Sun, Nov 29, 2009 - Page 13 News List

Policy of truth

A case brought by four Taiwanese against Hong Kong’s Immigration Department has set a legal precedent in the territory with implications for government accountability, but the jury is still out as to whether it will actually change the government’s behavior

By Celia Llopis-jepsen  /  STAFF REPORTER

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When lawyer Theresa Chu (朱婉琪) and three other Taiwanese filed for a judicial review in 2003 after the immigration authority blocked them from entering Hong Kong, they hoped to prove that the government had discriminated against them on the basis of religion — namely, Falun Gong, the spiritual movement banned in mainland China, but not Hong Kong.

Chu and her co-applicants were among 80 Taiwanese denied entry to Hong Kong in February 2003, when they planned to attend a Falun Gong conference. Although they held valid visas, immigration officers stopped them at Hong Kong International Airport and put them on return flights to Taiwan.

The applicants in Chu Woan-chyi and others v. Director of Immigration believe pressure from China was behind the incident. But under the “one country, two systems” model, Hong Kong’s government agencies should follow Hong Kong law, under which Falun Gong is legal — and discrimination on the basis of religion is not. The immigration authority denies the group’s religious affiliation played a role in its decision, claiming instead that the Taiwanese in question posed “security risks to the HKSAR [Hong Kong Special Administrative Region].”

Six weeks after being denied entry, Chu and three others launched a court battle that lasted six-and-a-half years. On Sept. 4, they lost the latest round and chose not to appeal, having lost hope of a victory.

But they did not lose over the question of whether immigration authorities wrongfully barred their entry. In fact, the Court of Appeal of the High Court of Hong Kong didn’t even answer that question.

Instead, the ruling focused on the legal principle known as the duty of candor.

When the legality of a government action is being tested in court, the government, under the duty of candor, has an obligation to be honest with the court and provide it with the evidence needed to scrutinize its actions. But in Chu Woan-chyi and others v. Director of Immigration, the government breached that duty, the Court of Appeal judges ruled on Sept. 4, and left the court with no evidence to reach a conclusion — something the presiding judge called “a most extraordinary state of affairs.”

The Court of Appeal’s judgment seems at first to be a scathing censure of the government’s behavior in the case — but it is a ruling with a surprise twist that has legal watchdog Hong Kong Human Rights Monitor concerned that the government has ultimately benefited from flouting its obligation.

Chu’s case started at the Court of First Instance of the High Court, directly under the Court of Appeal. To review the Immigration Department’s actions, the court needed documentation detailing why the plaintiffs were repatriated in 2003 — documents it never received. The department cited “security risks” for blocking the plaintiffs’ entry to Hong Kong, but did not provide documents supporting this assertion.

The court nevertheless ruled in the government’s favor, finding that Chu and her fellow plaintiffs failed to prove religious discrimination.

The case took a different turn at the Court of Appeal. The judges, led by Chief Judge Geoffrey Ma (馬道立), said the government had since the case’s outset repeatedly breached its legal duty of candor, which, Ma writes in the Court of Appeal’s judgment, is crucial to “good governance, and proper and transparent administration,” and is rarely violated. Examining this breach of candor therefore became their key task, the judges wrote in their ruling.

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