Read the full judgment text of CACV 119/2007 on BabelCite. This Court of Appeal judgment was delivered on 4 September 2009 before Ma CJHC, Stock VP & Barma J.
Administrative law – judicial review – duty of candour – immigration – refusal of entry – security grounds – watch list – destruction of documents – discovery – public interest immunity – legitimate expectation – procedural fairness – multiple entry permits – Falun Gong. On 21 February 2003, the first four Applicants, Taiwanese residents holding valid multiple entry permits, sought entry to Hong Kong to attend a Falun Gong conference at the Sheraton Hotel, but were stopped at the airport Immigration Counter together with 76 other Falun Gong practitioners and denied entry on 'security reasons'. The Applicants had been placed on the Immigration Department Watch List as posing 'security risks to the HKSAR', and no documents, details, or sources of knowledge were disclosed in the affirmations filed on behalf of the Respondent, the Director of Immigration. Mr Tong, the Acting Secretary for Security, in a second affirmation filed 2½ years after the proceedings commenced and only after judicial prompting, stated that the Applicants were involved in 'disruptive activities' posing 'threats to the public order of Hong Kong', with further details claimed to be protected by public interest immunity. Critical documents had been destroyed on 12 March 2003 under 'standard Immigration Department practice', but this was not revealed until November 2005. The Court of Appeal held that the Respondent had breached the duty of candour owed to both the court and the Applicants in judicial review proceedings, requiring 'all cards face upwards on the table', by failing to make full and frank disclosure of the reasons for the denial of entry, the supporting material, and the circumstances of the document destruction, and by adopting an unacceptably narrow and legalistic approach to discovery, treating the proceedings as confined to the Immigration Department despite the Security Bureau's evident involvement. However, the Court declined to draw the adverse inference sought by the Applicants that no proper security reasons existed, because the sworn evidence of the senior officials had not been tested by cross-examination, the Applicants had not pursued procedural avenues (cross-examination, further discovery applications, challenges to the public interest immunity claim), and the surrounding circumstances did not force the irresistible conclusion that the testimony was deliberately untruthful. On the legitimate expectation issue, the Court held that the possession of valid multiple entry permits did not give rise to a legitimate expectation of procedural fairness or a hearing before being denied entry, given the express terms of the permits subjecting holders to immigration control under the Immigration Ordinance, Cap. 115 and the breadth of the Respondent's power to control entry. The appeal was accordingly dismissed, with no order as to costs (costs nisi), the Court remarking that the Respondent had been extremely fortunate that the Applicants had not pursued the various procedural avenues available to them.
Legal issues: Whether the Respondent breached the duty of candour in judicial review proceedings · Whether adverse inferences should be drawn against the Respondent for breach of the duty of candour · Whether the Applicants had a legitimate expectation of procedural fairness from possession of valid multiple entry permits
Outcome: Appeal dismissed. The Applicants failed to establish that the decisions to deny them entry and place them on the Watch List should be impugned. No order for costs on the appeal (costs nisi).
Cited by 5 cases · Cites 2 cases