If documents vanish, so does government credibility

PUBLISHED : Monday, 22 February, 2010, 12:00am
UPDATED : Monday, 22 February, 2010, 12:00am

The Hong Kong government has come under renewed and heightened criticism from the judiciary concerning its policy of destroying documents that may prove to be politically embarrassing.

Since almost all people, at some point, have to deal with a government department, the lack of a clear policy for preserving or destroying documents can affect everyone.

In 2007, Justice Michael Hartmann, hearing a judicial review of the government's decision not to allow four Falun Gong members to enter Hong Kong in 2003, was startled to learn that no papers on the case could be located. In his judgment, he said: 'The reasonable man on the street would probably have difficulty accepting that [the] government would have destroyed all of its records [on] why some 80 people were refused entry to Hong Kong.'

Hartmann nonetheless ruled against the applicants, rejecting the contention that they had been 'denied permission to enter Hong Kong solely or substantially because of their religious or spiritual beliefs'.

The case then went to the Court of Appeal and, two years later, Chief Judge Geoffrey Ma Tao-li, in his judgment, also found it 'incredible that nowhere in the whole of government would there be a written record of this'. Justice Ma noted that the government 'in such proceedings is expected to, and usually does, discharge its duty of candour', referring to the legal principle of honesty and openness. In this case, however, he concluded: 'The duty of candour has been breached.' And he warned the government: 'It is not something of which the court would want to see a repetition in future.'

Ma ultimately reached the same conclusion as Hartmann, but said the judgment could have gone the other way if the applicants had, for example, made 'the necessary discovery applications or [applied] for cross- examination of various deponents'.

The court raised the question of the veracity of statements made by senior government officials, including the then acting secretary for security, Timothy Tong Hin-ming, who is now head of the Independent Commission Against Corruption.

In an affirmation, Tong said: 'The Security Bureau and related government departments had ... come to the view, based on information and intelligence obtained, that the entry into the HKSAR of a number of individuals ... would pose security risks to the HKSAR. The intelligence obtained included intelligence to the effect that certain persons ... were involved with other individuals engaged in organising disruptive activities which pose threats to the public order in Hong Kong.'

This affirmation was provided almost two years after all government documents relating to the case had ostensibly been destroyed. So, was Tong relying purely on his own memory of what had happened? The vice-president of the Court of Appeal, Justice Frank Stock, citing the government's lawyer, Daniel Fung Wah-kin, said that 'what was remembered was that the applicants posed a risk to public order but why they posed such a risk, on what the basis was made, could not be remembered'.

He pointed out that that statement not only 'did not sit at all with the evidence of Mr Tong, who said that the details could not be divulged because they were covered by public interest immunity', but also 'did not sit with common sense'.

His concluding paragraph needs to be pondered, and not just by the government: 'If such a practice existed and if it persists, the result is that, whatever the motive for destruction, documentation that evidences the decision-making process is destroyed before expiry of the time for seeking leave to apply for judicial review. There would have to be compelling reasons to justify such a policy or practice, absent which the question is begged whether the policy or practice itself is lawful.'

That is to say, the destruction of documents may well be unlawful.

Frank Ching is a Hong Kong-based writer and commentator.