“We look forward to using this judgment in future proceedings,” Ho said. “The judgment laid down certain benchmarks: The government should at least keep files until a case is complete [and they have] this duty of candor.”
“I hope this is intended to be a final warning to the government that next time they cannot expect to get away so easily,” he said. “But maybe this is just wishful thinking.”
Law Yuk-kai (羅沃啟), director of Hong Kong Human Rights Monitor, said the “court has adopted a very generous approach to the government.”
“It’s clear the government has breached duty of candor and destroyed papers [that could have been evidence in court], or at least lied,” Law said in a phone interview. “In those circumstances, the court is reasonably expected to rule against the government.”
Law said Ma’s reasons constituted a “very small margin” to justify ruling in the government’s favor despite a breach of candor. He had hoped to hear the Court of Final Appeal deliberate the matter: “I think we need a clarification by the higher court.”
Law, whose organization is a non-partisan, non-governmental watchdog with a focus on constitutional and international human rights law, said the government had ultimately benefited by not presenting evidence. “It is very undesirable to have a ruling in which a government party benefits from destroying evidence ... If that is allowed to happen, there may be future cases,” he said.
Law said the judgment has “positive sides” because the judge said that the government has “a responsibility to be frank to the court.” However, Law added, “I think justice could better be served by ruling against the government in this case. It would also help improve our government administration by telling the authorities that they cannot benefit from wrongdoing.”
For Chu and the other Taiwanese, the ruling was disappointing, but not surprising. Chu says Ma’s judgment in this case is misleading. His reasons for finding in the government’s favor were taken out of context, she says.
“Why didn’t we cross-examine [Tong]?” Chu explained. “The legal purpose of cross-examining is to attack the credibility of an affirmation [written statement].” But at the Court of First Instance, the judges were skeptical of Tong’s statement because the documents in the case had allegedly been destroyed years before, she said. “Our counsel said that if we applied to cross-examine, the court would turn it down and tell you, you don’t have to. In the experience of those senior barristers, the judges used very strong wording on the affirmation. It was quite sufficient.”
As for narrowing the request for government documents in 2006, Chu said Ho, Tse, Wai & Partners had “asked the government, the Department of Justice, to disclose all documents” related to the 2003 incident. “They refused, but we didn’t give up.” Instead, they tried different tactics to seek evidence.
Chu and the others have decided not to appeal to the Final Court of Appeal, where they feel there is little chance of victory. If they were to lose, the court could order them to pay the Immigration Department’s legal costs. The respondents were also discouraged by media reports that Ma may become chief justice of the Final Court of Appeal next year, when the current chief justice, Andrew Li (李國能), retires. They feel that with Ma heading the court, the chances of a different ruling would be limited.