Epoch Group Ltd V.Director of Immigration

HCAL 43/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 43 OF 2010

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Before: Hon Andrew Cheung J in Chambers

Dates of Hearing: 19 and 28 October 2010

Date of Judgment: 10 November 2010

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J U D G M E N T

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Two interlocutory applications

1.I have two applications before me.  The first application seeks inspection of documents.  The second one asks for leave to serve interrogatories.

Facts

2.The substantive application for judicial review arose out of a series of performances by a US dance troupe scheduled for late January 2010.  The performances were organised by the applicant.  The applicant is actively involved in activities of the Falun Gong movement.  There have been past litigations involving the applicant and the Director of Immigration concerning immigration matters.  On the present occasion, the Director approved the employment visa applications by all the dancers in the dance troupe to come to Hong Kong to perform.  However, the Director refused six applications by individuals who were wholly or partly responsible for production, lighting or sound.  The reasons given by the Director for the refusals were essentially the same in each case:

“Under existing policy, a person seeking to enter the Hong Kong Special Administrative Region (HKSAR) for employment should, among other things, possess a special skill, knowledge, or experience of value to and not readily available in the HKSAR. Besides, other criteria to be considered include whether the job can be filled locally and whether it is justified for the employer to bring in an expatriate staff. Having considered the information made available and all the circumstances of the case we are not satisfied that [the individual applicant’s] case meets the aforesaid criteria. [The] application is therefore refused.”

3.Despite two rounds of reconsideration, the Director maintained his refusals.

4.The applicant claims that as a result, the scheduled performances could not go ahead and they were therefore cancelled.

5.In these proceedings, the applicant challenges the Director’s refusals on a number of grounds, that is to say, irrationality; failure to have regard to relevant considerations; failure to give adequate reasons; unfair procedure and illegality – delay; legitimate expectation; and breach of article 34 of the Basic Law (“Hong Kong residents shall have freedom to engage in … cultural activities”).

Application for inspection

6.In the evidence filed in opposition to the application for judicial review, the Director has exhibited copy internal file minutes pertaining to the initial decisions to refuse the six applications as well as copy minutes relevant to the two rounds of reconsideration.  Various parts of the copy internal file minutes are redacted.  The Director claims that the blotted-out parts are irrelevant to the visa application decisions or to the issues in the proceedings and are confidential in nature.

7.That explanation is not accepted by the applicant and thus the application for inspection of the complete and unredacted versions of the relevant file minutes.

8.At the hearing on 19 October 2010, the Court, with the agreement of the parties, was supplied with unredacted copies of the relevant internal file minutes for its inspection in private.  After inspection, the Court came to the prima facie view that the blotted-out parts were relevant and the application for inspection should be permitted, subject to any claim for public interest immunity (PII) that the Director might wish to make, something which the Director had alluded to in the pre-hearing correspondence and counsel’s written submission.  Thereupon, Mr Johnny Mok SC, appearing for the Director, informed the Court that the Director would make a PII claim and asked for time to do so.  The hearing was therefore adjourned to 28 October 2010.

9.Following the procedure adopted in Chu Woan Chyi v Director of Immigration [2006] 4 HKLRD 280, paras 92 to 107 (8 May 2006) and Chu Woan Chyi v Director of Immigration HCAL 32/2003, 26 May 2006 (Hartmann J), the Director prepared a certificate signed by the Chief Secretary for Administration which was made available not only to the Court but also to the applicant, and a supplementary certificate signed by the Chief Secretary which was only made available to the Court, to make the relevant PII claim.  The justification given for the lodging of the supplementary certificate, for the eyes of the Court only, was that if the matters pertaining to the PII claim were to be set out in the open certificate, instead of the closed supplementary certificate, it would have disclosed to the applicant and to the public the very information which the Administration sought to protect by way of the claim.

10.In those circumstances, the Court read the supplementary certificate in private without intervention of counsel, but heard counsel’s submissions in Chambers (open to the public).

Court’s conclusions

11.Having done so, the Court has reached the following conclusions:

(1) The blotted-out parts in the internal file minutes are irrelevant to the issues between the parties;

(2) The claim for PII is well-founded;

(3) The lodging of a closed supplementary certificate is justified;

(4) There is no need for a special advocate to assist the Court to reach a decision on the question of PII.

12.Restrained by the nature of the respective contents of the blotted-out parts and of the supplementary certificate, the Court can only be very brief with its reasons.

13.First, in relation to relevance, the Court took the prima facie view, after reading the unredacted copies of the file minutes at the first hearing on 19 October, that the blotted-out parts were relevant as it thought that they might have influenced the decision-makers in reaching their relevant decisions.  However, the Court’s understanding of the contents of the blotted-out portions was incomplete.  It was hampered by the style in which the relevant blotted-out paragraphs were written and by the use of abbreviations unfamiliar to the Court.  To borrow the words of Hartmann J in Chu Woan Chyi (26 May 2006), para 2, the blotted-out parts were composed very much in a bureaucratic style and were clearly intended only for the eyes of those familiar with the relevant systems to which they related.  As mentioned, abbreviations were used and the Court was not privy to their meanings.  Conscious of its limited understanding of the blotted-out portions, the Court therefore took the precautionary step of not making any definite ruling on the question of relevance and inspection, but deferred its decision until after considering the PII claim.

14.The Court has since had the benefit of a satisfactory explanation provided in the supplementary certificate on all these matters.  The Court can now see that the blotted-out parts contain matters that are quite irrelevant to the issues raised and the grounds relied on in the Form 86.  In particular, the Court agrees with paragraph 13(d) of the supplementary certificate.

15.This conclusion on relevance actually renders the claim for PII unnecessary and therefore academic.  However, I should also briefly indicate my reasons for concluding that the claim for PII should, in any event, be upheld.

16.Cases where PII has been held to exist have been summarised by Matthews & Malek, Disclosure (2007 ed), para 11.95 as: national security; international relations; workings of central government and allied branches of the public service; the police and armed forces; and informants.  The book goes on to discuss the various categories of immunity.

17.Having read the supplementary certificate, it is apparent that the present claim for PII falls within one or more of those categories, and the claim has been made properly and in accordance with law.

18.Given my above views on relevance and on the merits of the PII claim, it is plain that in weighing the relevant competing public interests, the Court should uphold the PII claim.

19.Having read the supplementary certificate, one can easily understand the difficulty that the Chief Secretary faced in composing a certificate which would in any meaningful way describe the nature of the blotted-out parts in the internal file minutes without at the same time revealing the very matters in respect of which PII was claimed.  In those circumstances, the preparation of a supplementary certificate for the eyes of the Court only was justified. 

20.Given the above conclusions, the Court has further concluded that it is unnecessary to seek the assistance of a special advocate. The jurisdiction in Hong Kong, even in the absence of statutory underpinning, to ask for the assistance of a special advocate is not in doubt: Chu Woan Chyi (8 May 2006), para 100.  However, the Court should only consider adopting the procedure in the most exceptional of cases (ibid).

21.The principles for appointing a special advocate have been summarised recently by the English Court of Appeal in R (AHK) v Secretary of State for the Home Department [2009] 1 WLR 2049, paras 37 to 38.  In particular, the following principles have been mentioned:

“37 …

(iv) The principles to be borne in mind are these. (a) A special advocate should be appointed where it is just, and therefore necessary, to do so in order for the issues to be determined fairly. (b) Where the material is not to be disclosed and/or full reasons are not to be given to the claimant there are only two possibilities: (a) that the judge will determine the issues, which may include or be limited to issues of disclosure, by looking at the documents himself or herself or (b) that he or she will do so with the assistance of a special advocate. (c) The appointment of a special advocate is, for example, likely to be just where there may be significant issues and/or a significant number of documents. The position may be different where there are very few documents and the judge can readily resolve the issues simply by reading them. (d) All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant’s point of view, the difficulties facing the claimant in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State’s case and the court in arriving at a fair conclusion. (e) These principles should not be diluted on the grounds of administrative convenience.

…

(vii) If the judge decides to read the documents, in order to consider whether or not a special advocate should be appointed, the Secretary of State should not make oral or written submissions in such a case but should include a short note merely identifying the key pages or documents in order to direct the judge to the relevant material and briefly stating the grounds upon which it is said that the material should not be disclosed or reasons or further reasons should not be given. The Secretary of State should ensure that all relevant material which is available to her, whether favourable or unfavourable to the claimant, is disclosed to the judge. The judge should apply the principles in paragraph (iv) above. He or she may think it just to request the appointment of a special advocate if he or she is in doubt.

(viii) The judge should then decide how to proceed in the light of all the circumstances of the case and after hearing oral open submissions.

(ix) If the judge decides that a special advocate should be appointed he or she should request the Attorney General to appoint a special advocate to assist the court. The role of the special advocate is that identified in the cases; it is not the same as an amicus curiae.

38     … It is to avoid even a possibility that it might be thought that the judge was entering the arena on one side that it seems to us that the example to which we refer in (iv)(c) as an example of a case in which the judge might take such a course is where there are very few documents and the judge can readily resolve the issues one way or the other by reading the material and without the assistance of a special advocate.  If the judge has any doubt, he or she will no doubt conclude that fairness and justice require him or her to request a special advocate.”

See also Al Rawi v Security Service [2010] 3 WLR 1069, paras 22 to 26 (a case on the “closed material procedure”).

22.As mentioned, this is a clear case for making a PII claim.  Although quite a few documents are involved, the blotted-out portions are essentially identical in contents in relation to each of the three classes of minutes involved, that is to say, minutes pertaining to the original decisions, and minutes concerning the two rounds of reconsideration respectively.  The Court can readily resolve the issues simply by reading the minutes and the supplementary certificate and without the assistance of a special advocate.  The Court is not in doubt at all in relation to its conclusions.

23.In all those circumstances, the Court does not find it necessary to call for the assistance of a special advocate for the fair disposal of the PII claim.

24.Both common law and article 10 of the Hong Kong Bill of Rights require a fair hearing.  However, none of the authorities – whether they be the more established ones (such as the leading House of Lords case of Conway v Rimmer [1968] AC 910) or the more recent ones (such as AHK and Al Rawi) – have suggested that fair hearing requires that a special advocate be appointed in every case.  As the English Court of Appeal has pointed out in AHK, para 31, none of the cases or the statements in them go so far as to hold that the judge must never look at the documents, but must always appoint a special advocate.  On the contrary, they proceed on the basis that it is only in an exceptional case and as a last resort that a special advocate should be appointed.  As mentioned, Hartmann J has expressed the same view in Chu Woan Chyi (8 May 2006), para 100.

Court’s order re inspection

25.For these reasons, the applicant’s summons dated 14 September 2010 applying for inspection is dismissed.  I make a costs order nisi that the costs of the application be in the cause. Provisionally, I take the view that the applicant had a prima facie case to apply for inspection; the application was only defeated after the documents and the supplementary certificate were seen by the Court in private, the benefit of which the applicant did not have.  Any application to vary the costs order nisi shall be dealt with by written submissions only.

Leave to serve interrogatories

26.I now turn to the applicant’s application for leave to serve interrogatories.

27.The first set of interrogatories relate to whether the Director has any specific scheme for application for entry to Hong Kong as a member of a visiting arts performance group and any specific policy in relation to applications for entry as a member of a visiting arts performance group; and to the terms of the scheme and/or policy.

28.Mr Mok informed the Court at the hearing on 28 October 2010, on the instructions of the Director, that the Director has no such scheme or policy.  There is nothing to doubt what senior counsel has informed the Court on instructions.

29.That effectively disposes of the first set of proposed interrogatories, and Mr Philip Dykes SC, appearing for the applicant on the second day of the hearing, has not sought to suggest otherwise.

30.The second set of proposed interrogatories arose out of a short paragraph in the affirmation of Wong Yin Sang (para 11):

“While ImmD [the Immigration Department] does not maintain a specific database on arts group performance applications, in 2009, ImmD had processed over 38,000 applications for entry for employment in Hong Kong under the GEP [General Employment Policy] and the ASMTP [Admission Scheme for Mainland Talents and Professionals], out of which 1,116 applications were refused on ground of not meeting the eligibility criteria for entry for employment in Hong Kong. The refused applications also included applications made by members of arts performance groups for entry for employment.”

31.The supporting affidavit of John Clancey filed on behalf of the applicant explained (para 5):

“It appears from paragraph 11 of Mr Wong’s affirmation that the Respondent seeks to support the lawfulness of the refusals complained of by the fact that there have been previous refusals of members of arts performance groups in the year 2009. However the Respondent has provided no further information about the circumstances of those other refusals. Without that information it is impossible to know whether the fact that there were such refusals in 2009 is or is not supportive of the Respondent’s case. The Applicant’s case is inter alia that the refusals complained of in the present case make no sense whatsoever i.e. that they are irrational. It may well be that the earlier refusals in 2009 relied on by the Respondent were based on different and rational reasons which do not arise in the present case and that, contrary to the implication of paragraph 11 of Mr Wong’s affirmation, they therefore do not assist the Respondent. The second proposed interrogatory relates to this issue.”

32.Mr Mok clarified at the hearing that the intention of paragraph 11 was simply to provide the Court with the relevant background information.  It was not the intention of the Director to rely on his refusals in other applications made by members of other arts performance groups for entry for employment.  Counsel assured the Court that no reliance on the paragraph would be placed by the Director at the substantive hearing, and therefore submitted that there was no need for the service of the second set of interrogatories.

33.Mr Dykes nonetheless argued that the interrogatories were necessary to see whether the Director had treated like cases alike and whether the refusals involved in the present proceedings had been made on a discriminatory basis.

34.I do not accept the argument.  In my view, the Director’s undertaking through counsel not to place any reliance on paragraph 11 at the substantive hearing has effectively disposed of the second set of interrogatories.  As to Mr Dykes’ argument, it has to be emphasised that in judicial review proceedings, the service of interrogatories, or, for that matter, the ordering of deponents to be cross-examined, is an exception rather than the rule.  Given the duty of candour, the Director is expected to make full and frank disclosure of all materials that are relevant to the issues involved in the proceedings.  In the present case, there is no credible suggestion that the Director has disregarded that duty.  In the light of the Director’s undertaking, the continued pursuit of the interrogatories is nothing other than a “fishing” exercise.  Given the number of refusals involved, answering the proposed interrogatories would, on the face of it, impose an onerous task on the Director’s department.  Moreover, it is self-evident that the approval or refusal of an application would normally turn on its own facts.  Allowing the present application could therefore lead to further discovery, or to further interlocutory applications for discovery, of documents pertaining to these other cases, which, on the materials now before the Court and given the Director’s undertaking, really have nothing to do with the issues raised or grounds relied on in these proceedings.

Court’s order re interrogatories

35.For these reasons, the application for leave to serve interrogatories is also dismissed.

36.I make a costs order nisi that the costs of the application be paid by the applicant to the respondent in any event. Quite apart from the outcome, I note, provisionally, that despite the service of Wong Yin Sang’s affirmation in July 2010, the present application for leave to serve interrogatories was not made until 26 October 2010, and the same was not preceded by any relevant correspondence. Any application to vary the costs order nisi shall be dealt with by written submissions only.

Mr Paul Harris SC (19 October 2010) and Mr Philip Dykes SC (28 October 2010), instructed by Ho, Tse, Wai & Partners, for the applicant

Mr Johnny Mok SC, instructed by the Department of Justice, for the respondent

(I) Application by the applicant for leave to appeal dismissed. Please refer to HCAL43/2010 dated 24 November 2010 (II) Applicant's leave to appeal to Court of Appeal refused by Court of Appeal. Please refer to HCMP2475/2010 dated 5 January 2011