XCHRX DHALINDER SINGH and Others v. THE GOVERNOR OF HONG KONG and Another

MP No. 269 of 1996

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The decision to deport the Applicants, and the decisions not to rescind or review that decision, were made by the Secretary for Security acting under delegated powers. It is not asserted that the Secretary for Security actually read the police records to which this summons for discovery relates. Had he done so, I would have had no hesitation in ordering the Respondents to disclose them. As part of the material which the Secretary for Security would have taken into account in deciding whether the Applicant should be deported, the records would have been relevant to the question whether the decisions which were made were within the range of reasonable options open to him, i.e. whether or not the decisions were Wednesbury unreasonable.

2. However, since it is not asserted that the Secretary for Security read the records himself, different considerations apply. He only read a summary of their contents, and the first question which arises is whether his decision was flawed on that account. Could it be said, for example, that he failed to take into account a relevant factor, namely the actual contents of the records rather than a summary of them? At the moment, the actual contents of the records seem to me to be irrelevant to that question, because the resolution of the question focuses on whether the Secretary for Security had any reason to suppose at the time that the summaries he received were either incomplete or inaccurate.

3. Mr. P.Y. Lo for the Applicants argues that natural justice required the Applicants to know what was in the police records before the Secretary for Security made his decision to deport them, because otherwise the Applicants could not make informed representations to him as to why they should be permitted to remain in Hong Kong. Again, even if that argument is correct, the Applicants, so it seems to me at the moment, do not need to see the records to make that point. The existence of the records, and the fact that the Applicants were not provided with copies of them or told of their contents, would be sufficient for that purpose.

4. However, the Secretary for Security could only go on what he was told. It is arguable that his decision, based as it was on what he was told, would have been flawed if what he had been told was untrue, i.e. that what he was told about the police records was either inaccurate or incomplete. To that extent, the lawfulness of the decision to deport the Applicants could be said to depend, in part, on whether the summary of the contents of the records was inaccurate or incomplete, and for that reason I propose to order their production.

5. Moreover, I suspect that it would be in the Respondents' interests as well for the police records to be before the Court. For example, if the Court was to decide that the decision was flawed because of the failure by the Secretary for Security to read the records himself, it would be necessary for the Court to decide whether, if he had read the records, his ultimate decision would have been any different. If his ultimate decision would have been the same, that would be a powerful reason for denying to the Applicants the relief they seek. It follows that, on that hypothesis, the actual contents of the records would be highly relevant to the ultimate issue which the Court has to decide, namely whether to quash the deportation orders made against the Applicants.

6. For these reasons, I have reached the clear conclusion that discovery of the records should be ordered, unless there were other reasons - for example, the desirability of protecting the identity of informers - which militated against their disclosure. Ms. Jenny Fung for the Respondents does not suggest that there are reasons of that kind which should prevent their disclosure. In those circumstances, disclosure is both proper and necessary, though the only order I think I need to make is an order in the terms of para. 2 of the summons filed on 8th May 1996 as amended.

(Brian Keith)

Judge of the High Court