Ma also says the government repeatedly implied documents existed by declining to disclose them without any “intimation of the non-existence of relevant documents.” For example, the court had been told earlier that documents in the case were too sensitive to show the court — a claim called “public interest immunity.”
Even if the documents had been destroyed, as claimed in March 2003, there is cause for concern. In Hong Kong, the legality of a government action may be appealed in court up to three months after that action. This destruction date would mean potential court evidence was eliminated well before the deadline for seeking judicial review.
Ma’s conclusion is straightforward:
“[T]he duty of candour has been breached,” he writes. “Even to this day, over six years since the date the 4 Applicants were denied entry, it is still unclear just what was the basis for this statement [that they posed security risks], nor is it clear as to whether any documents exist to support it. It is a most extraordinary state of affairs.”
Ironically, although the judges ruled that the government breached the duty of candor, they still found in its favor. Yet in Hong Kong’s legal system, if the government breaches the duty of candor, the court is expected to rule against it because it hindered the investigation.
“Normally, where the duty of candour has been breached in such a way in relation to the disclosure and presentation of relevant facts, the consequence in judicial review proceedings [as in other proceedings] is that the court is entitled to draw adverse inferences,” Ma explains in the judgment.
But Ma declines to “draw adverse inferences” in this case. He cites two key reasons for finding in the government’s favor.
Ma says the Taiwanese applicants should have pushed harder for evidence in the case: “If the Applicants had conducted themselves differently by, for example, making the necessary discovery applications or applying for cross-examination of various deponents [the government officials who submitted written statements to the court], these judicial proceedings would have taken a much different course and, depending on what evidence emerged, the court may have been driven to arrive at a quite different result.”
The Taiwanese should have applied to cross-examine Acting Security Bureau Secretary Timothy Tong (湯顯明) at the Court of First Instance, Ma says.
Ma also says Ho, Tse, Wai & Partners should not have narrowed their request for documents from the government in July 2006 from all “relevant documents” to the documents that Tong and Commander of the Airport Division Choy Tak Po relied on to make statements to the court.
However, Ma ordered each side to pay its own court costs rather than making Chu and the other applicants pay the government’s legal fees. Ma says in the ruling that this is because of the government’s breach of candor.
In Hong Kong, which uses a common law system modeled on England’s (in which court precedent, not codified statutes, comprises the bulk of the law), Ma’s judgment could have lasting implications.
Considering the severity of the criticism, the ruling in the government’s favor is surprising, Ho said.
Ho called the ruling “disappointing,” but said the strength of the court’s position on candor in the ruling may still have potential for future judicial reviews.