “on or around 14 February 2003”. This point had never been made before and represented yet another factual twist. For the same reasons dismissing the 5 February 2008 summons, this summons was also dismissed. This summons was yet another late attempt to deal once more – only when forced to ‑ with the key issue in this appeal : the duty of candour. But that was not the end of it. On 13 March 2009, without any prior intimation, a letter was provided to the court by the Department of Justice (just before the hearing commenced that day) in which, at this late stage (Day 4 of the appeal), it was indicated that all key deponents of the Respondent (the Secretary for Security, Mr Timothy Tong, Mr Choy Tak Po and Mr Lee Kwok Kuen) were ready to present themselves for cross‑examination. This came without any real explanation as to why, when the Applicants’ application for cross‑examination was resisted all along and in view of the quite uncooperative way in which the litigation had been conducted by the Respondent, this offer was made at all. Despite Mr Fung’s submissions to the contrary, for my part, I see no reason other than this offer having been made purely for tactical purposes.

117.And so I come to my conclusions on the duty of candour. Without the additional material that was put before Hartmann J on 8 March 2007 by way of submissions from the Bar table and the material which was sought to be put before us by way of additional evidence, the court is left to deal with this issue on the basis of the other facts and matters that were before Hartmann J.

118.Regretfully (and I use this expression deliberately since, in most cases, the issue simply does not arise because the duty is almost invariably observed by the Government), the duty of candour has been breached in the present case by the Respondent. In the course of this judgment, I have tried to highlight those areas in which the Respondent has failed to discharge the duty of candour. Ms Chu (the 1st Applicant) submitted forcefully that all the Applicants wanted to know was why they were denied entry. If the Respondent’s position was that this was not by reason of their Falun Gong association alone, then just what were the reasons? The most that was said was that there were security concerns. The furthest that this aspect was ever developed was that the 4 Applicants were “involved with some other individuals engaged in organizing disruptive activities which pose threats to the public order in Hong Kong”. Even to this day, over six years since the date the 4 Applicants were denied entry, it is still unclear just what was the basis for this statement, nor is it clear as to whether any documents exist to support it. It is a most extraordinary state of affairs.

119.The particular coyness by which the Respondent approached discovery and the inconsistent versions given as to the existence (or non‑existence) of relevant documents, coupled with the way the court has been addressed on various occasions by counsel, substantially exacerbated what was already a highly unsatisfactory situation.

120.Normally, where the duty of candour has been breached in such a way in relation to the disclosure and presentation of relevant facts, the consequence in judicial review proceedings (as in other proceedings) is that the court is entitled to draw adverse inferences.

121.In the present case, the inference which the Applicants invited the court to draw was that the Respondent did not have any valid or justifiable reasons to deny the 4 Applicants entry into Hong Kong on 21 and 22 February 2003 (nor to put their names on the Watch List). As stated before, it was not necessary for the Applicants to show that the real reason was their Falun Gong association.

122.But is this the correct or fair conclusion to reach?

123.In my judgment, I am unable in the circumstances of the present case to draw this adverse inference. I am particularly mindful of the fact that the Respondent’s case remains that the Applicants were excluded from entering Hong Kong by reason of security concerns. Even taking into account every unsatisfactory aspect of the way the Respondent has conducted this case, he has at least been consistent in this being the reason for the denial of entry into Hong Kong.

124.By itself, the reason that was provided (namely security concerns) is not one that can be rejected out of hand as being inherently implausible. In addition, when Mr Tong (in his second affirmation) states that the detailed reasons are sensitive matters that ought not to be in the public domain, and which might attract a claim for public interest immunity, this is not a statement that can be rejected out of hand either.

125.What is really being suggested by the Applicants is that Mr Tong (and others who have provided a similar version such as Mr Choy) should not, in circumstances where the duty of candour has not been observed, be believed. It is this position that I have the greatest difficulty in accepting in the present case : ‑

(1) There has been no cross‑examination sought of either Mr Tong or Mr Choy. It is of course possible for the court to reject affidavit evidence given on oath even where there has been no cross‑examination, but the circumstances will be rare. Inherent improbability, implausibility or contradiction may provide adequate reasons. So might a failure to observe the duty of candour, but it is necessary for the circumstances to be critically examined.

(2) It therefore becomes relevant to look at the conduct of the Applicants’ themselves. It will be remembered that in the court below and for a part of the appeal proceedings, the Applicants were legally represented. Leading counsel was retained on their behalf. Account must be taken of the fact that the Applicants and their legal advisors may well have had their own reasons not to make the various applications I have mentioned.

(3) It could not really be said that the possibility of applying for cross‑examination of deponents of affirmations was lost on the Applicants. In fact, in the court below, an application was made (and granted) to cross‑examine Mr Lau Wing Yiu on his affirmation (in relation to the answering of questions by the 4 Applicants on their arrival in Hong Kong on 20 February 2003). It was never made clear to us just why the Applicants did not seek to cross‑examine anyone else.

(4) No application was made either to seek further discovery from the Respondent in relation to critical documents. It will be remembered that during the hearing before Hartmann J on 2 June 2006 when leading counsel for the Applicants sought an order for discovery in respect of relevant documents within the whole of Government, the judge indicated that this matter was not before the court at that time but that he would do his best to accommodate the parties if a formal application was made : see paragraph 69 above. The Applicants never did, choosing instead to take a somewhat narrow view of discovery in the correspondence : see paragraph 78 above.

(5) It was also surprising that the Applicants did not challenge the public interest immunity assertion made by Mr Tong in his second affirmation (see paragraph 34(3) above). Instead, public interest immunity challenges were made in relation to other (as it turned out) irrelevant aspects (see paragraph 64 above).

(6) I have already commented (in paragraphs 95(4)and 109 above) on the failure, surprising in my view, to insist that the matters asserted by Mr Fung at the substantive hearing before Hartmann J be placed before the court in proper form. Had this been done, it would of course have been open to the Applicants to seek to cross examine any relevant depondent.

(7) It was at no stage suggested by the Applicants before us (in the course of Ms Chu’s submissions) that their previous legal advisors were in any way at fault; indeed quite the contrary was submitted.

(8) While the conduct of the Applicants did not in my view excuse the Respondent from complying with the duty of candour (for the reasons already discussed above), it is nevertheless relevant in the consideration of whether adverse inferences should, as a matter of fairness, be drawn.

126.The end result becomes then that the only evidence going to the reason why the 4 Applicants were refused entry into Hong Kong on 21 and 22 February 2003 were the security concerns referred to by the Respondent. In particular, as Mr Tong deposed in his second affirmation, they posed “threats to the public order of Hong Kong”. The detailed reasons could not be provided by reason, according to Mr Tong, of sensitivity. Given these facts which, for the reasons I have given, cannot properly be dismissed, despite the Respondent’s conduct and breach of the duty of candour, I reach the same conclusion as Hartmann J did that it has not been shown by the Applicants that either of the relevant decisions can be impugned in these proceedings.

Procedural fairness and the possession of valid multiple entry permits

127.I have already identified this issue as one that requires to be determined in this appeal : paragraphs 83 and 87 above. The terms of the entry permits have already been set out : see paragraph 26 above.

128.I can dispose of this issue shortly. In his judgment, Hartmann J highlighted the relevant principle to be that aliens had no right to be afforded a hearing to determine whether or not they should be permitted to enter. As long as the Respondent did not act arbitrarily or without proper reasons, there was no legitimate expectation either to be admitted into Hong Kong or to be entitled to a hearing to determine this. This is notwithstanding the possession of a valid multiple entry permit. Hartmann J emphasized as well the fact that the permit expressly stated on their face that the holder would be subject to immigration control. This was enough to subject the Applicants to the provisions of the Immigration Ordinance, Cap. 115 giving the Respondent the widest power to control entry into Hong Kong.

129.I am entirely in agreement with the conclusion reached by Hartmann J on this aspect and the reasons he articulated in his judgment. The Applicants, accordingly, failed on this ground as well.

Conclusion

130.For the above reasons, I would dismiss this appeal.

131.I conclude this judgment by saying that the Respondent can consider himself extremely fortunate in these proceedings. If the Applicants had conducted themselves differently by, for example, making the necessary discovery applications or applying for cross‑examination of various deponents, these judicial proceedings would have taken a much different course and, depending on what evidence emerged, the court may have been driven to arrive at a quite different result. However, this is not in any way to lessen what I have determined to have been a breach of the duty of candour on the Respondent’s part. It is not something of which the court would want to see a repetition in future.

132.For this reason, I would also make a costs order nisi that notwithstanding the dismissal of the appeal, there should be no order for costs in this appeal and this would include the costs in relation to the various interlocutory applications before this court where costs had been reserved. I understand that as far as the costs below (including the costs of various interlocutory applications) are concerned, the determination of such costs have been adjourned pending the determination of this appeal.

Hon Stock VP :

133.This is a case in which a reason for refusal of entry into Hong Kong was in fact given. The reason is said to be demonstrably false thereby illustrating (it is argued) that the decision to refuse entry was exercised on illegitimate grounds. In this way the reason became the issue in the application for judicial review.

134.The reason given was security threat. In September 2005, a few weeks before the substantive judicial review was due to be heard, the Respondent filed affirmations in the course of which the contention was made that the first four Applicants “were involved with some other individuals engaged in organising disruptive activities which pose threats to public order in Hong Kong.” That was said to be the security threat in the case. The nature of those disruptive activities were not then disclosed. They have not been disclosed since.

135.The Applicants say that even if the source of the information cannot be disclosed, it is puzzling to understand why no one is prepared to say what the suggested planned disruptive activities were. There was a hint by counsel for the Respondent in the course of oral submissions before us, that the feared disruption had to do with the forthcoming conference or demonstration. If so, one might ponder, what was the problem with stating that in terms in an affirmation? There is no suggestion that such disruption was feared from the Falun Gong adherents resident in Hong Kong either then or on previous or subsequent occasions. The Applicants assert that the history of Falun Gong demonstrations is one of peaceful activity; that the individual Applicants cannot have been thought generally to be conducting secret subversive plotting in Hong Kong, else they would have been refused entry, before and since, on all attempted visits to the Region. They point too to the (uncontested) fact that they were not singled out as four individuals for refusal of entry. Instead, they say, no fewer than 80 Falun Gong practitioners not resident in Hong Kong were turned back that day, a fact they contend that sits more obviously with a blanket refusal policy than with one tied to individual risk; and that if one puts these facts together with:

(1) the failure of the Respondent to specify the nature of the feared disruptive activities;

(2) the Respondent’s contention that all documentation that revealed the underlying reasons has been destroyed; and

(3) the Respondent’s coy, ‘tight’, adversarial and legalistic conduct of these proceedings amounting, they say, to a lack of candour;

the only reasonable inference to be drawn is that the reason provided by the Respondent for refusal of entry is not the true reason.

136.The Applicants do not doubt that the front line immigration officers were told that the Applicants were a security risk, and acted accordingly, but the case is that their decision to refuse them entry was tainted by the feeding of a bogus reason. In this case, the immigration authorities chose to provide a reason for refusal of entry. If a bogus reason has been put forward that can only mean, say the Applicants, that the true reason is one that is outwith the policy and objects of the immigration legislation with which we are concerned.

137.The issue that evidently caused Hartmann J much concern is the one that has been the centre of this appeal. The Applicants contended, both in correspondence and before him, that the Respondent was playing matters close to the chest in a way that was inappropriate in judicial review proceedings and that this was but part of the picture which, when viewed as a whole, illustrated that the truth of the matter was being hidden. This suggested lack of candour was most obviously evidenced by the Respondent’s attitude to discovery and by the apparent absence – going back to March 2003 – of any documents whatsoever in the hands of the Director, as well as in the hands of the Government at large, supporting the Respondent’s case, save for some entries in a confidential register that went no further than the fact that the Director had been told by the Security Branch that these people were a threat to security.

138.The Respondent’s answer to this concern was then, and remains, that, save in respect of those who pose a continuing risk, watchlist records are and were at the material time kept no longer than was relevant to an event-specific threat; so that is why there exist no records throughout the whole of Government which reveal any detail of the security threat posed. Insofar as criticism has been levelled at the legalistic approach taken by the Respondent to discovery, the contention was, and remains, that, first, the Respondent was until May 2006 meeting a limited challenge, namely, the legality of the decision to refuse entry, rather than the legality of the decision to place the names of the Applicants on the watchlist; and, secondly, that the duty of candour is directed at the narrative part of a respondent’s case rather than at discovery. It is suggested that the Respondent has at all times been open about the reason for the refusal of entry and that that fact is not altered by a legalistic approach to discovery.

139.In my judgment, the point is not that simple. Hartmann J did not think it that simple and correctly so. He took the view that the absence of documents was “a very important point in this case. In fact, it goes to the heart of the Applicants’ case. ... this was 80 people being refused entry to Hong Kong, a number of whom, according to the Director, protested by adopting an uncooperative attitude as a means of protest, two of whom had to be carried to the aircraft. So nobody can pretend this was not an incident of some moment, and yet it appears that all evidence of anything going to issues of merit or otherwise was deleted.”

140.I do not in any event think that the attitude to discovery is one that is realistically susceptible to compartmentalization or isolation. The Applicants’ case, as I have explained above, is that it is but part of a telling picture.

141.The analysis of the candour issue in this case requires to be infused with sensitivity to the fact that the court’s role in judicial review is not merits-based; in other words, it is not for the courts to second-guess the merits of a decision unless it be demonstrably irrational. More particularly it is not for the courts to second-guess security decisions. The court is neither entrusted nor equipped to do so. Security analyses and determinations are necessarily reserved for those responsible for the security of the Region.

142.On the other hand, the court is entrusted to determine issues of legality of administrative decisions challenged by persons with standing to do so and it has for long been recognized that the court’s function is hampered if there is lack of cooperation and candour by the executive and that the expectation of candour is not inconsistent with the respective responsibilities of the executive and the courts. In carrying out its function where the executive prays in aid sensitive security matters, there are established rules by which that sensitivity can, in proper cases, be protected. In this particular case there have been periodic claims that certain information is protected by public interest privilege and determinations have been made in that regard. But the issue joined between the parties in this case is not whether the security grounds alleged were sufficient to warrant the action taken against the Applicants. The issue rather has always been whether there were in truth ever any security grounds at all.

143.Nor is the court’s role punitive; by which I mean that the court must take care not to confuse the line between, on the one hand, disquiet over lack of openness, where that is established, and, on the other, concluding that the essential truth has not been told. That is to say that curial irritation – and much irritation has been expressed in this Court as in the court below – must not blur a proper adjudicative assessment of the evidence.

144.The courts in this jurisdiction have the same expectation of candour in the conduct of judicial review as have the courts in other jurisdictions and the type of concern that has so exposed itself in this case is, happily, rare. The principles which emerge from the citations that follow are well-established.

145.In R v Lancashire County Council ex parte Huddleston[1], the Master of the Rolls, Sir John Donaldson, remarked that once an applicant had crossed the threshold of persuading a judge that there was enough to warrant the granting of leave to apply for judicial review the position, in terms of what was required of the decision-maker, changed. From that stage on it was the duty of the decision-maker to make to the court full and fair disclosure. The court, in exercising its function of review of administrative decisions was a public law court and the evolution of this branch of the law in the second half of the twentieth century ‘created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration.’[2] He described as discreditable a reluctance by an authority to explain fully what has occurred and why. He referred to a suggestion by counsel on behalf of the local authority that it was for the applicant to make out his case and not for the respondent authority to do it for him as to which the Master of the Rolls said:

“This, in my judgment, is only partially correct. Certainly it is for the applicant to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.”[3]

146.Whereas ‘ it is … clear,’ (Belize Alliance of Conservation Non-Governmental Organizations v The Department of the Environment and another[4]) ‘that proceedings for judicial review should not be conducted in the same manner as hard-fought commercial litigation’, there was much in the instant case which disclosed a highly legalistic approach adopted by the Respondent, an emphasis on not revealing an iota more than was demanded by the specific words of the notice of motion, as originally drawn, and by correspondence. As the Chief Judge has explained, the suggestion from the Respondent was that more was not required in terms of the original notice of motion, as if the Respondent did not all along appreciate that the Applicants’ grievance was directed at the root cause of their expulsion, a notion that was rejected by Hartmann J. In this regard Lord Denning commented in R v Barnsley Council ex parte Hook[5] that:

“It must be remembered that, in applications for certiorari, the applicant knows very little of what has happened behind the scenes. He only knows that a decision has been taken which is adverse to him, and he complains of it. His statement of grounds … should not be treated as rigidly as a pleading in an ordinary civil action. If the Divisional Court gives leave (as it did here) the practice is for the respondent to put on affidavits the full facts as known to them. The matter is then considered at large upon the affidavits. If there then appear to be other grounds on which certiorari may be granted, the court can inquire into them without being bound by the grounds stated in the original statement. The Divisional Court will always look into the substance of the matter.”

147.As we have seen from the judgment of the Chief Judge, facts emerged from the Respondent in this case only in response to pressure from the first instance judge; interlocutory applications of all kinds resisted at each turn, and reasonable requests by letter for discovery turned down. As in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited, the business of uncovering what happened, certainly in relation to what reasons were ever reduced to writing and what happened to documents has been ‘ tortuous and problematic.’[6] In that case, Laws LJ commented that although there was in judicial review proceedings no general duty of disclosure, there was:

“ …a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at. If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure.”[7]

148.The Chief Judge has referred to some of the interchange between Bench and Bar at first instance. The transcript of that particular hearing makes instructive reading, not least for those who might think that frustration at the advocacy for the Respondent was limited to this Court. It reveals that Hartmann J frequently expressed fundamental incredulity at the Respondent’s case in relation to documents, deep frustration at the piecemeal manner in which facts were put before him and concern that the Respondent was not demonstrating candour. After a lengthy exchange in which these views were repeatedly expressed, there was an adjournment during which counsel for the Respondent took instructions and then said that files in the possession of the Director were destroyed on 12 March 2003 in the course of a routine and standard document destruction procedure for those placed on the watchlist in relation to event-specific occurrences. Hardly surprisingly, the judge asked: ‘Why did we have to go through all of this in the first place then? Why not simply have said: all of this material – the watchlist works on the basis that it’s destroyed within X number of days this is what happened. It’s standard procedure … ?’

149.That, I regret to say has been the history of much of the conduct of the case on behalf on the Respondent: a marked and regular reluctance to say what had happened; or so it has been made to seem.

150.Take another example of the confusion into which the advocacy in this case threw the Court. The Chief Judge has referred to it at paragraph 111(2) above where Mr Fung said in answer to a question I posed that precise reasons for refusal of entry (as opposed to the broad reason ‘security reasons’) were forgotten. I found the answer inherently incredible and because I was disturbed by the answer I went back to it in the course of the same hearing. I told Mr Fung that what he had said was “troubling me a little”. But Mr Fung confirmed my understanding of what he had said and went on to suggest that the contention that the precise reasons had been forgotten emerged from affidavits before us. The effect of the exchange that then followed, as I read it, was that, according to Mr Fung, what was remembered was that the Applicants posed a risk to public order but why they posed such a risk, on what basis the assertion was made, could not be remembered. Apart from the stark fact that counsel’s statement did not sit at all with the evidence of Mr Tong who said that the details could not be divulged because they were covered by public interest immunity, the statement did not sit with common sense. I simply do not believe that no official is in a position, subject to the question of privilege, to say what the detailed reasons were – and indeed that is not what the officials were saying on oath. So either Mr Fung misunderstood what his client’s position was or was not expressing himself felicitously.

151.The question however, at the end of the day, is whether in the face of untested evidence on oath or affirmation that there were sound security reasons for refusing the first four Applicants entry the Court is entitled, because of the way the Respondent has chosen to run his case, to draw an inference that what has been said on oath or affirmation is untrue. It is not in my judgment a question of balancing the conduct of a respondent who has not put cards on the table against the conduct of an applicant who ought but did not seek cross‑examination or further discovery and it is not a question of penalizing an applicant for not taking steps which he or she might have taken but did not. It is a question of examining what evidence there is, absent such steps and what inferences, if any, one is entitled to draw from that evidence. If an inference adverse to a respondent may properly be drawn from a lack of candour as demonstrated by the evidence and history of proceedings, then it must be drawn and, in such circumstances, the conduct of the applicant is irrelevant.

152.I fail to see how in this case this Court can properly conclude that what has been said on behalf of the Respondent on oath and affirmation, untested by cross‑examination, is untrue. Untruth may in such a case be one reason for lack of openness. Yet in this case I can readily think of other reasons why the Respondent has played matters so close to his chest. One reason may be that he has – perhaps on advice, I know not – thought it permissible to conduct these proceedings as if they were normal adversarial proceedings, an attitude encouraged by political or security sensitivities. By saying this, I am not for one moment approving the approach adopted. Nor am I saying that the absence of cross-examination will always save a respondent. I am addressing the essential question which is whether in this particular case the court is entitled to draw the single inference against the Respondent which the Applicants would have this Court draw. To conclude in the absence of cross-examination that a person – let alone a senior official – has been deliberately untruthful on oath or affirmation on a material matter is a serious step indeed and, in my judgment, would be warranted only if the nature of the testimony itself or the surrounding circumstances as a whole forced the Court to say that that was an irresistible conclusion.

153.The key fact is that there has in this case be no cross-examination and I confess to some puzzlement at the absence of an application for it. Counsel previously acting for the Applicants explained that course by suggesting that he had read the judge below as expressing such incredulity as to render cross-examination unnecessary. I can readily understand why at one stage counsel thought so. But once the judge who had so firmly expressed incredulity, then fully accepted important assertions of fact from the Bar table – a departure, in my respectful view, from established practice and principle save where the assertion is agreed – the correct approach would have been for counsel to call for evidence in support of what had come from the Bar table and in any event to seek cross-examination of the deponents. Absent that cross-examination, what we are left with is considerable frustration at the way the case has been conducted by or on behalf of the Respondent, but in this instance that does not suffice of itself as a basis to draw an adverse inference on the substance of the case.

154.It will be obvious that, regretfully, the hearing of the appeal was not an attractive experience and the voicing of the Court’s frustration resulted in much to-ing and fro-ing by counsel, taking of instructions, piecemeal revelations, some of them contradictory, culminating in an offer to present officials for cross-examination; an offer accompanied by assurances that it was non-tactical, assurances then undermined by counsel’s submission that it would be unfortunate if the court were to make an adverse inference against the Respondent given that officials had been offered for cross-examination. It may be of course that the offer was born of a sense of frustration by the Respondent at reports of the Court’s irritation and a desire to show that there was nothing to hide. I cannot say, and it is not necessary for me to decide. The only point I wish to make is that had this case been conducted for the Respondent from the outset in the way in which governmental respondents in this jurisdiction normally conduct their side of things in judicial review applications, the unfortunate air that permeated these proceedings would have been avoided.

155.For the reason I have provided I am not in a position to draw the adverse inference which the Applicants would have the court draw from the manner in which the case has been conducted on behalf of the Respondent.

156.For the reasons given by the Chief Judge the Applicants fail on the other limbs of their appeal and I agree with the orders he proposes.

157.No challenge has been raised in these proceedings to the (suggested) practice of destruction of documents. If such a practice existed and if it persists, the result is that, whatever the motive for destruction, documentation that evidences the decision-making process is destroyed before expiry of the time for seeking leave to apply for judicial review. There would have to be compelling reasons to justify such a policy or practice, absent which the question is begged whether the policy or practice itself is lawful.

Hon Barma J :

158.I agree with the judgments of Ma CJHC and Stock VP.

1st Applicant Chu Woan Chyi acting in person

2nd Applicant Liao Hsiao Lan acting in person

3rd Applicant Lu Lih Ching acting in person

4th Applicant Chang Jenn Yeu acting in person

5th Applicant Kan Hung Cheung acting in person

6th Applicant Hong Kong Association of Falun Dafa acting in person represented by Mr Kan Hung Cheung

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

Mr Paul Shieh, SC as amicus curiae