Over dozens of pages in the Sept. 4 judgment, Ma dissects the claims made by the government agencies involved in the case — the Immigration Department, the Security Bureau and the Department of Justice — and reveals glaring contradictions.
According to the Sept. 4 judgment, over the course of the judicial review, the defense counsel gave conflicting explanations for failing to produce evidence, variously saying or leading the court to believe: that documents related to the case could not be disclosed because of their sensitivity; that the Department of Immigration had destroyed all related documents but that other government agencies still had related documents; that the other agencies had destroyed their documents as well; or that no other agencies ever had any documents related to the case. (No government officials appeared in court. Their lawyer received instructions from them in writing and at times presented written statements from them.)
In a phone interview, Hong Kong legislator Albert Ho (何俊仁), chairman of the Democratic Party, recounted the requests made by his law firm Ho, Tse, Wai & Partners (which represented Chu and the others at the Court of First Instance) that the government submit evidence in the case — something that should not have been necessary because, as Ma notes in the Court of Appeal’s judgment, “the respondent [government] in such proceedings is expected to, and usually does, discharge its duty of candour.”
“In the Court of First Instance we pressed quite hard for discovery [compulsory disclosure of evidence], but the government did not give a candid answer. In fact, it gave inconsistent explanations,” said Ho, who himself was denied entry to Macau last December for unclear reasons when he planned to observe a demonstration there.
“Sometimes [the defense counsel] said the [evidence] was in files held by the Immigration Department and other government departments, and that this matter [the security risks posed by the plaintiffs] was known to officials at high levels,” Ho said. But when pressed for the documents, the counsel eventually “said the files had all been destroyed.”
At the last hearing at the Court of First Instance on March 8, 2007, the presiding judge expressed dismay and incredulity at the government’s failure to submit hard evidence.
“Is it credible that suddenly all the Government files and papers have been washed clean?” the judge asked.
The answer, according to the defense, was yes.
The defense counsel returned from the lunch break to say he had consulted “the highest level of those responsible,” and that all documents at all government agencies related to the incident had been destroyed four years earlier, before the case had even reached court.
Court of First Instance Judge Michael Hartmann asked: “Why did we have to go through all of this in the first place then? Why not simply have said [back then]: all of this material ... it’s destroyed.”
But, Ma notes in the Court of Appeal’s judgment, officials from the Department of Immigration and the Security Bureau submitted affidavits claiming that the four Taiwanese posed “security risks.” What did they base their knowledge on if not documents, he wonders.