KAN HUNG CHEUNG v. THE DIRECTOR OF IMMIGRATION

HCAL 74/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 74 OF 2007

______________________

______________________

______________________

J U D G M E N T

______________________

Facts

1.   There are cross applications by the parties.  The respondent applies to set aside the leave to apply for judicial review granted by Lunn J on 30 June 2007 for material non-disclosure.  The applicant applies for joinder of additional parties and various items of interlocutory relief.

2.   I will deal with the application to set aside leave for material non-disclosure first.

3.   By now, largely because of their activities and the publicity that they have generated, the spiritual movement of Falun Dafa, commonly known as Falun Gong, needs little introduction.  There is no dispute that for all relevant purposes, it is to be regarded as a religion: see Hartmann J’s interesting discussion on this point in Chu Woan Chyi v Director of Immigration, HCAL 32/2003, paras 46 to 58 (on appeal on other points).

4.  Again, it is no secret that both local and overseas Falun Gong members or practitioners have been protesting against alleged religious and/or political persecution of Falun Gong members or practitioners on the Mainland by the authorities.

5.   On 1 July 2007, Hong Kong was to celebrate the 10^th anniversary of the Mainland’s resumption of the exercise of sovereignty over Hong Kong and the establishment of the Hong Kong Special Administrative Region.  It was a great occasion for celebration in Hong Kong.  Events of celebration were organized which were to be attended by local government officials, as well as national and foreign dignitaries.  Those events were to attract massive local and overseas media attention.

6.   Understandably – at least from its perspective, the Hong Kong Association of Falun Dafa, an unincorporated society chaired by the applicant, wanted to seize upon the opportunity to hold “a series of peaceful marches and assemblies between 25 June and 1 July 2007 to protest against the persecution of Falun Gong practitioners in mainland China” (para 6 of the Form 86A).  Overseas Falun Gong practitioners were invited to join these marches and assemblies, as well as other unspecified “Falun Gong religious events” to be held at the same time (para 7 of the Form 86A).  Amongst them, Falun Gong practitioners from Taiwan were to come in hundreds.

7.   It is the case of the applicant, representing his association, that overseas Falun Gong practitioners, particularly those from Taiwan, were unlawfully prevented by the Director of Immigration from entering Hong Kong to attend those events organised by his association.  In the Form 86A, the contents of which were verified on affirmation by the applicant as true and correct, the following was claimed:

“	8.	The Hong Kong Association of Falun Dafa on 29th June, 2007 received a copy of a fax from Chu Woan Chyi, Theresa, who informed him that she was given a copy of the email message by a travel agent in Taiwan.  The email message stated that China Air Lines (“CAL”) had been informed by a Mr. Chan Man-Lun, Chief Immigration Officer, Airport Division, Hong Kong, on 25 June 2007, that Falun Gong passengers will be regarded as unwelcome in Hong Kong from 26 June 2007 to 1 July 2007.  A copy of this fax and a translation are exhibited to the Applicant’s affirmation.
	9.	This fax appears to indicate that a blanket decision has been made to prevent all identifiable Falun Gong practitioners from traveling from Taiwan to Hong Kong.”

8.   The applicant claimed that the alleged exclusion was “pure religious discrimination” (para 11 of the Form 86A), which resulted in literally hundreds of Falun Gong practitioners from Taiwan being refused entry to Hong Kong during the last week of June.  The applicant claimed that it greatly affected the intended participation of these overseas practitioners in the marches and assemblies organised by the association, and thus the marches and assemblies themselves.

9.  Having prepared the relevant papers very urgently on 29 June, the applicant went before the duty judge of the week, Lunn J, on the morning of the 30^th, on an ex parte on notice basis.  It was an ambitious application.  The applicant through counsel (Mr Paul Harris SC) applied for urgent leave to apply for judicial review of the alleged decision of the Director of Immigration to prevent the entry of Falun Gong practitioners to Hong Kong during the celebration of the 10^th anniversary and the Director’s (alleged) decision to notify airlines flying between Taiwan and Hong Kong that Falun Gong practitioners were not welcome in Hong Kong during the celebration of the 10^th anniversary.  Moreover, if leave was granted, the applicant also asked for an order (1) to dispense with the requirement to serve a notice of motion or alternatively, to abridge the time for serving such notice of motion, (2) that the Director of Immigration file evidence in opposition immediately on the same day, and (3) that a substantive hearing of the applicant’s application be held on the same day.  The applicant sought various items of permanent relief against the Director, namely, certiorari to quash the Director’s alleged decisions, a declaration that it was unlawful for the Director to refuse entry to Hong Kong to any person merely because that person was a Falun Gong petitioner, another declaration that it was unlawful for the Director to refuse entry to Hong Kong to any person merely because that person was a Falun Gong practitioner coming to Hong Kong to attend a peaceful assembly or demonstration, and an order of mandamus enjoining the Director to withdraw any letters which he had issued to airlines instructing them to prevent Falun Gong practitioners from flying to Hong Kong.

10.   The Director attended the applicant’s ex parte on notice application before Lunn J by Mr Johnny Mok SC, whom the Director briefed on an urgent basis in the evening of the 29^th.

11.   After a whole morning’s hearing, Lunn J decided to grant leave to apply for judicial review.  However, after hearing further arguments, his Lordship refused to direct the Director to file evidence on that day or to proceed with the hearing of the substantive application on that day.  The judge refused to order an expedited hearing either, observing that an application for an expedited hearing should be made to the judge in charge of the Constitutional and Administrative Law List.

12.   On 6 August 2007, the Director by summons made an application to set aside the leave granted on the ground of material non-disclosure.  By an unopposed amendment to the summons, the Director also seeks to argue that leave should be revoked on the latest test for granting leave, namely, reasonable arguability, as has been decided by the Court of Final Appeal in Peter Po Fun Chan v Winnie CW Cheung, FACV 10/2007 (30 November 2007).

General principles on material non-disclosure

13.   The law on the duty to make full and frank disclosure on making an ex parte application, whether on notice or not, and the principles governing material non-disclosure in such an application, are well established.  They have been well summarised in Hong Kong Civil Procedure 2008, vol 1, para 29/1/39.  There is no need to repeat them here, save to highlight several matters pertinent to the present case.

14.  The duty to make full and frank disclosure applies to all ex parte applications, including an application for leave to commence judicial review proceedings.  See, for instance, R v Lloyd’s of London ex parte Briggs [1993] 1 Lloyd’s Rep 176; R v Secretary of State for the Environment, ex parte the London Borough of Bexley, CO/259/94 (23 June 1994); R v Cambridgeshire County Council ex parte Darnell, CO/882/95 (12 April 1995); R v Croydon London Borough Council ex parte Gou, CO/2142/98 (21 August 1998); R (on the application of Tshikangu) v Newham London Borough Council [2001] EWHC Admin 92 (15 February 2001) and Ketowoglo v Secretary of State for the Home Department [1992] Imm AR 268.

15.   Materiality is not determined by asking if the judge had had before him the additional facts later disclosed would he have come to the same conclusion.  The right test is that the court must be fully informed of all facts that are relevant to the weighing question which the court has to make in deciding whether or not to make the order.  Or put another way, material facts are those which are material for the judge to know in dealing with the application before it.  Citibank NA v Express Ship Management Services Ltd [1987] HKLR 1184; Wardle Fabrics Ltd v G Myristes Ltd [1984] FSR 263; Re Mount Everest Investments Ltd [1988] 2 HKLR 175, 181; Mattel Inc v Tonka Corp [1991] 2 HKC 411, 430.

16.   Material facts include not only facts known to the applicant but also any additional facts which should be known if proper enquiries were made.  Ex parte Briggs, supra, at p 181.

17.   An applicant has a duty to inform the court as soon as he becomes aware that the court has been mis-informed or given incomplete information at the time of the ex parte application.  There is also a duty to disclose any material change of circumstances while the proceedings remain on an ex parte basis.  Hong Kong Civil Procedure 2008, vol 1, para 29/1/39 (page 545); Tshikangu, supra, at para 23.

18.   In the event of material non-disclosure or material misstatement of facts, the court’s approach is as follows:

“	(a)	the same principles are to be applied whether there has been material non-disclosure or material misstatements of facts and to all ex parte applications;
	(b)	even if there has been material non-disclosure or misstatement of fact, the court nevertheless has a discretion whether or not to set aside an ex parte order: this discretion will very rarely be exercised in favour of a person seeking to uphold the ex parte order in cases of deliberate non-disclosure or misstatement of material facts and with great caution even in cases where such non-disclosure or misstatement was not deliberate; and
	(c)	normally a court will not assist a party to retain an advantage to which he was not entitled.”

Re Mount Everest Investments Ltd, supra, at p 182A to C (per Barker JA).

19.   The jurisdiction to set aside an ex parte order for material non-disclosure is a disciplinary, indeed penal, jurisdiction, quite irrespective of the merits of the application.  In Tshikangu, supra, at paras 31 and 32, Stanley Burnton J explained the jurisdiction in the following terms:

“	31.	The power of the court to discharge an order giving permission to proceed, made on an application without notice to the other side, on the ground of non-disclosure, is a disciplinary, indeed penal, jurisdiction.  In Brink’s Mat v Elcombe [1988] 1 WLR 1350, Slade LJ said, at 1359:
		“	It serves the important purposes of encouraging persons who are making ex parte applications to the court diligently to observe their duty to make full disclosure of all material facts and to deter them from any failure to observe this duty, whether through deliberate lack of candour or innocent lack of due care.
			Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the court cannot be overlooked.”
	32.	If the power were in general only exercised in cases where the claimant has no arguable case, there would cease to be any real sanction against non-disclosure.  The sanction must be real, even in cases in which permission would have been given on full disclosure, in order to promote compliance with the duty of full disclosure.  In my experience, the discretion of the court in cases of non-disclosure has been at large, with the relevant considerations being the materiality of the information withheld, the reasons for non-disclosure, the nature of the case, the relevant conduct of the parties, and the consequences for the parties of the discharge of the order obtained without notice.”

20.   In ex parte Gou, supra, where the court was faced with a very serious deliberate non-disclosure, the court said that even if it could be demonstrated that it played no causative part in the decision in question, nonetheless the court itself had an interest in marking its disapproval of such serious falsehood by requiring the perpetrator of it to forfeit the protection that the court had granted him previously. 

First undisclosed matter

21.   In relation to material non-disclosure, the Director essentially relies on 2 matters.  First, it has since transpired after the hearing on 30 June 2007 that the applicant was aware of the substance of the fax/email suggesting that there was a blanket decision by the Director to prevent all identifiable Falun Gong practitioners from travelling from Taiwan to Hong Kong during the relevant period earlier than the 29 June (per para 8 of the Form 86A) or the 28^th(per his clarification through counsel to the Court at the hearing on the 30^th).

22.   What happened during the hearing on the 30^th was that Mr Mok on behalf of the Director pointed out to the judge that on the face of the copy fax exhibited to the applicant’s affirmation in support of his application, the date “26 June 2007” appeared and there were handwritten words to the effect that it was faxed over on the 26^th.  All this suggested that the applicant had received the fax on the 26^th, rather than the 29^th, as was asserted in paragraph 8 of the Form 86A.  The judge was obviously concerned about when the applicant first learned of the alleged exclusion decision, as he was asked to deal with the matter on an extremely urgent basis.  After taking specific instructions from the applicant, this is what Mr Harris told Lunn J:

“	MR HARRIS :	Now, I think I am bound to tell the court I took instructions over this break on all possible relevant matters.  And Mr Kan tells me that he had received another copy of the same document, sent to him by another Falun Gong practitioner on the 28th.  But he says that he didn’t pay any attention to it on the 28th because he was dealing with other matters but he paid attention to it when it was sent to him by Theresa Chu.  So those are my instructions and Mr Kan is, of course, willing either to make a further affirmation to clarify that if necessary or…
	COURT :	Yes.  Well, your position is that he is not resiling from what is the combined effect of the affirmation and the Form 86[A] that he received a copy on the 29th.  The rider is that he also received one on the 28th.
	MR HARRIS :	That is correct.  My learned friend invited me to amend the reference to the 29th and of course I don’t do that because that reference in the 86A is correct.”

23.   However, it has since transpired that none of this was correct.  What happened was that after the urgent hearing, those working at the Immigration Department found out that the copy fax relied on by the applicant had in fact been published in the same form in the 28June 2007 issue of the newspaper “Epoch Times”.  That newspaper is a publication widely known to be associated with, and supportive of, the Falun Gong movement.  It is distributed to the public daily from Monday to Friday extensively at various places in Hong Kong as earlier as 7:30 am in the morning.  It is published in Hong Kong by Epoch Group Limited and the applicant is a director of that company.  Indeed, the front-page headline story of the 28 June issue was the Director’s alleged exclusion of Taiwanese Falun Gong practitioners from entering Hong Kong during the relevant celebration period.  This prompted the Director to make an application to set aside the leave granted for material non-disclosure on 6 August 2007, which was supported by an affirmation deposing to these facts.  It was doubted in the affirmation whether the applicant only received copies of the fax/email on the 28^th or 29^th, or more importantly, whether he was only aware of the substance of the contents of the fax/email on as late as the 28^th or 29^th.

24.   The applicant somehow did not see fit to respond to this very serious doubt on the correctness of what he had told the Court in his verifying affirmation as well as orally through counsel, when he filed his 3^rd affirmation on 15 August 2007 in support his joinder application.

25.   It was only on 5 December 2007 when he filed his 4^th affirmation that the applicant eventually explained the apparent discrepancies.  This is how he now explains what has actually happened:

“	6.	I first learned of the existence and main contents of the EMAIL when other practitioners notified me about it on June 27, 2007, the same day that Ms. Chu Woan Chyi, Theresa and other Falun Gong practitioners held a press conference in Taiwan to reveal its contents.
	7.	Also on 27 June 2007, I learned that the Epoch Times Hong Kong was going to publish a report about the EMAIL in the June 28 2007 edition of their newspaper.  I firmly agreed with the decision to publish such a news story and hoped that the timely report about the EMAIL and this whole incident would stop the Hong Kong Immigration Department from implementing any practice of refusing Falun Gong practitioners as unwelcome during the SAR 10th anniversary celebrations.  At that time I did not think of the idea of immediately taking emergency legal action as I hoped that publicity would make such action unnecessary.
	8.	In addition, from 26 June 2007 onward I was verybusy with other urgent and weighty matters.
		…
	12.	… In view of these prior commitments it would have been impossible for me to commence the present proceedings that day [28 June 2007] as I simply did not have time.
	13.	On 28 June 2007, after the activities related to the Lawsuit against Jiang Zemin and the other two Defendants were over, I telephoned to Ms. Chu Woan Chyi, Theresa (“Ms Chu”) late in the evening to tell her something about the activities during that day and during that telephone conversation we exchanged views in regard to the EMAIL.  I learned from her that during the previous few days an increasing number of Taiwanese Falun Gong practitioners were being denied entry to Hong Kong by the Hong Kong Immigration Department.  I then realized that the situation was deteriorating with no sign of alleviation.
	14.	I also was aware by the time of this conversation that in the coming two to three days, many more Taiwanese Falun Gong practitioners who held valid Hong Kong visas were expected to come to Hong Kong to participate in relevant lawful activities that I had helped to organize.
	15.	In the light of what now appeared to be developing into a serious situation Ms Chu and I discussed the possibility of an urgent legal application to restrain the Immigration Department from refusing entry of our fellow-practitioners to the HKSAR.  Ms. Chu then reminded me that she had already sent a scanned copy of the faxed EMAIL to one of my email accounts.  I thus downloaded the scanned copy of the faxed [E]MAIL on my computer in the early morning of 29 June, 2007.
	16.	On the morning of 29 June, 2007 I telephoned to our lawyer, Mr John Clancey of Messrs Ho, Tse Wai and Partners, and briefly described the situation to him and raised the question of a court application.  As Mr Clancey had other appointments that day I was only able to meet with him in the late afternoon of 29 June 2007.  At that time I showed him the scanned copy of the faxed [E]MAIL provided to me by Ms. Chu.  After further discussions with Mr Clancey, I decided to file an urgent application for Judicial Review and an Injunction in the High Court on the morning of 30 June 2007.  My legal advisers and I spent the evening of 29 June 2007 preparing the documents needed for these proceedings so that we would be able to submit them to the Court in the morning of 30th June 2007.  On the morning of 30th June 2007 I received another copy of the EMAIL and that is the copy that was submitted to the Court.  I obtained this second copy because the first copy was difficult to read.”

26.   I have no doubt that the applicant has misled the Court in relation to when he first received a copy of the fax/email and more importantly, when he first became aware of the substance of the contents of the fax/email, and there has been non-disclosure of the true facts.  Quite plainly, based on what the applicant has now revealed, he was fully aware of the substance of the contents of the fax/email on the 27^th, if not earlier – bearing in mind the references to the date of 26 June 2007 appearing on the face of the copy fax exhibited.  According to his own admission, on the 27^th, he was aware that Epoch Times was going to publish a news story on the email in the 28^th June issue of the newspaper.  He said he “firmly agreed with the decision to publish such a news story and hoped that the timely report about the EMAIL and this whole incident would stop the Hong Kong Immigration Department from implementing any practice of refusing Falun Gong practitioners as unwelcome during the SAR 10^th anniversary celebrations” (paragraph 7 of the 4^th affirmation of the applicant).  Indeed, the whole matter became a front-page headline story of Epoch Times on the 28^th, which the applicant was fully aware of.

27.   On those facts, there was no excuse for the applicant not to reveal the true facts in the Form 86A.  Moreover, one cannot think of any plausible explanation, and none was offered, for the specific and highly misleading reference to the association (or the applicant himself) receiving a copy of the fax/email from Ms Theresa Chu on 29 June 2007 (para 8 of the Form 86A).  It is not suggested, for instance, that there was any miscommunication between client and counsel/solicitors when preparing the court papers due to the urgency of the matter.

28.   What is even more inexcusable was the failure to reveal to Lunn J the true facts when Mr Mok had on behalf of the Director pointed out during the urgent hearing on the 30^th that the copy fax exhibited to the applicant’s affirmation suggested that it had been received by the applicant or his association earlier than was claimed.  The judge was sufficiently concerned about this matter to grant Mr Harris an adjournment to take instructions on the matter.  Both the judge and counsel were fully aware of the significance of the matter – the judge, being the duty judge of the week, who did not normally deal with judicial review applications, was called upon by the applicant on an extremely urgent basis to sit on a Saturday morning to hear an ex parte on notice application for leave to apply for judicial review.  But not only that, the judge was also asked to, if leave was granted, order the Director to file evidence immediately on the same day so that a substantive hearing could be held on the same day for the purposes of granting final relief against the Director.  All this was done on the ground of extreme urgency and thus the crucial importance of when the applicant first learned of the Director’s alleged exclusion policy as evidenced by the copy fax/email.

29.   I am afraid even up to this moment, the Court has not been told by the applicant why, when given such an opportunity to offer explanation and clarification by the judge, the applicant did not inform his counsel, and through counsel the Court, that in fact he was (per his latest story) already aware of the substance of the matter on the 27^th and took part in deciding to publish the matter as a front page headline story in the June 28 issue of Epoch Times.  Rather, through counsel’s mouth, he painted to the judge the picture that he was only aware of the matter substantively in the early morning of the 29^th when he downloaded the copy email/fax attached to an email sent to him earlier by Theresa Chu, whereas in truth and in fact, all readers of the June 28 issue of Epoch Times were fully made aware of the matter on the 28^th.  Needless to say, the judge was not supplied with a copy of the June 28 issue of Epoch Times.

30.   The applicant devoted several paragraphs in his 4^th affirmation to explain that he was extremely busy and under a lot of pressure during the week leading to the 10^th anniversary and he was pre-occupied with other matters.  That may well be so.  But that does not even begin to explain why, when the judge specifically asked for clarification and afforded his counsel an adjournment to take instructions from him, he did not reveal to the Court through his counsel the truth and the whole truth, but rather chose to continue telling a highly misleading and indeed untrue story to the Court.

31.   In short, that is why I am of the view that the applicant has deliberately misled the Court and there has been deliberate non-disclosure of information.  I will presently return to this first non-disclosure to deal with the question of materiality.

Second undisclosed matter

32.   The second matter complained of by the Director in this application is the non-disclosure of the fact that many of the Falun Gong practitioners who sought permission to enter Hong Kong between 27 and 30 June 2007 were guilty of holding unlawful demonstrations, yelling, raising banners and chanting slogans in the restricted area at the arrival hall of the airport, after they had arrived Hong Kong and had been asked to undergo secondary examination.  Their acts were “extremely obstructive” to the lawful execution of the duties of the immigration officers and the normal operation of the restricted area at the arrival hall, which is an important area of the airport for security reasons.  Their conduct was such that the Immigration Department was forced to close the North Arrival Hall on more than one occasion and all arriving passengers had to be diverted to the South Arrival Hall for immigration clearance.  One group of about 60 to 70 passengers arriving in the evening of 29 June even refused to disembark from the plane and demanded to come out together in one go, despite the Immigration Department’s invitation to them to come out in batches for immigration clearance.  Their conduct caused “a serious jam” of the heavy passenger traffic at the arrival hall and “substantially inconvenienced” the other arriving passengers into Hong Kong, compromising the smooth and safe operation of the airport.  This was particularly serious when the period running up to the 10^th anniversary was, for obvious reasons, a period of high security alert.

33.   According to figures available, those taking part in the alleged demonstrations etc only accounted for a substantial portion of those Falun Gong practitioners who were refused entry to Hong Kong at the relevant period.  On the other hand, it is not disputed that many Falun Gong practitioners were indeed allowed into Hong Kong during the same period.  The Director has, in the evidence filed, pointed out that at least some of those who were allowed in were known Falun Gong members.  He strenuously denies that there was any exclusion policy as alleged or at all.  Perhaps all this goes more to the merits of the application.

34.   But the point made by the Director in the present application is that the unlawful demonstrations etc constituted material information which the applicant either knew of or ought reasonably to have found out before rushing before the Court to apply for relief on an urgent ex parte on notice basis.

35.   The applicant denies having notice of the unlawful demonstrations etc at the material time.  What he is prepared to accept, as set out in his 4^th affirmation, is as follows:

“	23.	During the period from 26 June 2007 to 1 July 2007 I only had telephone conversations with two of the Taiwanese Falun Gong practitioners who were detained in the Restricted Area of the Airport.  The first was Ms. Chu, with whom I talked over the telephone during the time she was detained in the Airport, and our discussion was concerned solely with the issue of refusal of entry to Ms Chu.  The second was a short conversation with another Taiwanese Falun Gong Practitioner who telephoned to me in an attempt to obtain legal assistance.  During neither of these telephone conversations was any mention made of any demonstrations or activities as described by Chan Man Lang.
	24.	As a matter of fact, from what I now know, given the tightly controlled environment in the Airport, coupled with the fact that limited number of persons had mobile telephones and that even some of those were confiscated, it would have been very difficult for those detained Taiwanese Falun Gong practitioners to reveal the real situation within the Restricted Area of the Airport to the outside world.  It was only after they returned to Taiwan that they were able to relate the truth about what had happened inside the Hong Kong Airport and I and others learned about it.
	25.	From 30 June 2007 onwards, I saw photos that had been taken in the Restricted Area of Hong Kong Airport.  Those photos showed that a large number of immigration officers formed a human wall to surround the Falun Gong practitioners who protested and held up banners.  From what I saw in the photos published in the mass media, it appeared to me that the Falun Gong practitioners behaved gently and that they had limited space to move.  It appeared that they were exercising their legal rights by means of a peaceful appeal against unfair treatment.”

36.   In addition to the photographs that the applicant referred to in paragraph 25 of his 4^th affirmation, it should be pointed out that in the evidence, there are materials, comprising news reports published by Epoch Times and other newspapers on 30 June and the following days, regarding the refusal by the Immigration Department of entry to Hong Kong of a substantial number of Taiwanese Falun Gong practitioners and the demonstrations etc that they held at the Hong Kong airport in response to the alleged unlawful refusal by the Hong Kong authority to their entry to Hong Kong.

37.   The applicant does not make clear in his 4^th affirmation whether he saw the photographs he referred to in paragraph 25 of his affirmation first or whether he went with counsel to court to attend the urgent application first.  Nor has he referred to his reading the newspaper reports that I have just mentioned in his affirmation.

38.  I am prepared to proceed on the basis that the applicant, as he claims, did not actually learn of the unlawful demonstrations etc at the airport, which he did not visit at the material time, until after the hearing before Lunn J on 30 June.

39.   Putting aside the obvious point that there is a continuing duty to disclose relevant information and to update the court (Tshikangu, supra, at para 23), which the applicant has obviously failed to discharge even on his own case, I am satisfied that the unlawful demonstrations etc constituted information that the applicant ought to have obtained before he went ex parte before Lunn J.

40.   In this regard, Mr Mok has referred this Court to ex parte Briggs, supra, where Leggatt LJ explained the relevant principles as follows (at p 181):

“	(3)	The applicant must make proper inquiries before making the application: see Bank Mellatt v Nikpour [1985] FSR 87.  The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.
	(4)	The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant: see, example, the examination by Scott J of the possible effect of an Anton Piller order in Columbia Picture Industries Inc v Robinson [1987] Ch 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade LJ in Bank Mellat v Nikpour [1985] FSR 87, 92-93.”

See also Ketowoglo, supra, at pp 273-274 (per Balcombe J).

41.  The unlawful demonstrations etc constituted, in my view, relevant information to the applicant’s application.  The applicant was complaining before Lunn J that there was an (alleged) exclusion policy against Falun Gong practitioners to prevent them from entering Hong Kong during the material time.  The alleged exclusion policy was strenuously denied by the Director through counsel at the hearing.  The applicant also painted a picture that the Taiwanese Falun Gong practitioners were coming to Hong Kong to join a series of “peaceful marches and assemblies”.

42.   In those circumstances, whether there existed other possible explanations for their being refused entry to Hong Kong was, put at the lowest, relevant information to be placed before the Court.  Furthermore, whether the Director could have reasonably considered what these visitors had done at the airport as indicative of whether the demonstrations and assemblies that they had intended to join in Hong Kong during the material time would remain “peaceful” if they were allowed to join them was again a relevant consideration to be put before the Court.

43.   Moreover, I am of the view that the information was material information in the sense described above.  In other words, it need not be information that would have a decisive effect on the outcome of the urgent application; so long as it was information relevant for the Court to know in dealing with the exercise of its discretion, it ought to be placed before the Court.

44.   On the basis that the applicant was not actually aware of the unlawful demonstrations etc until after he went before the judge, I am of the view that he ought to have made enquiries before he went before the judge.  In this regard, as I have said at the outset, the 30 June application was an ambitious application.  The applicant was asking the judge to deal not only with his application for leave on an urgent ex parte on notice basis, but also to dispense with the service of the notice of motion, to direct the Director to file evidence immediately on the same day, to hold the substantive hearing later on the same day and to grant him permanent relief comprising certiorari, declarations and an order of mandamus against the Director, again on the same day.

45.   It should be further noted that the applicant was not somebody who was refused entry into Hong Kong.  He was complaining about the refusal of entry to Hong Kong to the Taiwanese Falun Gong practitioners.  He relied on various articles in the Basic Law and the Hong Kong Bill of Rights to ground his substantive complaint.  Apart from article 141(4) of the Basic Law which guarantees the right of religious organisations and believers in Hong Kong to maintain and develop their relations with religious organisations and believers elsewhere, the other articles in the Basic Law and the Bill of Rights were essentially rights, the applicant said, belonging to the Taiwanese practitioners, which the Director had allegedly breached.  Nonetheless, he said he and his association had the necessary standing and interest to complain about those breaches of rights because the Taiwanese practitioners were fellow practitioners in the same movement and they were coming to Hong Kong to participate in events organised by the local association.

46.   Leaving aside whether that would constitute a good claim on the part of the applicant or his association or not, it is immediately apparent that the judge was asked to deal with a complaint not lodged by the Taiwanese practitioners, but by the applicant and his association in Hong Kong.  In my view, the applicant and his association as a supposedly interested party in the alleged breaches of rights belonging to the overseas practitioners did not stand in a better position than those overseas practitioners themselves, if they had come to court to seek relief against the alleged breaches.  If these Taiwanese practitioners had come before Lunn J to seek relief, they would have been, in my view, quite obliged to reveal to the judge the incidents that had happened at the airport after they had arrived.

47.  In my view, the applicant did not stand in a better position.  He cannot hide behind the fact that he was not personally present and therefore did not know what was happening or had happened.  He said he was interested enough in the breaches of rights allegedly belonging to the Taiwanese practitioners that he could come to court to seek relief in relation to them.  It behoves the applicant and the association he chaired to make enquiries with these overseas practitioners who had been denied entry to Hong Kong first to find out what actually had happened at the airport, before the applicant rushed to court to seek urgent relief from the duty judge.

48.   The applicant, in my view, cannot hide behind the urgency of the matter and the lack of time to make proper investigation.  Given what I have outlined in relation to the first non-disclosure, the applicant cannot be heard to say that he did not have sufficient time to contact at least some of those who had been refused entry to Hong Kong before he made the application.  According to the facts now admitted by the applicant, he was aware of the alleged exclusion policy by 27 June.  According to the unchallenged evidence from the Director, the first incident of unlawful demonstrations etc took place in the evening of 27 June 2007; the passengers involved were duly sent back to Taiwan.  Similar incidents involving other Taiwanese practitioners happened at the airport on the 28^th, 29^th and 30^th.

49.   Although everything happened very quickly, I do not believe the applicant did not have the time or means to find out what had actually happened before he went to court on an extremely urgent basis on the morning of the 30^th, if he had wanted to do so.  Mr Harris pointed out at the hearing before this Court that the association is a voluntary one; it can only do what its members are prepared to do for the association.  That may or may not be so.  However, from what has actually happened in the present case, the association appears to be well organised and fully informed of relevant development.  It has a close link to Epoch Times which is not only published in Hong Kong but also overseas, and which has substantial means of information.  As already pointed out, the facts relied on by the applicant were actually first published in the local Epoch Times on the 28^th, after receiving blessing from the applicant on the 27^th who “firmly agreed” to the publication of the relevant news story.  The applicant had exact figures on the number of Falun Gong practitioners from Taiwan arriving Hong Kong, the number of practitioners who were allowed in and the number of practitioners who were refused entry, all on a daily basis between 25 June and 29 June, as were detailed in his 2^nd affirmation filed on 4 July 2007.  The same information had been orally conveyed to Lunn J by counsel during the hearing on 30^th after the judge queried the number of Falun Gong practitioners who were allowed entry into Hong Kong during the period under consideration.  The ability of the applicant and his association to obtain information, and indeed very detailed information, at short notice, was impressive.

50.   As I said, I do not accept that the information could not have been reasonably obtained by the applicant if he had wanted to, before he went before the duty judge.  Put on a slightly different footing, in my view, in view of the materiality of the information, if the applicant really had genuine difficulties in obtaining the relevant information, he ought not to have come before the judge until he had obtained the information, or, put at the lowest, he ought to have so informed the judge when he appeared before him on the 30^th.

51.   Mr Harris has suggested rather faintly that the matter had been briefly raised by the Director before the duty judge at the urgent hearing.  I do not think it absolved the applicant from his responsibility to make disclosure.  Moreover, given the urgency of the matter, the Director simply had no time to put in detailed materials before the Court regarding the incidents, nor did counsel appearing for the Director have much material to work on at the urgent hearing, other than to make complaints to the judge about the urgent hearing itself.  I do not think the judge had any idea of the very serious nature of the various unlawful demonstrations and other incidents that had happened and were still happening at the airport at the time he heard the urgent application.

Materiality of the first non-disclosure

52.   Returning to the first non-disclosure to determine its materiality, I have no doubt that the non-disclosure/misstatement relating to the time the applicant first saw a copy of the fax/email or more importantly, the time he first learned of the substance of the matter raised in the fax/email was a material one.  As mentioned above, the test is not whether if the misstatement had not been made or the true facts supplied to the Court, the result would have been different.  Rather, the test is whether the facts not disclosed, being relevant, should have been put in the scales and made known to the judge.  On that basis, I have no doubt that the information should have been made known to Lunn J.

53.   Mr Harris argued that the matter was only material to the applicant’s application to the judge to hold a substantive hearing and grant him permanent relief on 30 June 2007, which was unsuccessful.  It was not material to the leave granted by the judge on that day.  Furthermore, he submitted that the judge was quite aware of the fact that on the applicant’s case then as revealed to the Court (which was a false one), he had sat on the copy fax/email for one day before rushing to court.  The judge took that into account in refusing to order the Director to file evidence immediately on that day and then to proceed with the substantive hearing also on that day.  Mr Harris therefore submitted that the non-disclosure/misstatement was immaterial to the ex parte leave granted by the judge, which the Director now seeks to set aside.

54.   I do not agree.  In my view, counsel’s submission is no different from asking the Court to look at the result or possible outcome to determine whether the misstatement/non-disclosure was material, which the authorities have clearly said is the wrong test to apply.  It is not the outcome or possible outcome that counts; what matters is whether the material should have been placed before the judge.  I have no doubt that it should.  Urgency was a main theme in the applicant’s last minute application before the duty judge.  It was one single application for permanent relief to be granted there and then on that day.  Getting leave was simply a preliminary step towards the goal of getting the permanent relief sought against the Director, so as to allow the Taiwanese Falun Gong practitioners to come to Hong Kong in time to join the planned parades and assemblies.  The question of when the applicant became aware of the alleged exclusion policy of the Director was of crucial importance to whether the judge should have heard the application on an urgent basis at all, what directions, if any, he should give for the filing of evidence, how much time he should afford the Director to prepare his arguments to oppose the application, and whether and if so, what, relief should be granted in favour of the applicant against the Director.  Indeed, as has been pointed out, Lunn J does not usually deal with judicial review applications, and but for the fact that the application came at the last minute on a Saturday morning, it would not have gone before his Lordship but before the judge in charge of the Constitutional and Administrative Law List or some other judge designated to deal with judicial review applications.

55.   And if I may say so with respect, Lunn J himself recognised quite fully the significance about the timing.  He specifically gave Mr Harris an adjournment to take instructions on when his client first obtained a copy of the fax/email; the obvious intention behind this was to find out when the applicant first learned of the alleged exclusion policy.  And it was only after counsel told him in the clearest possible terms, after taking instructions on “all possible relevant matters”, that his Lordship felt assured to proceed further with the hearing and make his rulings on the application.

56.   The fact that he eventually decided to grant leave only but refused to proceed with the matter further there and then on that day does not affect at all the importance of placing the true facts squarely before the judge in relation to the application that he was asked to deal with.  That the judge thought the fact that the applicant had sat on the matter for one day (as per his story then) was a reason (or one of the reasons) for refusing to proceed with the substantive hearing there and then on that day does not mean that the true facts were immaterial.  Quite the reverse, it meant, in my view, that sitting on the matter for two or three days was, a fortiori, a highly material matter.

57.   But not only that.  The non-disclosure of the fact that the applicant had in fact learned of the alleged exclusion policy a few days before led, quite undoubtedly, to the judge’s preparedness to deal with the leave application there and then on the 30^th.  If he had known about the true facts, it was most probable that his Lordship would have referred the papers to the judge in charge of the Constitutional and Administrative Law List to handle, as per the relevant practice direction, in the following week.  There was simply no urgency, given that the applicant had sat on the matter for several days, to justify his Lordship’s dealing with the matter on a Saturday morning.

58.   And if the application had been dealt with by the judge in charge of the list or some other judge designated to handle judicial review applications in the following week only, the applicant would have been obliged to place before the court further materials regarding what had happened at the airport during the relevant period in terms of the unlawful demonstrations etc that I have mentioned – irrespective of the law on disclosing materials not actually known to an applicant at the time he made his application.  By then, there would have been no excuse whatsoever for the applicant to remain unaware of those incidents, as they had been reported in the media, not least Epoch Times, on 30 June and the following days.  As it happened, Lunn J was kept in the dark about all these matters.

Conclusion on material non-disclosure

59.   In the circumstances, I am of the firm view that there has been material non-disclosure regarding when the applicant first learned of the alleged exclusion policy (via the copy fax/email or otherwise) in relation to the leave that he has obtained from Lunn J.  Likewise, there has been material non-disclosure relating to the incidents at the airport which he should have found out before rushing to the judge for relief.  Moreover, in relation to the former matter, but not the latter, I am satisfied that the misstatement/non-disclosure was deliberate.

Discretion to set aside leave

60.   The Court has a discretion to exercise in the event of material non-disclosure/misstatement, even if the same is deliberate.  As the authorities have pointed out, in the case of a deliberate misstatement/non-disclosure, the discretion will very rarely be exercised in favour of the applicant seeking to uphold the ex parte order.  And even in a case where the non-disclosure or misstatement is not deliberate, the court must exercise the discretion with “great caution”.

61.   In ex parte Darnell, supra, the misstatement there added “an urgency and an apparent element of irrationality or unfairness into the matter that, on the true facts [did] not exist”.  The court had no hesitation in pointing out that irrespective of the merits of the application for judicial review in that case, it would have set aside leave on the ground of misstatement.  Whilst that case does not lay down any general principle as such, it does illustrate that a misstatement calculated to give the subject matter of application a sense of urgency which did not exist is something that the court is quite entitled to regard as material in considering how its discretion should be exercised.

62.   The hearing before Lunn J was ex parte on notice to the Director and the Director through leading counsel did participate at the hearing and oppose the application.  But Mr Harris has not submitted, quite correctly in my view, that there should be any difference in terms of the principles applicable.  For quite plainly the Director and counsel were only notified of the urgent application at very short notices and there was, in practice, no time to prepare either evidence or legal submission in opposition to the urgent application.  Whatever counsel was able to submit before the Court on the 30^th was greatly hampered by the lack of time to prepare submission and the absence of relevant evidential materials before the Court.  Needless to say, the judge suffered from very similar handicaps.  The presence of the Director at the hearing did not release the applicant from his primary responsibility not to mislead the Court and to place all material facts and information before it.

Merits of the applicant’s case

63.   At this stage of discretion, it is legitimate and indeed correct to look at the merits of the applicant’s case, not for the purposes of deciding whether the misstatement or non-disclosure was material, but rather as a matter to take into account in determining how to exercise the Court’s discretion in terms of setting aside the ex parte order.

64.   Mr Harris has faintly suggested that in order for the Court to exercise its discretion to set aside an ex parte order for material non-disclosure, particularly in the context of a judicial review application, the respondent must be able to demonstrate to the Court that the proceedings are fundamentally misconceived or doomed to failure, in addition to there having been material non-disclosure.  In this regard, he has asked the Court to read the judgment of Cheung JA in To Kin Wah v Tuen Mun District Officer (No 2) [2003] 4 HKC 213, 218, para 25(2) in the way suggested, notwithstanding that that was not what the learned judge said.  What the judge has said is that an application to set aside should only be made in exceptional circumstances such as where the respondent can demonstrate that the proceedings are fundamentally misconceived or doomed to failure “or that there has been material non-disclosure” (my emphasis).  I see no warrant for reading “or” to mean “and”.  In my view, the position is best explained by Stanley Burnton J in Tshikangu, supra,in the passage extracted above.  But cf R v Bromsgrove District Council, ex parte Kennedy [1992] COD 129 (Popplewell J). 

65.   Given the purposes of the exercise, and without taking on myself the task of determining the substantive application, I need only outline my reasons and conclusion.

66.   In my view, the applicant’s case, insofar as it is based on articles 32, 39 and 41 of the Basic Law and articles 15, 17 and 22 of the Hong Kong Bill of Rights, is weak if not wholly unarguable.  I say so because very similar arguments have been rejected by Hartmann J in his judgment handed down in HCAL 32/2003, supra, on 23 March 2007.  In that case, several Taiwanese Falun Gong practitioners were refused entry to Hong Kong for “security” reasons.  Similar arguments were relied on by these practitioners as well as the applicant and the association (who were the 5^th and 6^th applicants in that case) in support of their challenge against the Director’s decisions.  In short, Hartmann J rejected their arguments based on those articles on the basis that the Taiwanese petitioners were not “in” the Hong Kong SAR even though they were physically inside the restricted arrival hall at the airport, so as to engage the protection afforded under the articles under discussion.  Furthermore, the relevant rights under the Bill of Rights which are based on the International Covenant on Civil and Political Rights (ICCPR), and which overlap with the relevant articles in the Basic Law, are excluded from operation in relation to immigration matters by reason of section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383).

67.   An appeal from Hartmann J’s judgment is still pending before the Court of Appeal.  However, judging from the reasons given in Hartmann J’s judgment and the existing authorities, including the Court of Appeal’s decision in Hai Ho-tak v Attorney General [1994] 2 HKLR 202, Hartmann J’s decision in Chan To Foon v Director of Immigration [2001] 3 HKLRD 109 and other authorities discussed in those decisions, I am inclined to think, without needing to come to any definite view, that Hartmann J’s interpretation of the relevant articles in the Basic Law and Bill of Rights is correct.  In those circumstances, I can at most say that the applicant’s case, insofar as it is based on the same articles in the present proceedings, is tenuous if not unarguable.  Furthermore, putting article 141(4) of the Basic Law aside for the time being, I treat Mr Harris’ argument that the applicant and his association can sue on those articles for infringement of rights or alleged rights of the overseas Falun Gong practitioners with great reservation.  As presently advised, I have difficulty in accepting that the applicant and his association have a sufficient interest or standing to sue.

68.   As for article 141(4), I find force in Mr Mok’s argument that preventing the Taiwanese Falun Gong practitioners from coming to Hong Kong to join the planned parades and assemblies during the 10^th anniversary was an one-off incident which did not infringe the right of the applicant and his association guaranteed under article 141(4) to maintain and develop their “relations” with religious organisations and believers elsewhere.  I recognise that this may well be a fact-sensitive point, but my present purpose is simply to assess the strength of the applicant’s case in the context of determining how my discretion should be exercised.  I need express no final view on the matter.

69.   Perhaps more technically, I also find force in Mr Mok’s criticisms of the relief sought in the Form 86A.  In particular, I find the wordings of the two declarations set out in paragraphs 4 and 5 of the relief sought too general in the sense that they do not arise from the facts alleged by the applicant.  For even on the applicant’s own case, the alleged exclusion policy related to a finite period of time, namely, from 26 June to 1 July 2007, as per the copy fax/email relied on by the applicant.  As a matter of fact, both before and after this period of time, many Falun Gong members, including Ms Theresa Chu, have been allowed to come to Hong Kong for various purposes.  Thus a declaration sought in terms of paragraph 4, ie that it is unlawful for the Director to refuse entry to Hong Kong to any person merely because that person is a Falun Gong practitioner, a proposition which Mr Mok on behalf of the Director has not disputed with, is not called for on the facts alleged by the applicant.

70.   Even though the declaration sought in paragraph 5 is more limited in scope, namely, that it is unlawful for the Director to refuse entry to Hong Kong to any person merely because that person is a Falun Gong practitioner coming to Hong Kong to attend a peaceful assembly or demonstration, it is still too general.  For the facts relied on are that the Director sought to exclude Taiwanese Falun Gong practitioners from entering Hong Kong from 26 June 2007 to 1 July 2007, during which the association planned to hold a series of “peaceful marches and assemblies”.  Yet the declaration sought is not restricted to overseas practitioners seeking to come to Hong Kong to attend those events during that particular period of time.

71.   The problem with limiting the declarations sought by reference to the events organised to take place in late June/early July 2007 is that it would immediately highlight the fact that one is really talking about a past and, probably, one-off, incident.  After all, the 10^th anniversary celebrations and similar anniversary celebrations only happen once every 10 years or so. And there is no evidence that on other anniversaries, Falun Gong practitioners from overseas have been refused entry to Hong Kong to attend demonstrations and marches.  That greatly affects the question of whether the court should grant declarations in a largely academic context relating to events that have happened in the past, if the proceedings are allowed to proceed to the substantive hearing stage.

72.   Insofar as Mr Harris, on behalf of his client, claims that there is an on-going effort to prevent overseas Falun Gong practitioners from coming to Hong Kong (for unlawful reasons), and declaratory relief stated in very general terms is required to protect the interest of the applicant and his association, I do not see why the relief cannot be sought in the earlier proceedings (ie HCAL 32/2003 and the resulting appeal to the Court of Appeal), where similar allegations have already been made.

73.   Insofar as article 141(4) of the Basic Law is concerned, it is difficult to see how the present wording of the declaration sought in paragraph 5 bears any relation to the actual terms of article 141(4).

74.   As for paragraph 6 of the relief sought, namely, an order of mandamus, again it relates to a past event.  The same comment can be made in relation to the certiorarisought in paragraph 3.

75.   That leaves “religious discrimination” specifically relied on as the ground on which relief is sought in the Form 86A – see bottom of page 3 of the form and paragraph 11 on page 6 of the form.  A decision to deny entry to a person on the ground of religious discrimination is liable to be struck down for being a perverse decision under common law, irrespective of any constitutional or convention rights.  Again, on the facts, I am not attracted by this ground even though I need not express any final view on the matter in light of the context of my discussion.  It is quite plain from the facts alleged by the applicant that whatever may have been the true reason(s) for the Director’s refusal of entry to Hong Kong to the hundreds of Taiwanese Falun Gong practitioners in the present case, religious discrimination or “pure religious discrimination” (paragraph 11 of the Form 86A) was not the reason.  The copy fax/email relied on by the applicant is as best as any other evidence to make good this point.  The alleged exclusion policy related to a specific period of time only, ie the period when the Hong Kong SAR was celebrating its 10^th anniversary of the establishment of the SAR.  The notable background was the association’s planned series of peaceful marches and assemblies to be held in Hong Kong during that period of time “to protest against the persecution of Falun Gong practitioners in mainland China” (paragraph 6 of the Form 86A).  And it is common ground that during that period of time both national and foreign dignitaries as well as local and overseas mass media were to be present to participate in or report on the celebrations.  As Mr Mok has put it, the marches and assemblies were quite plainly designed to exert maximum pressure on those they were targeted at and to gain maximum media and public attention.  It is in that context that one must view the alleged exclusion policy.  In my view, it is plain that whatever may have been the true reason(s) for the refusal of entry, it could not be religious discrimination as such.  The hard fact is that many Falun Gong practitioners from overseas have been allowed to come to Hong Kong both before and after the relevant period in question for various purposes.

76.   In my view, insofar as the applicant’s case is based on religious discrimination per se, it is very marginal if not wholly unarguable.

77.   Mr Harris has not, it should be noted, asked for leave to amend the wordings of paragraphs 4 and 5 of the relief in the Form 86A or suggested any alternative or more restrictive or revised wording, despite some promptings from the bench during the hearing and notwithstanding Mr Mok’s detailed criticisms of the wordings in his submission.  All he did was to make an oral application to amend the Form 86A by adding a further paragraph 5A to the relief sought, claiming a declaration that the exclusion from Hong Kong between 25 June 2007 and 1 July 2007 of various named persons was unlawful at common law and further unlawful in that it was in breach of various articles in the Basic Law and the Hong Kong Bill of Rights.  Counsel was not however prepared to withdraw the two declarations of a much wider scope sought in paragraphs 4 and 5.  Paragraph 5A does go some way towards meeting some of the criticisms made by Mr Mok relating to the declarations sought in paragraphs 4 and 5 and some of the points I have already made.  But the ground relied on in the Form 86A remains the same, namely, religious discrimination.  I have already set out my views on the ground above.  If that ground fails, there is no question of granting any declaration in terms of the proposed paragraph 5A.

78.   That, in my view, the applicant’s case is weak and marginal, if not wholly unarguable, has an important bearing in the sense that the test now for granting leave is one of reasonable arguability, rather than potential arguability, which was applied by Lunn J when he granted leave, in accordance with the general understanding of the appropriate test at the time.  In other words, the chances of the applicant’s getting leave under the new test, based on his present case as set out in the Form 86A and supporting documents, are at best marginal.  If leave is to be granted, a substantial reshaping and trimming of the matters now set out in the Form 86A would be required.

Exercise of discretion

79.   Having considered the nature and materiality of the non-disclosures, the circumstances under which the non-disclosures were made, the action or inaction on the part of the applicant after the hearing to correct the misstatement/supply further information to the court to correct/supplement the information previously supplied, the reasons, explanations and excuses (and the lack of the same) put forward by the applicant regarding the non-disclosures, the combined effect of the two non-disclosures, the nature of the applicant’s case, the strength and substance of the applicant’s case, the ground and relief actually set out and sought in the Form 86A, the probable outcome of the application if the non-disclosure had not happened or had been timeously redressed, and all other relevant circumstances in the case, I take the view that the Court’s discretion should be exercised to set aside the leave granted.  In particular, I have borne in mind the fact that in the case of a deliberate misstatement/non-disclosure, the discretion not to set aside the ex parte order should be rarely exercised, and even in the case of non-deliberate non-disclosure, the discretion not to set aside the ex parte order should only be exercised with great caution.  I also bear in mind, generally speaking, the disciplinary, indeed penal, nature of the discretion that I have to exercise.  There is a deterrent factor in the discretion (Ketowoglo, supra, at page 274).  I bear in mind the gravity of the non-disclosures, particularly in relation to the deliberate misleading of the Court regarding the time when the applicant first saw the copy fax/email or learned of the alleged exclusion policy.

Director’s alternative case based on reasonable arguability

80.   Given that conclusion of mine, it is quite unnecessary to consider Mr Mok’s alternative argument based on the new test of reasonable arguability.  In short, Mr Mok’s argument has been that irrespective of non-disclosure, the relief claimed in the Form 86A, or at least a substantial part of it, does not pass the new test of reasonable arguability.  I have already considered the merits of the applicant’s case as framed in the Form 86A.  It is not necessary to decide the same in the context of Mr Mok’s alternative argument and I do not attempt to do so here.

Applicant’s cross application

81.   In those circumstances, it is unnecessary to deal with the applicant’s cross application by summons for joinder of parties and various items of interlocutory relief.  As I am setting aside the ex parte leave, there is no question of my granting any part of the application made in the applicant’s summons, which must be dismissed.  So far as joinder of parties is concerned, if, for instance, Ms Theresa Chu still wishes to launch a challenge against the Director’s refusal to allow her to enter Hong Kong, she must make a separate application of her own for leave to apply for judicial review.  No doubt that would be an out-of-time application; however, the fact that the joinder application was taken out on 6 August 2007, within three months after Ms Chu was refused entry to Hong Kong, would be a relevant factor in considering the question of time limit if and when such an application is made.

82.   I do not wish to say anything about any fresh application by the applicant or his association for leave to apply for judicial review, save to say that conceivably, very different considerations would apply when compared with Ms Chu’s position. 

83.   As for the injunctive relief sought in the summons, all I need say is that even if leave is not set aside, I am not sure if there is sufficient material to justify the grant of interlocutory injunctive relief against the Director.  The application is simply based on what the Director has through leading counsel told Hartmann J in the earlier proceedings regarding the Director’s “normal” procedure to destroy the relevant record of a person who has been denied entry for “security” reason after a short period of time.  Mr Mok points out that what leading counsel in the earlier proceedings has told the Court was in the context of the Director not being aware of proceedings having been commenced in relation to the refusal of entry.  There is nothing to suggest that, contrary to common sense and the society’s legitimate expectation on a responsible government official, the Director would attempt to destroy relevant record and documents relating to a refusal case after being aware that the refusal decision is being challenged in court.  I find force in the argument.  As it is, it is not necessary to decide the matter. 

84.   As regards the discovery relief sought, even Mr Harris has accepted that the application is premature at this stage of the proceedings.

Outcome

85.   For the above reasons, I order that the leave to apply for judicial review in the present proceedings be set aside, and the present proceedings be dismissed.  The applicant’s cross summons is also dismissed.  I make an order nisi that the applicant pay to the respondent the costs of these proceedings, including the costs of the summonses before me.  I include all costs previously reserved as part of the costs of these proceedings and award them to the respondent.

86.   I thank counsel for their helpful assistance.