CHU WOAN CHYI AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 32/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 32 OF 2003

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R U L I N G

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1. In a judgment handed down on 8 May 2006 (‘the May judgment’), I ordered that certain documents, referred to as ‘additional documents’, together with a supplementary certificate of the Chief Secretary speaking to those additional documents, would be considered by myself in order to determine whether they were protected by public interest immunity.

2. However, without guidance, I had difficulty understanding the true nature and extent of the additional documents.  They were composed very much in a bureaucratic style and were clearly intended only for the eyes of those familiar with the relevant systems to which they related.  In light of this, I directed that there should be an ex parte hearing, held in camera, so that counsel for the Director could assist me in understanding the documents.  The applicants’ solicitors were advised of this.

3. The ex parte hearing took place at 4:45 on the afternoon of 24 May 2006.  Mr Mok SC took me through the various documents, explaining their nature and content.  In the result, I am satisfied that I now understand those documents, not only as to their individual contents but as to how they relate to each other and the degree to which they are relevant to the issues falling for determination in these judicial review proceedings.

4. Having considered the documents, I am satisfied that, by reason of their contents, they are all clearly protected by public interest immunity.

5. I would add that, having considered the documents, I can understand the difficulty that the Chief Secretary faced in composing a certificate which would in any meaningful way describe their nature without at the same time revealing the very matters in respect of which public interest immunity was claimed.  While, in my view, the procedure adopted of filing a supplementary certificate, the contents of which are withheld from the applicants, is a procedure only to be adopted in the rarest of cases, I am satisfied that it was in this instance a justified procedure.

6. On behalf of the applicants, Mr Harris expressed concern that the certificate may contain, as he put it, ‘dramatic and highly prejudicial allegations’ which, he said, would be bound to influence the court.  I can give an assurance, however, that no such allegations were contained in the certificate.

7. Indeed, I can say that neither the certificate nor the documents themselves, on their face, contain any statement of, or even indication of, the factual intelligence which resulted in the placing of the first four applicants, or any one of them, on the watchlist and the decision to refuse them permission to enter Hong Kong.

8. In the May judgment (para.98), I said the following as to what at the time I believed must be the content of the additional documents :

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As to the nature and content of the two additional documents (which I note bear the same reference number; namely, 15964), it seems to me to be obvious that they must contain the essential intelligence, or a distillation of that intelligence, which, having been assessed, has formed the basis for putting the first four applicants on the watchlist.  I do not see that any other reasonable inference can be drawn as to the contents of the documents.”

I was wrong in drawing that inference.  The documents do not contain the essential intelligence, or a distillation of that intelligence, which formed the basis for placing the first four applicants on the watchlist and thereafter refusing them permission to enter Hong Kong.

9. I would not go so far as to say that the additional documents are irrelevant to the issues that now fall for determination in the judicial review proceedings.  But their relevance, I am satisfied, is plainly limited.  In the result, on a provisional basis and without finally determining the issue, it seems to me that the applicants would not be substantially deprived of the means of properly presenting their case if they were denied access to the additional documents.

10. I have stressed the provisional nature of my finding because, in the May judgment, I said that, if I determined that the additional documents, by reason of their content, were protected by public interest immunity, an opportunity would nevertheless be given to the applicants to argue that, in weighing competing public interests, I should order disclosure in their favour.  That opportunity should not be withdrawn.  If the applicants do seek a hearing then, as I have ordered in the May judgment, an application to set the matter down must be made within 14 days of the handing down of this ruling.

11. In respect of costs, this ruling being essentially consequent upon, indeed integral to, the May judgment, the same order for costs will be made; namely, that costs be reserved.