IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 32 OF 2003
Before : Hon Hartmann J in Court
Dates of Hearing : 6 – 9 February 2006 and 24 May 2006
Date of Handing Down Ruling : 26 May 2006
R U L I N G
1. In a judgment handed down on 8 May 2006 (‘the May judgment’), I ordered that certain documents, referred to as ‘additionaldocuments’, together with a supplementary certificate of the Chief Secretary speaking to those additional documents, would be consideredby myself in order to determine whether they were protected by public interest immunity.
2. However, without guidance, I had difficulty understanding the true nature and extent of the additional documents. They were composedvery much in a bureaucratic style and were clearly intended only for the eyes of those familiar with the relevant systems to whichthey related. In light of this, I directed that there should be an ex parte hearing, held in camera, so that counsel for the Director could assist me in understanding the documents. The applicants’ solicitors were advised of this.
3. The ex parte hearing took place at 4:45 on the afternoon of 24 May 2006. Mr Mok SC took me through the various documents, explaining their natureand content. In the result, I am satisfied that I now understand those documents, not only as to their individual contents but asto how they relate to each other and the degree to which they are relevant to the issues falling for determination in these judicialreview proceedings.
4. Having considered the documents, I am satisfied that, by reason of their contents, they are all clearly protected by public interestimmunity.
5. I would add that, having considered the documents, I can understand the difficulty that the Chief Secretary faced in composing acertificate which would in any meaningful way describe their nature without at the same time revealing the very matters in respectof which public interest immunity was claimed. While, in my view, the procedure adopted of filing a supplementary certificate, thecontents of which are withheld from the applicants, is a procedure only to be adopted in the rarest of cases, I am satisfied thatit was in this instance a justified procedure.
6. On behalf of the applicants, Mr Harris expressed concern that the certificate may contain, as he put it, ‘dramatic and highly prejudicialallegations’ which, he said, would be bound to influence the court. I can give an assurance, however, that no such allegationswere contained in the certificate.
7. Indeed, I can say that neither the certificate nor the documents themselves, on their face, contain any statement of, or even indicationof, the factual intelligence which resulted in the placing of the first four applicants, or any one of them, on the watchlist andthe decision to refuse them permission to enter Hong Kong.
8. In the May judgment (para.98), I said the following as to what at the time I believed must be the content of the additional documents:
I was wrong in drawing that inference. The documents do not contain the essential intelligence, or a distillation of that intelligence,which formed the basis for placing the first four applicants on the watchlist and thereafter refusing them permission to enter HongKong.
9. I would not go so far as to say that the additional documents are irrelevant to the issues that now fall for determination in thejudicial review proceedings. But their relevance, I am satisfied, is plainly limited. In the result, on a provisional basis andwithout finally determining the issue, it seems to me that the applicants would not be substantially deprived of the means of properlypresenting their case if they were denied access to the additional documents.
10. I have stressed the provisional nature of my finding because, in the May judgment, I said that, if I determined that the additionaldocuments, by reason of their content, were protected by public interest immunity, an opportunity would nevertheless be given tothe applicants to argue that, in weighing competing public interests, I should order disclosure in their favour. That opportunityshould not be withdrawn. If the applicants do seek a hearing then, as I have ordered in the May judgment, an application to setthe matter down must be made within 14 days of the handing down of this ruling.
11. In respect of costs, this ruling being essentially consequent upon, indeed integral to, the May judgment, the same order for costswill be made; namely, that costs be reserved.
Mr Paul Harris and Mr Newman Lam, instructed by Messrs Ho, Tse, Wai & Partners, for the 1st to 6th Applicants
Mr Daniel Fung, SC and Mr Johnny Mok, SC, instructed by Department of Justice, for the Respondent