Appeal court criticises government secrecy

PUBLISHED : Saturday, 05 September, 2009, 12:00am
UPDATED : Saturday, 05 September, 2009, 12:00am

The Court of Appeal has criticised the government for not disclosing information backing its ban on four Falun Gong practitioners in February 2003.

It said the government had breached its duty of 'full and frank disclosure'.

Despite that, the court was unable to conclude it had acted arbitrarily or without a proper reason.

The comments came in a judgment on a judicial review launched by the Falun Gong practitioners against the Immigration Department for denying their entry to Hong Kong on 'security grounds', without saying why. The four said their names had been put on a 'watch list' and they had been banned just because of their ties to Falun Gong.

But the government countered in evidence filed by the Security Bureau's then acting secretary, Timothy Tong Hin-ming, that they had been rejected because intelligence showed they were involved with others 'in disruptive activities which pose threats to the public order in Hong Kong'. Tong also claimed that detailed reasons involving security concerns could not be disclosed as they were covered by 'public interest immunity'.

But the court found that this explanation was not given until September 2005, more than two years after the filing of the judicial review, despite the practitioners' continuous efforts since 2003 to press the government to disclose reasons.

In November 2005, a letter from the Justice Department revealed that all relevant documents containing protected information had been destroyed in March 2003, according to common practice in the Immigration Department.

In the light of what happened, the appeal court yesterday cast doubt on Tong's evidence in 2005 if he had been relying only on memory when all backup documents had been destroyed more than two years earlier. 'If all relevant documents had been destroyed since March 12, 2003, then on what did Mr Tong rely?' said Mr Justice Geoffrey Ma Tao-li, giving his judgment yesterday.

'[The Immigration Department] was quite content to leave everyone, including the court, in the dark.'

But the appeal judges - Ma, Mr Justice Frank Stock and Mr Justice Aarif Barma - decided to dismiss the appeal yesterday.

They upheld the ruling in March 2007 by Mr Justice Michael Hartmann, who heard the case in the Court of First Instance in March 2007.

Despite the government's breach of the duty to be candid, Ma said the court was unable to conclude that it had acted arbitrarily or without a proper reason.

He added that the practitioners, who had valid entry permits, were still subject to immigration control.

Hong Kong Association of Falun Dafa spokesman Kan Hung-cheung said the court's judgment was disappointing. He said the practitioners had been trying their best to reveal the truth behind the 'blacklist'. He said an appeal was being considered.

A Security Bureau spokesman said the government was studying the judgment and that it agreed that full disclosure was important.