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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BETWEEN

	CHU WOAN CHYI	1st Applicant
	LIAO HSIAO LAN	2nd Applicant
	LIU LIH CHING	3rd Applicant
	CHANG JENN YEN	4th Applicant
	KAN HUNG CHEUNG	5th Applicant
	HONG KONG ASSOCIATION OF FALUN DAFA	6th Applicant
	and
	DIRECTOR OF IMMIGRATION	Respondent

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Before : Hon Hartmann J in Court

Dates of Hearing : 5-8 March 2007

Date of Handing Down Judgment : 23 March 2007

 

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J U D G M E N T

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Introduction

1. The applicants in this matter share a common bond, that bond is adherence to the spiritual movement of Falun Dafa, commonly known as Falun Gong.

2. In February 2003, the first four applicants, each in possession of valid multiple entry permits issued by the Hong Kong immigration authorities, flew to Hong Kong from Taiwan to participate in certain events with other Falun Gong followers.  All four applicants were refused permission to enter Hong Kong.  Essentially, this was because their names appeared on an immigration watchlist.  The first four applicants were held at Chek Lap Kok Airport for a number of hours before being flown back to Taiwan.  During this time, while they were informed by officers representing the Director of Immigration that they were not being permitted to enter Hong Kong because it was believed that they presented a security risk, they were not informed of the basis for that belief.

3. On behalf of the applicants it is contended that the first four applicants did not, and could not, have presented a security risk and that they were refused permission to enter Hong Kong for one reason only, because of their religious or spiritual affiliation : in short, because they were known Falun Gong adherents.

4. In Hong Kong, freedom of conscience, freedom of religious belief and freedom to maintain international relations with religious organisations and believers are constitutionally protected.  On behalf of the applicants it is contended that the first four applicants were entitled to look to the protection of those same freedoms and that the Director, acting in defiance of those freedoms, acted unlawfully.

5. It is said that the first four applicants were entitled to look to the protection of those freedoms for two reasons.  First, having landed at Chek Lap Kok and presented themselves at immigration control, they were, for the purposes of art.41 of the Basic Law, ‘in’ Hong Kong and therefore able, in accordance with law, to enjoy the same fundamental freedoms as Hong Kong residents.  Second, having come to Hong Kong to exercise their religious or spiritual beliefs, those freedoms under the Basic Law and/or the Bill of Rights were engaged.

6. In respect of the sixth applicant, the Hong Kong Association of Falun Dafa, and the fifth applicant, its Chairman, it said that, as Hong Kong residents, they were entitled, under art.141(4) of the Basic Law, to maintain and develop relations with representatives of the international Falun Gong movement.  The refusal to permit the first four applicants to enter Hong Kong to participate in events which they had organised constituted a breach by the Director of their freedoms under that article.

7. In response, on behalf of the Director, it is said that the first four applicants had no entitlement to look to the protection of fundamental freedoms under the Basic Law and/or the Bill of Rights.  It is a long-established principle of international law that sovereign states are entitled to regulate the entry of persons in the position of the first four applicants into their territory.  They may refuse them permission to enter if they consider that peace, order or good governance require.  The first four applicants had no right to enter Hong Kong except by leave and, if given leave, no right to stay longer than permitted.  As such, in seeking to enter Hong Kong, they had no kind of right or interest capable of being infringed or affected.  The Director was entitled to refuse them permission to enter Hong Kong without any form of hearing or reasons given.

8. On behalf of the Director it is said that in any event the issue of discrimination based on religious or spiritual belief does not arise in this case.  His decisions were made on grounds of security only.  It is the Director’s case that the agencies of Government responsible for gathering, analysing and weighing intelligence had concluded that the first four applicants were involved with others in organising disruptive activities and it was feared that – if the first four applicants were permitted to enter Hong Kong – such activities would pose a threat to public order.

9. There is therefore a direct conflict of fact.  For the Director it is said that the first four applicants were refused permission because they were believed at the time to pose a security threat.  For the applicants it is said that this could not have been the true reason, that the Director, representing the Executive, has done his best to conceal the true reason but, on all the evidence, it must be inferred that his decisions, solely or substantially, were based on nothing more than the religious or spiritual affiliation of the first four applicants.

10. In effecting the physical removal of the third and fourth applicants from Hong Kong; that is, in getting them onto an aircraft back to Taipei, a degree of force was used.  The third and fourth applicants say that the Director permitted or authorised ‘excessive or inappropriate’ force and in that regard acted unlawfully.  In response, on behalf of the Director, it is said that the third and fourth applicants resisted their removal and that the force employed was legitimate.  There is therefore a second direct conflict of fact.  Was the force employed lawful?

11. It is also part of the applicants’ case that the first four applicants, being in possession of valid multiple entry permits, had a legitimate expectation that, if they were not granted permission to enter Hong Kong, they would at least be entitled to the protection of procedural fairness.  As such, they would be entitled to know more fully why they had been refused permission to enter Hong Kong, they would be entitled to make representations, no doubt in this instance as to why they presented no security risk, and to have those representations considered.  It is their case that such procedural fairness was denied to them.

12. On behalf of the Director, the response is made that the first four applicants, simply by reason of their holding multiple entry permits, had no legitimate expectation of the kind asserted.  The Director had no obligation in law to give reasons why the first four applicants were denied permission to enter Hong Kong and no obligation to afford them the procedural benefits asserted.

13. However, it is said that the Director’s officers did in fact afford, or attempt to afford, the first four applicants a measure of procedural fairness.  The third and fourth applicants were interviewed but no exceptional reason which would entitle them to come into Hong Kong was identified.  To the contrary, the interview records reveal that the third and fourth applicants, who are husband and wife, were evasive and contradictory.  In respect of the first and second applicants, it is said that interviews were not, in any practical sense, possible.  This was because the first and second applicants joined themselves with a group of more than 20 other Falun Gong followers whose names had also been on the watchlist, the group as a whole refusing to co-operate with the Director’s officers.

The decisions challenged

14. Three ‘decisions’ of the Director have been challenged by the applicants.  They are :

(i)   The decision taken to place and maintain the first four applicants on the watchlist on the ground that they posed a threat to the security of Hong Kong.

(ii)   The decision taken to refuse the first four applicants permission to enter Hong Kong.

(iii)   The decision to permit or authorise what is described as ‘inappropriate and/or excessive’ force to put the third and fourth applicants on an aircraft back to Taipei.

Relief sought

15. The applicants have sought the following relief :

(i)   A declaration that the decision to place the names of the first four applicants on the watchlist as a threat to the security of Hong Kong was unlawful and/or not open to a reasonable decision-maker.

(ii)   A declaration that the decision to refuse the first four applicants permission to enter (or remain in) Hong Kong was unlawful.

(iii)   An order of certiorari to quash these two decisions.

(iv)   A declaration that the decision to remove the third and fourth applicants in the manner in which they were removed was unlawful because of the use of inappropriate and/or excessive force.

(v)   An order for damages.

The fundamental challenge – discrimination on the basis of religious or spiritual belief

16. The applicants have raised 14 grounds of challenge to the first two decisions of the Director; that is, the decision to place and maintain the first four applicants on the watchlist and the decision to refuse them permission to enter Hong Kong.  However, fundamental to all of these challenges, directly or indirectly, is the contention that, even if the issue of security was employed, the decisions were in truth and reality based solely or substantially on the religious or spiritual beliefs of the first four applicants; that is, on nothing, or little more than, their adherence to the Falun Gong movement and their intention to participate in the experience sharing conference.  On that basis, the applicants contend that the decisions were unlawful on at least four grounds :

17. First, the Director was under a duty to exercise his discretion to promote the policy and objects of the Immigration Ordinance, Cap.115.  He was not permitted to use that discretion to frustrate them and, if he did so, he acted outside of his powers.  In the present case, basing his decisions on the applicants’ religious or spiritual beliefs, frustrated the policy and objects of the Ordinance. 

18. Second, the Director’s decisions were in breach of constitutionally protected rights of freedom of conscience and religious belief, those protected rights being available to all of the applicants, even the first four applicants who admittedly had no right to enter and reside in Hong Kong. 

19. Third, the decisions breached the constitutionally protected right of the sixth applicant, the Hong Kong Association of Falun Dafa, and the fifth applicant, its chairman, to maintain and develop relations with religious organisations and believers elsewhere. 

20. Fourth, the decisions were unreasonable in the Wednesbury sense in that, in concluding that the first four applicants should be refused permission to enter Hong Kong, the Director failed to take into account matters which he was obliged to take into account, more particularly, that the applicants were all of good character, held valid multiple entry permits, return air tickets and were members of a movement with a well-established record of holding only peaceful and orderly demonstrations.

21. In respect of the assertion that the Director’s decisions were unreasonable, it is integral to the applicants’ case that, if the first four applicants were, in fact, identified as presenting some sought of alleged security risk, intelligence to that effect must have come from the Mainland authorities.  The Mainland authorities, it was said, keep a ‘blacklist’ of Falun Gong practitioners and that blacklist must have been the basis of the Director’s decisions.  It is submitted that, if intelligence from the Mainland was relied upon, the Director was obliged to consider it in the context of the following matters :

(a)   That the Mainland authorities, unlike the authorities in Hong Kong, had criminalised the practice of Falun Gong and mounted an extensive campaign to prevent it from being practiced.

(b)   That the law of the Mainland does not in practice recognise a general right to demonstrate such as is recognised by the law of Hong Kong.

(c)   That a central feature of the campaign against Falun Gong by the Mainland authorities has been the accusation that Falun Gong disrupts public order.  However, what is understood by the Mainland authorities as disrupting public order is not the same thing as is understood in Hong Kong.

(d)   That Falun Gong practitioners have a well-established record of holding peaceful and orderly demonstrations.

22. It is contended that, in light of these matters, any suggestion by the Mainland authorities that the first four applicants were security risks had to be treated by a decision-maker ‘with scepticism’ and ‘could not form the basis for a decision to refuse the applicants entry to Hong Kong on public order related grounds without first making further enquiries of the applicants’.

The Director’s response

23. Leaving aside issues going to jurisdiction, it is the Director’s contention that religious or spiritual adherence simpliciter never formed any sort of basis for his decisions to place the first four applicants on the watchlist and then to refuse them permission to enter Hong Kong.  Those decisions were made on the basis that the first four applicants, their cases being considered separately, were believed – on that occasion – to pose a security risk to Hong Kong which was not outweighed by any compelling personal or compassionate grounds favouring their entry.  Giving them permission to enter Hong Kong would therefore have been contrary to the public interest.

24. In an affirmation dated 23 September 2005, Mr Choy Tak Po, a Senior Principal Immigration Officer who was Commander of the Airport Division on the night of 21 February 2003, said :

“To address a concern raised by the Court as to whether it was revealed in the watchlist that the 1^st to 4^th Applicants were Falun Gong practitioners, I can confirm that this was not the case.  Indeed, to the best of my knowledge and belief, membership of or association with the Falun Gong does not of itself give rise to security concerns.  Further, I can say from my experience and knowledge of the watchlist that membership of or association with the Falun Gong is not a reason for placing any individual on the watchlist or for excluding her from entering the HKSAR.  This is amply borne out by the Applicants’ own evidence showing that:-

(a)   The Falun Gong experience sharing conference took place as planned by its organizers on 22^nd February 2003 in Hong Kong;

(b)   It was attended by some 800 participants;

(c)   Of those 800 participants, approximately 600 were Falun Gong practitioners who were admitted into the HKSAR for such purpose.”

25. As to why it was that the first four applicants were believed to present a security concern, in an affirmation made in September 2005, Mr Tong Hin Ming, who at the time was Acting Permanent Secretary for Security, said that :

“… the Security Bureau and related Government departments had, in the case of the 1^st to 4^th Applicants, come to the view, based on information and intelligence obtained, that the entry into the HKSAR of a number of individuals, including the 1^st -4^th Applicants, would pose security risks to the HKSAR.  The intelligence obtained included intelligence to the effect that certain persons, including the 1^st-4^th Applicants, were involved with some other individuals engaged in organizing disruptive activities which posed threats to the public order in Hong Kong.”

26. As to the alleged existence of a blacklist given to the Hong Kong Government by the Mainland authorities, although there was no affirmation or affidavit evidence touching the point, Mr Daniel Fung SC, leading counsel for the Director, said that the Director was not obliged to chase down every hare let loose by the applicants.  As it was, however, he said that the Director denied the existence, past or present, of a blacklist of the kind alleged.

The issues

27. In light of this, it seems to me that the following issues arise in this application :

(i)   In terms of the Basic Law and/or the Bill of Rights is the Falun Gong movement a religion?

(ii)   Were the first four applicants, when they sought permission to enter Hong Kong, entitled to the protection of the fundamental freedoms, such as freedom of religion, enjoyed by Hong Kong residents under the Basic Law and/or the Bill of Rights?

(iii)   If they were entitled to the protection of those freedoms, were they, in fact, denied permission to enter Hong Kong solely or substantially because of their religious or spiritual beliefs; that is, because of their Falun Gong following?

(iv)   Were the decisions to place the first four applicants on the watchlist and to refuse them permission to enter Hong Kong Wednesbury unreasonable?

(v)   If the first four applicants were denied permission to land solely or substantially because of their religious or spiritual affiliation, did that constitute a breach of the freedoms guaranteed to the fifth and sixth applicants under art.141(4) of the Basic Law?

(vi)   By their possession of valid multiple entry permits, did the first four applicants have a legitimate expectation that, if denied entry, they would be accorded sufficient procedural fairness to enable them to know why that decision was made and to make representations?  If so, were the first four applicants denied that procedural fairness?

(vii)   Was the use of force employed to remove the third and fourth applicants from Hong Kong unlawful?

Putting the issues more fully into context

28. In February 2003, the Hong Kong Association of Falun Dafa, under the Chairmanship of the fifth applicant, organised a one-day conference.  The purpose of the conference – described as an ‘experience sharing conference’ – was to promote the Falun Gong movement by allowing disciples of the movement to share their spiritual experiences.  As such, several hundred followers of the movement were expected to travel to Hong Kong from other countries to participate in the conference.

29. In 1999, the Falun Gong movement was declared to be an illegal cult in the Mainland.  In the result, many followers of the movement in the Mainland were apprehended, tried and sentenced.  Falun Gong followers outside of the Mainland have condemned the treatment of these people as persecution.  However, although declared to be an illegal cult in the Mainland, the Falun Gong movement has not been declared illegal in Hong Kong.

30. In addition to organising the conference, the Hong Kong Association of Falun Dafa organised a demonstration against what it condemned as the persecution of Falun Gong followers in the Mainland.  The police were notified of an intended public procession pursuant to the requirements of s.13A of the Public Order Ordinance, Cap.245, and apparently raised no objection.

31. On 21 February 2003, the day before the conference was due to commence, the first four applicants flew to Hong Kong from Taipei with the intention of participating in the conference and, it seems, the following demonstration.  They were all Taiwanese citizens.  They arrived at different times.  The third and fourth applicants, a married couple, arrived at about 6 p.m.  The first and second applicants arrived several hours later at around 9.45 p.m. 

32. In order to visit Hong Kong, each of the first four applicants required to be in possession of a multiple entry permit.  A multiple entry permit has been described as being ‘similar’ to a visa.  It is valid for one or three years.  Each of the four applicants possessed a valid permit.

33. All four applicants had been issued their permits well before their intended visits to Hong Kong in February 2003.  The permits had been issued to the first applicant in August 2000 and to the second, third and fourth applicants in January 2001.

34. Each of the first four applicants had previously used their permits to visit Hong Kong and had been given permission to enter.  It is noted, however, that the first and third applicants had each on an earlier occasion been refused permission to enter.  For the first applicant this had been on 30 June 2002, for the third applicant it had been on 2 May 2001.  The evidence indicates that these two refusals had also been on security grounds, on both occasions the applicants seeking to enter Hong Kong in respect of Falun Gong matters. 

35. The case of the first applicant is illustrative.  The first applicant is a corporate lawyer.  The evidence indicates that, when coming to Hong Kong purely on business matters, she had been granted entry.  However, when coming to Hong Kong in respect of Falun Gong matters she had twice been refused permission to enter on security grounds.

36. Multiple entry permits contain standard conditions, described as ‘rules’.  They include rules 2 and 5 which read :

“2.   The holder of this permit is subject to immigration control under the provisions of the Immigration Ordinance, Cap.115, Laws of Hong Kong.

5.   The permit is the property of the Government of the Hong Kong Special Administrative Region.  The Immigration Department, the Government of the Hong Kong Special Administrative Region may retrieve and cancel this permit at any time.”

37. On behalf of the Director, it is said that these rules make it plain that holders of multiple entry permits have no right or legitimate expectation, by that fact alone, to enter Hong Kong.  As the rules make clear, they remain subject to immigration control as provided for in the Immigration Ordinance.  S.7 of the Immigration Ordinance directs that persons in the position of the first four applicants may not land in Hong Kong without the permission of an immigration officer or an immigration assistance.  S.11 states that such permission may be refused.

38. As I have said earlier, when each of the first four applicants presented themselves at the airport immigration control, they were not permitted to pass through.  This was because their names appeared on an immigration watchlist.  As to the purpose of the watchlist, in his affirmation (referred to in para.25 above), Mr Tong Hin Ming explained that :

“There is a practical need for and a public duty on the part of the HKSAR Government to keep away individuals whose presence in Hong Kong poses, or may pose, a risk to the security, public order or public safety, or the peace and stability of the HKSAR, or whose entry into the HKSAR is not in the public interest.  I understand that responsible governments all over the world adopt similar policies and practices in exercising immigration control.  The watchlist is a means to enable such functions and duties to be carried out.”

As to the nature of the watchlist, Mr Tong said :

“The watchlist is a short-hand description of a system of information gathering, preparation and display related to the carrying out of the functions and duties referred to above.  Where the matter concerns one of security, the Security Bureau and other related Government departments will be in possession of confidential and sensitive information and intelligence concerning the person in question.  …

After such information is assessed, and a decision is made to place the person’s name on the watchlist, the computer system at the Immigration Department will show the name of the person put on the watchlist and the general reason for it.  In the case of security risks, the information which is available to the front line immigration officers sitting at the point of entry will merely show that the concern is one of security without further elaboration….”

39. Mr Tong said that concerns which may be classified as ‘security concerns’ would include the following :

“(a) The person’s entry is not conductive to the public good.

 (b) The person’s presence in Hong Kong poses, or may pose, a risk to the security, public order, or public safety, or the peace and stability of the HKSAR.”

40. With their names appearing on the watchlist, the first four applicants were escorted through to an area called the ‘secondary examination lounge’.  When in this area, they were informed that they were not being permitted to enter Hong Kong because of security concerns.  The first applicant, together with 20 or more others whose names had also been posted on the watchlist, sought more detailed reasons.  One exchange was recorded.  In part, in translation, it reads :

“First Applicant:     Who told you to say that we are not allowed to enter due to a security reason?  Your supervisor? 

Officer:                   This is the decision of the HKSAR Government.

First Applicant:       Are you saying it is not convenient to tell us which department made this decision?

Officer:                   I am here speaking as a representative of the HKSAR Government, all right?

First Applicant:       We want to know whether there is any evidence for security reasons.

Officer:                   In relation to this question, here and now I cannot provide an answer to you.”

41. At about 7 p.m., the third and fourth applicants were formally refused permission to land in Hong Kong and near 9 p.m. were put on an aircraft back to Taipei.  Force was used to place them on the aircraft, both being placed in a restraining device called a ‘humane blanket wrap’.  The two applicants suffered minor injuries, red marks and the like. 

42. A few hours later, in the early hours of the morning of 22 February 2003, the first and second applicants were formally refused permission to land in Hong Kong and at around 8.30 a.m. were put on an aircraft back to Taipei.  

43. I am told that the first four applicants were among some 80 Falun Gong adherents, including one or more intended speakers, who were refused permission to enter.  Almost all were from Taiwan.  This number represented about 10% of those expected to attend the conference.  The conference went ahead and was followed by the demonstration which, I understand, went off without incident.

44. On behalf of the Director, it is emphasised that about 600 Falun Gong adherents were given permission to enter Hong Kong, these 600 joining with about 200 local adherents so that the conference was still able to go ahead with some 800 participants.  That, it is said, is clear evidence that the Director had no policy of refusing entry to persons merely because they were Falun Gong.

45. In answer, the applicants contend that those who were granted permission to enter were not identified as Falun Gong followers.  If they had been identified, they too would have been denied entry.  Either that or the names of those others did not appear on the blacklist compiled by the Mainland authorities which must have been made known to the Hong Kong Government and which must have been used in order to compile the immigration watchlist.

The first issue : is Falun Gong a religion for the purposes of the Basic Law and/or the Bill of Rights?

46. It is fundamental to the case of the first four applicants that the actions of the Director refusing them permission to enter Hong Kong denied them the constitutional protection of freedom of conscience and religious belief.

47. Art.15 of the Bill of Rights states :

“(1)   Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

(2)   ...

(3)   Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

Art.32 of the Basic Law, to the same effect, directs that :

“(1)     Hong Kong residents shall have freedom of conscience.

(2)       Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public.”

48. It is equally fundamental to the case of the fifth and sixth applicants that the actions of the Director undermined their constitutional freedom, as Hong Kong residents, to maintain international relations with co-religionists.  In this regard, art.141 of the Basic Law states :

“(1)    The Government of the Hong Kong Special Administrative Region shall not restrict the freedom of religious belief, interfere in the internal affairs of religious organizations or restrict religious activities which do not contravene the laws of the Region.

(2)    …

(3)    ...

(4)       Religious organizations and believers in the Hong Kong Special Administrative Region may maintain and develop their relations with religious organizations and believers elsewhere.” 

49. On behalf of the Director, Mr Fung did not concede that the Falun Gong movement should be recognised as a religion or a form of religious belief.  However, he chose not to argue the point.  This was on the basis, as I understand it, that the issue in any event was not relevant to the Director’s case, his case being that his actions were based on matters of security only.

50. In the result, although Mr Paul Harris SC, leading counsel for the applicants, contended that the Falun Gong movement must be recognised as a religion or form of religious belief, he did not submit argument either.

51. In my judgment, however, the issue cannot be by-passed.  A determination must be made.

52. At the outset, it must be observed that practitioners of Falun Gong, while they describe it as a spiritual movement, do not classify it as a ‘religion’.  The Falun Gong movement is founded in large measure on Buddhist teachings but incorporates elements of Daoism.  There is no requirement to believe in an identified diety.  But Falun Gong practitioners do accept the supernatural; that is, a reality of the spirit that extends beyond the perception of our physical senses.  By means of mediation and exercises they seek to place themselves in harmony with this transcendent reality.  Falun Gong practitioners see their movement as entirely benevolent.  They adhere to a moral code, they say, which ensures a life of spiritual purpose.

53. In considering the concepts of ‘religious belief’ and ‘religious activities’ under the Basic Law, a technical, narrow or rigid approach must be avoided.  The concepts are to be given a generous interpretation in order to ensure the full measure of the freedoms contained in those concepts : see Ng Ka Ling and Others v. Director of Immigration (1999) 2 HKCFAR 4, at p.28 onwards.

54. In Adelaide Company of Jehovah’s Witnesses Inc v. The Commonwealth (1943) 67 CLR 116, Lathan CJ observed that —

“It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religious which exist, or have existed, in the world.”

55. A religion, I think, needs to be something more than a set of shared ethical beliefs.  But it does not, in my view, certainly not in the Asian context, demand a belief in the existence of God or any intelligent first cause.  Among clearly recognised religious which do not teach what would generally be considered a belief in the existence of God are Buddhism and Taoism.

56. For present purposes, it is sufficient, I think, to adopt the guidelines of the High Court of Australia in Church of the New Faith v. Commissioner of Pay-Roll (1982) 154 CLR 120, per Wilson and Deane JJ at p.174 :

“One of the more important indicia of ‘a religion’ is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that really extends beyond that which is capable of perception by the senses.  If that be absent, it is unlikely that one has ‘a religion’.  Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural.  A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance.  A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups.”

57. As I have said, Falun Gong adherents, who certainly form an identifiable group, do accept a reality of the spirit that extends beyond the perception of our physical senses.  They acknowledge the supernatural; that is, a dimension of the spirit that is above and/or outside of nature.  They seek to place themselves in harmony with this reality.  Importantly, they bind themselves to a code of ethical and moral behaviour which is integral to their spiritual aspirations.  As such, I am satisfied that, under the Basic Law; that is, as a constitutionally protected freedom, the Falun Gong movement is to be recognised as a religious movement, its beliefs being religious beliefs.

58. The Falun Gong movement, as I have said, does not recognise itself as a religion.  But, as important as that may be as an indicator, it is not decisive.  The real question is whether, however it wishes to see itself in comparative terms, it is, by reason of its belief structure, entitled to be recognised as a religion under the Basic Law.  As I have said, I am satisfied it is.

The second issue : were the first four applicants, when they sought permission to enter Hong Kong, entitled to the protection of the fundamental freedoms contained in the Basic Law and/or the Bill of Rights?

59. Schedule 8 to the Interpretation and General Clauses Ordinance, Cap.1, directs that a citizen of the People’s Republic of China is not to be referred to as an alien.  Taiwan is, in terms of the Ordinance, part of the People’s Republic of China.  As such, citizens of Taiwan are not aliens.

60. In terms of art.154(3) of the Basic Law, Hong Kong is delegated the power to apply immigration controls as if it is a sovereign state :

“The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.”

61. The immigration controls exercised by Hong Kong result in citizens of Taiwan, by that fact alone, having no right to enter Hong Kong except by leave and, if given leave to enter for a limited period, having no right to stay longer than that limited period.  Accordingly, although, as citizens of Taiwan, they are not classified as aliens, the first four applicants found themselves, in respect of Hong Kong immigration control, in the same position as aliens.

62. In his judgment in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149, Lord Denning MR defined the position in law of an alien seeking to enter the United Kingdom :

“He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time.  If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time.  Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay.  He can be refused without reasons given and without a hearing.  Once his time has expired, he has to go.”

63. For the applicants, Mr Harris has submitted that Schmidt is now ‘20 years out of date’ and no longer good law.  I disagree.  Whatever the position may now be in England, I am satisfied that, as a statement of basic principal, it remains good law in Hong Kong.

64. In Robert Flickinger v. Director of Immigration [1988] 1 HKLR 81, the appellant, a citizen of the United States of America with no right to land in Hong Kong, was given permission to stay for a limited period of time.  His application to extend that period was refused.  The Director chose to give reasons for the refusal.  Those reasons were challenged by way of judicial review.  On appeal, it was held that the court was entitled to review the decision and if, for example, it was Wednesbury unreasonable, it would be quashed.  But in giving the judgment of the Court of Appeal, Clough JA specifically adopted Lord Denning’s dicta in Schmidt.  He said that, in exercising his discretionary powers under the Immigration Ordinance —

“… the Director may make such inquiries as he thinks fit.  The applicant had no right, nor in the circumstances of this case did he have any legitimate expectation, to be told about the results of the Director’s inquiries or to be allowed to rebut the information obtained by the Director concerning the applicant.”

65. In a later judgment of our Court of Appeal in Ho Ming Sai and Others v. Director of Immigration [1994] 1 HKLR 21, Godfrey J (as he then was) said that the Director, in deciding whether to exercise his discretion under the Immigration Ordinance to allow an illegal immigrant to remain in Hong Kong, was fulfilling an administrative function not one that was judicial in character.  As such, the exercise of discretion had to be lawful and was subject to judicial review.  But—

“… the grounds on which the exercise of such administrative powers will be judicially reviewed are, in my judgment, necessarily much more limited than the grounds on which the court will review the exercise of a power of a judicial, or quasi-judicial, character.  Certainly, the court would be prepared to intervene in the event of any misuse by the Director of Immigration of his power under s.13.  If he were to abuse his power illegally (e.g., by refusing to consider an exercise of his powers in favour of an illegal immigrant unless bribed to do so) or irrationally (e.g., by refusing to consider an exercise of his powers in favour of any illegal immigrant of Chinese race or nationality) the court would intervene.  But, further than that, I do not believe the court would or should go.”

Godfrey J concluded :

“… there is simply no room, in my judgment, for a review of a decision of the Director of Immigration under s.13 on the ground that he has failed to proceed in accordance with the rules of natural justice.  In particular, there is no room for any suggestion that he is under some sort of duty, before making up his mind, to disclose to the illegal immigrant all, or any, of the materials on which he proposes to rely in coming to his conclusion.”

66. Mr Harris suggested that, in the light of certain English authorities; for example, Gaima v. Secretary of State for the Home Department [1989] Imm AR 205, the dicta of Godfrey J in Ho Ming Sai must be considered per incuriam.  I do not agree.  I do not see that the English authorities would have changed Godfrey J’s reasoning stated, it must be remembered, in the context not of the English situation but of the Hong Kong situation.  Godfrey J did not say that the Director was entitled to act perversely.  He held only that, in terms of the legislative framework under which the Director worked, and in accordance with law, the Director, while under a duty to act fairly in the sense of giving cases proper consideration, was not under an obligation to adhere to rules of procedural fairness as would a decision-maker acting in a judicial or quasi-judicial capacity.

67. By means of various statutory instruments, principally the Immigration Ordinance, the legislature has conferred on the Director the responsibility for determining the nature of, and administering, Hong Kong’s immigration controls.  The Director must, of course, exercise his discretion under the various statutory instruments so as to promote their objects.  If he exercises his discretion so as to frustrate those objects he exceeds the limits of his discretion and this court may intervene : see Padfield v. Ministry of Agriculture, Fisheries and Food [1968] AC 997.

68. Even after the coming into effect of the Basic Law, our courts have continued to apply the principles laid down by Lord Denning.  In Chitramay Limbu and Another v. Director of Immigration, (unreported) HCAL 51/2000, Seagroatt J described Schmidt as still being the seminal case in this area of judicial review.

69. As to the continued applicability of Schmidt, it is important to recognise that our courts have consistently accepted that Hong Kong’s unique geographical, physical, social and economic circumstances make it legitimate for the Director to manage a restrictive policy of immigration.  In Hai Ho Tak (A Minor) and Cheng Chun Heung and Others v. Director of Immigration [1994] 2 HKLR 202, Mortimer JA acknowledged the importance to the survival of Hong Kong of a strict policy of immigration.  Without it, he said, Hong Kong would be swamped with those who wish to enjoy its economic benefits.

70. The statutory discretion given to the Director is a broad discretion.  In Aita Bahadur Limbu v. Director of Immigration, unreported, HCAL 133/1999, Stock J (as he then was) defined the discretion in the following terms :

“The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one.  It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case.  To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits.  Where the determination of facts are left to the Director and the facts sweep across a range ‘from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely’ : see Hillingdon London Borough Council ex-parte Puhlhofer[1986] 1 AC 484, 518.”

71. From these authorities I have derived the following :

(i)   By long-established principle of international law, acting in terms of its delegated authority, Hong Kong may regulate the entry into the Territory of aliens and those, for purposes of immigration control, who are in the same position as aliens.

(ii)   In terms of the Immigration Ordinance and related statutory instruments, it is the Director who has been given the discretionary power to administer Hong Kong’s immigration controls.

(iii)   The Director may not exercise his discretion so as to frustrate the objects of the statutory instruments which have given him that discretion.  Nor may he abuse his discretionary power by acting illegally or irrationally.  But that said, the statutory discretion given to the Director is a broad discretion both to determine policy and to administer it and, in exercising that discretion, the Director fulfils an administrative function not a judicial or quasi judicial one.

(iv)   Aliens, and those in the same position as aliens, have no right to enter Hong Kong except with permission of the Director and, if given permission to enter for a specific period, have no right to stay longer than that specific period. 

(v)   As they have no right or interest that is affected, aliens, and those in the same position as aliens, can be refused permission without reasons given or a hearing.  The Director may not abuse his powers.  He must consider the circumstances of each case and must, in acting lawfully, act fairly.  But he is under no obligation to afford aliens, and those in the same positions as aliens, rights of procedural fairness.

72. In light of these principles, it seems to me that, if the Director did refuse the first four applicants permission to enter Hong Kong solely on the grounds of their religious or spiritual beliefs, he would at the very least have acted perversely and therefore would have acted ultra vires.  It is patently not within the Director’s discretionary powers to deny entry to persons wishing to visit Hong Kong solely on the basis that they are Buddhists, Jews, Muslims or Falun Gong practitioners any more than it is within his powers – to employ the often-used analogy – to deny entry to persons solely on the basis that they have red hair.

73. But, of course, it is the Director’s case that the first four applicants were not denied entry solely because of their religious or spiritual beliefs.  Those beliefs were incidental.  They were denied entry because, acting on an intelligence assessment made by the security agencies of the Government, he determined that that to grant them entry would not have been in the public interest.  He came to that determination on the basis that, in his view, there were no exceptional circumstances outweighing the imperatives of the intelligence assessment.  Whether his determination was, on the merits, right or wrong, is not the issue.  The issue is solely whether he acted within the limits of his broad discretionary power and clearly he did.

74. On behalf of the applicants, however, Mr Harris submitted that, having presented themselves at immigration control at Chek Lap Kok Airport, the first four applicants were entitled to the protection of the full measure of the fundamental freedoms guaranteed by the Basic Law.  As such, the Director was obliged, if he was to act lawfully, to determine whether, in denying entry, a fair balance was being struck between the general interest of the community and the protection of the fundamental rights of the first four applicants.  In short, the principle of proportionality was engaged.

75. Mr Harris based his submissions on two grounds.  First, he argued that, in presenting themselves at immigration control, the first four applicants fell under the protection of art.41 of the Basic Law.  That article, contained in Chapter III of the Basic Law, reads :

“Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.”

76. Chapter III sets out the fundamental rights and freedoms enjoyed by Hong Kong permanent and non-permanent residents.  In principle, permanent residents are those entitled to right of abode.  Non-permanent residents do not have right of abode but are qualified to obtain an identity card under Hong Kong law.  Fundamental freedoms, such as the freedom of conscience and religious belief, are enjoyed by ‘Hong Kong residents’; that is, both permanent and non-permanent residents.  Art.41 extends the enjoyment of those freedoms to all persons who are ‘in’ Hong Kong.

77. For the Director, Mr Fung said that persons wishing to enter Hong Kong are not ‘in’ Hong Kong for the purposes of art.41.  The first four applicants may physically have landed on Hong Kong soil but at Chek Lap Kok they remained ‘air side’, seeking permission to enter.  As such, they were not ‘in’ Hong Kong.  The concept advocated by Mr Fung is well-established.  The Immigration Ordinance, for example, when speaking of immigration control, refers to a person having the ‘right to land’ or to a person who ‘may not land’ in Hong Kong without permission.

78. Mr Harris countered this by submitting that physical presence on Hong Kong soil was all that was required to engage art.41.  Just as the first four applicants would have been subject to Hong Kong law if they had committed a crime while ‘air side’, equally they were entitled to benefit under Hong Kong law from the provisions of art.41.

79. In my judgment, however, the fact that in criminal matters Hong Kong assumes a territorial jurisdiction is not determinative.  The issue is one of interpretation; that is, of defining the intent of the Basic Law.

80. Art.4 of the Basic Law directs that —

“The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.”

81. Art.4 does not seek to have extra-territorial effect.  It safeguards only the rights and freedoms of those persons who are ‘in’ the Special Administrative Region not those who are outside it but would like to enter.  In this regard art.4 is a reflection of art.41.

82. In my judgment, even on a purposive construction, I do not see that art.4 or art.41 are intended to apply to persons who are not in Hong Kong but who are merely seeking permission to enter.  To use a simple analogy, such persons are only at the front door asking to come in.  The fact that, in some physical sense, they have a foot on Hong Kong soil is no more than a practical consequence of modern travel.  To employ the language of the Immigration Ordinance, they are however still seeking the ‘right to land’.

83. The second ground on which Mr Harris based his submission was to the effect that the first four applicants, in coming to Hong Kong in order to exercise fundamental freedoms guaranteed by the Basic Law and/or the Bill of Rights, were entitled to look to the protection of those freedoms.  As Mr Harris put it, those instruments then became ‘engaged’.

84. As I understand it, Mr Harris’ submission was drawn from jurisprudence of the European Court of Human Rights.  The jurisprudence was succinctly explained in R. (Farrakhan) v. Secretary of State for the Home Department [2002] QB 1391, at 1413, Lord Phillips MR giving the judgment of the Court of Appeal :

“We have drawn the following conclusions from the Strasbourg jurisprudence.

The right under international law of a state to control the entry of non-nationals into its territory is one which is recognised by the Strasbourg court.  Where entry is refused or an alien is expelled for reasons which are wholly independent of the exercise by the alien of Convention rights, the fact that this carries the consequence that he cannot exercise those rights in the territory from which he is excluded will not constitute a violation of the Convention.

In exceptional circumstances the obligation to protect Convention rights can override the right of a state to control the entry into its territory or presence within its territory of aliens …

Where the authorities of a state refuse entry or expel an alien from its territory solely for the purpose of preventing the alien from exercising a Convention right within the territory, or by way of sanction for the exercise of a Convention right, the Convention will be directly engaged …

Thus, where the authorities of a state refuse entry to an alien solely to prevent his expressing opinions within its territory, article 10 will be engaged.  In such a situation the application of the provisions of article 10(2) will determine whether or not the interference with the alien’s freedom of expression is justified.”

85. The Strasbourg jurisprudence, however, is based on the exercise of rights under the European Convention, that being an instrument binding those states of the European Community who contracted to be bound by it.  The Basic Law is no such instrument.

86. The International Covenant on Civil and Political Rights (the ICCPR), which finds its expression in Hong Kong domestic law as the Bill of Rights is, however, an international agreement to which Hong Kong has contracted to be bound.  But the ICCPR – as applied to Hong Kong – has been adopted subject to a reservation in respect of immigration matters and that, in the present case, I find decisive.

87. Art.39 of the Basic Law provides :

“The provisions of the International Covenant on Civil and Political Rights [the ICCPR], the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

88. The ICCPR was applied to Hong Kong when it was a dependent territory of the United Kingdom which made the following reservation :

“The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of ... the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom.  The United Kingdom also reserves a similar right in regard to each of its dependent territories.”

This reservation was reflected in s.11 of the Bill of Rights :

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

89. As the Court of Final Appeal observed in Tam Nga Yin and others v. Director of Immigration (2001) 4 HKCFAR 251, at 260 :

“The effect of the reservation and s.11 is that the ICCPR and the Bill of Rights do not apply to and do not affect immigration legislation regarding persons not having the right to enter and remain in Hong Kong.”

90. In February 2003, the first four applicants did not have the right to enter and remain in Hong Kong.  As such, I do not see how it can be said that, in seeking to enter Hong Kong – as visitors only – in accordance with Hong Kong’s immigration legislation, the ICCPR and the Bill of Rights were engaged. 

91. It does not follow from my rejection of Mr Harris’ submissions, of course, that, in considering whether to give permission to the first four applicants to enter Hong Kong, the Director was not in any way constrained by law.  I have made it plain that he was and to that extent he had the court at his shoulder.  But, in my view, in deciding whether to give permission, the Director was not constrained, as Mr Harris advocated, by the principle of proportionality.

The third issue : were the first four applicants denied permission to enter Hong Kong solely or substantially because of their religious or spiritual beliefs?

92. As I have said earlier, this has really been the core issue.  It is, however, an issue of disputed fact.

93. By way of background, it should be said that the hearing of this application for judicial review was originally set down for September 2005.  However, a week or two before the hearing, the applicants – who had not previously made any such application – sought an order for discovery against the Director.  The applicants, for obvious reason, said that this was an exceptional case in which discovery was essential.  The hearing dates were employed, therefore, to determine the discovery application.

94. Certain material was discovered to the applicants.  Certain other material was shown to me under a claim for public interest immunity.  It can be said, however, that none of the material revealed matters going to the reason why the first four applicants were refused entry.

95. Later in the hearing, I was informed that the relevant data fed into the immigration watchlist was, in accordance with standard practice, deleted within three weeks or so of its relevance falling away.  In addition, seemingly in or about the same time frame, and also apparently in accordance with standard practice, other records in the archives of Government dealing with the reason why the first four applicants were refused permission to enter Hong Kong were destroyed.  In summary, whether open to scrutiny by the applicants or protected by public interest immunity, there were in fact no relevant contemporary records available.

96. However, over the course of the litigation, various officials made affirmations refuting the allegation that the first four applicants were refused entry because of their religious or spiritual beliefs.  In this regard, I have earlier made reference to the affirmations of Mr Choy Tak Po and Mr Tong Hin Ming (paras.24 and 25).

97. While it was revealed that agencies of Government had received intelligence, the source of that intelligence was not revealed nor was its detailed nature.  In my judgment, the Director was not obliged to reveal this material.

98. In this regard, the law, as I understand it, is settled.  In R. v. Secretary of State for the Home Department ex parte Raghbir Singh [1995] IMM AR 447, at 448, Laws J defined it in the following terms :

“It is now well established that although there are constraints on the extent to which the court may require the Secretary of State to give reasons in a case where he has made a decision based on national security grounds, nevertheless, the Secretary of State is obliged to give such reasons as he properly can, consistent with security interests.”

99. Mr Tong Hin Ming gave reasons which the Executive believed it could properly give consistent with the interests of Hong Kong’s security; namely, that there was intelligence that the first four applicants were engaged with others in organising disruptive activities which it was believed posed a threat to public order in Hong Kong.

100. In the circumstances, unless there is evidence that there has been bad faith on the part of the Executive it seems to me that I must accept the position that Hong Kong’s security prevented further intelligence material being revealed.  I do not say that any assertion going to security will act as a plea in bar.  As I have said, reasons must be given and it behoves the Executive, if it wishes to avoid adverse findings, to ensure those reasons are credible.  But nevertheless the extent to which intelligence is revealed must, as I see it, be left to the discretion of the Executive.

101. In the present case, of course, Mr Harris, for the applicants, submitted that the Executive has been guilty of bad faith, this being demonstrated by its refusal to make relevant material available to the court and by its general lack of candour in its conduct of the judicial review proceedings.

102. Despite this allegation, there was no application made to cross-examine the Director’s witnesses except in respect of one entirely peripheral matter going to the conduct of an interview at Chek Lap Kok.  It must be that Mr Harris, for the applicants, did not believe that anything would be achieved by being able to cross-examine.

103. In the result, on behalf of the Director, Mr Fung asked me to accept what had been affirmed as being the truth of the matter.  Even though there was no cross-examination, I am, however, not bound to do so.  It remains open to me, in whole or in part, to reject the contents of the affirmations.  That is not to say, however, that I am entitled simply to form my own preferred view of the evidence.  For a start, it is not possible to gauge relative credibilities on paper.  In the circumstances of this case, if I am to reject the Director’s evidence, it must be on the basis that it discloses inherent improbabilities.

104. Mr Harris referred me to a number of evidential matters which, he said, taken together, would justify rejection of the Director’s assertions.  It appears to me, however, that the matters put before me by Mr Harris were essentially no more than assertions themselves.  They did not constitute independently verifiable facts and, as such, I could place little reliance on them.

105. Emphasis was placed by Mr Harris on the assertion that the first four applicants were persons of good character, well-educated and employed.  It was also said that the Falun Gong movement is a benign movement, not a movement, even at the fringes, which advocates violence or disorder.  That may be so.  But how far does it take me?  While the Falun Gong movement may not advocate acts of disorder, it does not follow that all its adherents will at all times, no matter what the circumstances, adhere to that principle, especially if they believe that exceptional action is demanded.  History shows that there is always a risk that religious activism, like social or political activism, may be manifested by acts which bring about a rupture of peace and good order.  It seems to me that it was, in the circumstances, a matter for the intelligence agencies of Government to decide whether in February 2003 there was such a risk.

106. Emphasis was also placed by Mr Harris on the admitted fact that the first applicant was allowed into Hong Kong when on secular business but denied entry twice when seeking to pursue Falun Gong matters.  That, said Mr Harris, indicated that the Executive was denying her entry simply on the basis of her religious and spiritual affiliation.  Again, that may be so.  But equally, in my view, it could have been the case that the Executive was taking pains to differentiate between those occasions when it believed the first applicant, seemingly in the name of religious activism, was seeking to disrupt Hong Kong’s peace and good order and those other occasions when it believed she had no such intention.  If so, that would indicate an entirely appropriate use of intelligence.

107. Much emphasis was placed on the assertion that the Falun Gong movement has been persecuted in the Mainland and that the influence of the Mainland authorities was evident in the decision to refuse the first four applicants permission to enter Hong Kong.  In support of this, Mr Harris listed a number of matters (detailed in para.21 above) which, he said, if the intelligence had come from the Mainland, the Executive should have taken into account but clearly failed to do.  That submission, however, was built on two matters of conjecture; first, that the intelligence came from the Mainland authorities and, second, that the Executive failed to take into account the matters which he listed.  There was simply no evidence on these issues.

108. In any event, the matters listed by Mr Harris amounted to no more than advocated assertions on behalf of the applicants as to how the Falun Gong movement perceives itself to be and how it perceives the nature of the Mainland’s actions against it to be.  In the difficult area of assessing intelligence and deciding whether to act on that intelligence, it seems to me that, whatever the source of the information, it was a matter for the Executive to form their own view of the true intentions of the first four applicants.  It is a long-established principle that, while the courts must be anxious to prevent injustice to individuals, those who are responsible for Hong Kong’s security must be the sole judges of what that security requires.

109. By the end of the hearing, it was apparent that one of the principal matters being advanced by Mr Harris in support of his submission that I should reject the Director’s evidence was the fact that there were no longer any contemporary records in the archives of Government as to why the first four applicants, together with more than 70 others, were refused entry to Hong Kong on 21 February 2003.  Mr Harris said that it was impossible to believe that Government would not, somewhere in its archives, have retained some records of its decision-making and that the denial of this was evidence that the Executive was withholding important matters of evidence from the court.  Mr Harris emphasised that in judicial review it is essential that all the cards are put face up on the table and that failure to do so may – and in this instance, should – result in adverse inferences being drawn.

110. The issue of a lack of substantive contemporary documents, even if protected by public interest immunity, was of concern to me.  As I said during the course of the hearing, the reasonable man on the street would probably have difficulty accepting that Government would have destroyed all of its records going to why some 80 people were refused entry to Hong Kong, two of those people having to be placed under physical restraint.

111. But that being said, there was no evidence of the procedures adopted by Government in respect of security issues of this kind.  As the Chief Secretary put it, when talking of the watchlist, in his certificate supporting a claim for public interest immunity :

“The watchlist system forms part of the operation system in safeguarding the security of the HKSAR.  It is, amongst other things, an essential tool to keep away persona non-grata and any person who may pose risks to the security, public order and public safety or the peace and stability of the HKSAR, or whose entry into the HKSAR is not in the public interest.  Disclosure … would reveal the internal working of the watchlist system, which may result in undesirable elements being in a better position to circumvent HKSAR Government’s immigration control or sabotage the system, thereby gravely undermining the effectiveness of the whole immigration control system, and thereby posing the said risks to the security, public order and public safety or the peace and stability of HKSAR.  It is therefore of paramount public interest that the internal working of the system should not be revealed.”

112. I must also bear in mind that the records were not the equivalent of criminal records.  Nobody representing the Director has suggested that the first four applicants were considered to be people who should not on any occasion be admitted to Hong Kong or whose presence in Hong Kong would on all occasions threaten Hong Kong.  The records only went to why it was that – on this one particular occasion – the first four applicants were denied entry.

113. Mr Fung emphasised that a person may be put on the watchlist for any number of reasons, often only, as with the first four applicants, in respect of one intended visit.  Once that data loses its relevance then, to ensure that irrelevant material, potentially prejudicial to the individual, does not clutter the system, it is deleted and collateral records, equally irrelevant, are also destroyed.

114. In my judgment, taking these various matters into account, I do not see how I can reject counsel’s statement – made on behalf of the Director after taking specific instructions on the issue – that the relevant records were destroyed in accordance with standard procedures and not in order to put them beyond the reach of the court.

115. As to the issue of candour, it is a fact that this application for judicial review has proceeded along a tortuous pathway.  But I do not see that the fault must lie, as Mr Harris said it must, with a lack of candour on the part of the Director.  It has always been his case that it was a matter for him what enquiries he made and he was under no obligation to give more detailed reasons for his decision or to afford the applicants a hearing before coming to his decision.  It has further always been his case that he did not act on the basis of religious discrimination but on the basis of confidential intelligence going to matters of security.

116. As I have said, it was a matter for the Executive acting through the Director to determine the amount of intelligence it could properly reveal consistent with Hong Kong’s security interests.  A failure to reveal all that the applicants sought could not therefore be put down to bad faith exhibited by a lack of candour.  When the applicants instituted these proceedings they must have appreciated that, being entitled to guard the interests of Hong Kong’s security, the Executive, having given reasons for the decisions taken, would not be prepared to declare such sensitive matters as who had been the source of the intelligence.

117. To try and find some way of circumventing the difficulties, the applicants substantially amended their case.  Indeed, by the time of the substantive hearing, Mr Harris was talking about the central importance of procedural fairness in this application, an issue which, on my reading of the progress of this litigation, had less relevance at the outset.

118. I make these observations not by way of criticism but to record only that allegations of bad faith on the part of the Executive in the defence of these proceedings were not, in my view, justified.

119. In the circumstances, I do not find the Director’s assertion that the intelligence agencies of Government acted entirely on issues of security to be inherently improbable.  Indeed, in my view, the weight of the evidence, in so far as it is possible to assess that weight in the absence of oral testimony and cross-examination, supports the Director in his contention that issues of religious or spiritual affiliation were entirely incidental to the decisions made in respect of the first four applicants.

120. Was the Executive correct in its intelligence assessment?  I have no way of knowing and, in any event, it is not my function to consider the merits unless I find that any assessment made, and action taken in respect of that assessment by the Director, was so unreasonable as to be perverse.  It is my function to consider whether, right or wrong, the Director; that is, the Government, acted lawfully.

121. For the reasons given, therefore, I must reject the contention that the first four applicants were denied permission to enter Hong Kong solely or substantially because of their religious or spiritual beliefs.

122. By way of a postscript, I record that I can understand the frustration felt by the applicants in not being able to discover in detail why it is, as they have always asserted it, that the first four of them were unjustly refused entry to Hong Kong.  But, as Lord Donaldson MR expressed it in R. v. Secretary of State for the Home Department, ex parte Cheblak [1991] 1 WLR 890, at 902 :

“the exercise of the jurisdiction of the courts in cases involving national security is necessarily restricted, not by any unwillingness to act in protection of the rights of individuals or any lack of independence of the executive, but by the nature or the subject matter.  National security is the exclusive responsibility of the executive.”

The fourth issue : Were the decisions to place the first four applicants on the watchlist and to refuse them permission to enter Hong Kong ‘Wednesbury’ unreasonable?

123. In respect of this issue, I am asked to find that the assessment of intelligence by the Government’s intelligence agencies was so lacking in a consideration of relevant matters that it was perverse, vitiating the decisions made as a consequence of that assessment.

124. However, as I have said, I have no details of the exact nature of the intelligence or its source.  Without that I do not see that I am in any sort of position to determine what should have been considered and what should not.

125. More than that, Hong Kong’s security being the exclusive responsibility of the Executive, a wide margin of appreciation must be given to the Executive.

126. Mr Harris submitted that I have sufficient evidence to infer perversity.  But, for the reasons already given, I do not see that the evidence he has put before me has advanced his cause.

127. There is simply no basis upon which I can come to a finding that the decisions made in respect of the first four applicants were unreasonable in the Wednesbury sense.

The fifth issue : If the first four applicants were denied permission to land solely or substantially because of their religious or spiritual affiliation, did that constitute a breach of the freedoms guaranteed to the fifth and sixth applicants under art.141(4) of the Basic Law?

128. That the firth and sixth applicants were denied their freedom of religious association under art.141(4) of the Basic Law could only be asserted if I found that the first four applicants were denied entry to Hong Kong solely on the basis of their adherence to the Falun Gong movement.  I have not come to that finding.  To the contrary, I have come to a finding that, as the Director has asserted, they were denied entry because, on an assessment of intelligence, they were thought, rightly or wrongly, to pose a security risk.

The sixth issue : did possession of multiple entry permits give the first four applicants a legitimate expectation of procedural fairness?

129. Earlier in this judgment (para.71), I stated relevant principles of our law as I understand them to be.  They include the following —

(i)   Aliens, and those in the same position as aliens, have no right to enter Hong Kong except with permission and, if given permission to enter for a specific period, have no right to stay longer than that specific period. 

(ii)   As they have no right or interest that is affected, aliens, and those in the same position as aliens, can be refused permission without reasons given or a hearing.  The Director may not abuse his powers.  He must consider the circumstances of each case and must, in acting lawfully, act fairly.  But he is under no obligation to afford aliens, and those in the same positions as aliens, rights of procedural fairness.

130. However, at the time that they sought permission to enter Hong Kong, the first four applicants were in possession of multiple entry permits.  On behalf of the Director, such permits have been described as being similar to visas.  The possession of those multiple entry permits, said Mr Harris, vested the first four applicants with a legitimate expectation.  As he put it, a person who has obtained and paid for a visa is entitled to expect that he will not then be refused entry arbitrarily or without good reason.  The legitimate expectation did not entitle the first four applicants to enter Hong Kong.  But, if their entry was refused, it did entitle them to be informed why, despite their valid permits, they were being refused entry.  It further entitled them to make representations and to have those representations considered before a final decision was made.

131. This was contested by the Director.  As I understood Mr Fung’s submission, it was to the effect that a multiple entry permit is nothing more than a qualifying document, one that enables the holder, on arrival in Hong Kong, to be at least considered for entry.  However, as standard rules printed on such permits make plain, the holder remains subject in all respects to immigration control in terms of the relevant Hong Kong legislation.  That means that the holder cannot enter Hong Kong without the permission of an immigration officer and that permission may be refused.

132. Legitimate expectation has been defined by Beldam LJ in Behluli v. Secretary of State for the Home Department [1998] Imm AR 407, at 415, in the following terms :

“… an expectation which, although not amounting to an enforceable legal right, is founded on a reasonable assumption which is capable of being protected in public law.  It enables a citizen to challenge a decision which deprives him of an expectation founded on a reasonable basis that his claim would be dealt with in a particular way.”

133. An alien, or a person, for immigration purposes, in the same position as an alien, may be the beneficiary of a legitimate expectation.  See, for example, Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629, at 638 :

“Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject.  The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.”

134. In the present case, Mr Harris contended that the issue of permits to the first four applicants constituted a clear representation that they now had permission to enter Hong Kong during the period of validity of the permits or at least that they would not be refused entry without good reason.  Mr Harris accepted that the issue of the permits did not amount to a legitimate expectation creating a substantive benefit; namely, the right under any circumstances to enter Hong Kong.  However, it did create an interest in that substantive benefit, an interest which could not be denied without giving the applicants the opportunity to know why they were not being allowed entry to Hong Kong and the opportunity to put their side of the story before any final decision was made.

135. The first issue to be determined therefore is whether the issue of the multiple entry permits constituted any sort of clear representation or some regular practice adopted by the Hong Kong authorities to the same effect.

136. It has been accepted that multiple entry permits are similar to visas.  But what are visas?  S.61 of the Immigration Ordinance provides that, unless an exemption is granted by the Director, a travel document will not be valid unless it bears a visa.  But a visa itself does not appear to be defined. 

137. By way of a general definition, a visa may be described as an endorsement to a passport which permits the holder to enter and stay in a country for a prescribed period.   Halsbury’s Laws of Australia [77-396] describes the nature of a visa under the Migration Act 1958 in the following terms :

“A visa … permits the non-citizen holder to travel to, enter and/or remain in Australia for a prescribed, specified or indefinite period.  The permission to travel to, enter and stay in Australia extends only for the prescribed or specified period that the visa is in effect.  Non-citizens in Australia who do not hold a valid visa are liable to be detained and removed from Australia.  The visa ensures that a non-citizen is not detained or removed.”

138. It is apparent, however, that a visa, or any similar document, is no more than the issuing authority intends it to be.  It may, for example, constitute an absolute permission to enter a country which may only be set aside for specified reasons or it may do no more than qualify the holder, when he seeks entry, to be able to apply to do so.

139. It is the Director’s case that the multiple entry permit falls into the latter category.  It does not constitute even a provisional permission to enter.  It does no more than qualify the holder, when he presents himself at immigration control, to seek permission to enter.  To express it another way, if a person who is obliged to possess a multiple entry permit is not in possession of it, he is liable to be prevented even from seeking permission to enter.

140. For a multiple entry permit to constitute a representation capable of giving rise to a legitimate expectation, the representation, as I see it, must be clear, unambiguous and, importantly, devoid of relevant qualification.  However, as I have said earlier in this judgment (para.36), multiple entry permits contain standard rules, one of these stating :

“The holder of this permit is subject to immigration control under the provisions of the Immigration Ordinance, Cap.115, Laws of Hong Kong.”

141. S.7 of the Immigration Ordinance directs that persons in the position of the first four applicants may not land in Hong Kong without the permission of an immigration officer or an immigration assistant.  S.11 states that such permission may be refused.  No qualification is provided for persons in possession of multiple entry permits.  In summary, in terms of the Ordinance, even though they were in possession of multiple entry permits, the first four applicants still had to seek permission to land and, in the broad discretion of the Director, that permission could be refused.

142. On this basis, I do not see that the issue of the permits to the first four applicants vested them with any sort of legitimate expectation that, when their application to enter was made, they were entitled to be treated differently from any other person who had no right to enter Hong Kong except with permission.

143. I would add that legitimate expectation must in any event yield to primary legislation; in this case, the provisions of the Immigration Ordinance.

144. In the circumstances, I am satisfied that the issue of multiple entry permits to the first four applicants did not vest them with a legitimate expectation of the kind advocated and did not impose upon the Director an obligation to give reasons and to allow for representations.  The Director, in my view, remained entitled to make such enquiries as he saw fit and was not under an obligation to provide a hearing.

The seventh issue : was the use of force employed to remove the third and fourth applicants from Hong Kong unlawful?

145. It is accepted that in order to get them to the aircraft flying them back to Taiwan, the third and fourth applicants were seized by immigration officers and each placed in a restraining device called a ‘humane blanket wrap’.  As the name implies, the device consists essentially of a blanket which is wrapped around the person being restrained, enclosing the legs and arms.  It is then secured.  It is designed to transport the restrained person in a horizontal position.

146. The third and fourth applicants contend that this use of force was inappropriate and/or excessive and was therefore unlawful.

147. The first issue, of course, is whether any force at all was required.  In my judgment, on the evidence put before me, I am satisfied that the decision to employ some measure of force was a lawful one.  I say that because it is apparent that the third and fourth applicants sought to physically resist being removed from Hong Kong by being taken to the aircraft.  In the face of that resistance, appropriate force was a lawful option.  The second issue goes to the nature of the force used.  Again, on the evidence put before me, I am satisfied that it was not so excessive or so inappropriate as to be unlawful.

148. In giving my reasons for these two findings, I record that no oral testimony was given, either by the applicants or on behalf of the Director.  On this occasion, however, I was not left in the invidious position of having to make important findings of fact on the basis of affirmation evidence only.  I say that because there was a video recording of the events.

149. The evidence revealed that a video camera was installed in a fixed position in the lounge where the third and fourth applicants were detained and from which they were taken under restraint.  The camera did not record sound.  In addition, when played back, events were depicted at an increased speed.  It was similar in many ways to watching a very early silent film.  A digital clock appeared at the bottom right of the video film so that the time was known.

150. Among the many allegations made by the first four applicants was a general allegation of oppressive treatment : lack of food and drink, stringent restrictions on their movements and the like.  I am constrained to say, however, that I could see nothing on the video film suggesting oppressive treatment.  In the film, the lounge appears to be relatively comfortable.  Detained persons are seen walking around and using their mobile telephones.  The third and fourth applicants are shown at one time taking out a plastic water bottle – it is not clear from where – and drinking from it, sharing the bottle with another person.  Later, shortly before the third and fourth applicants are removed from the lounge, a person is shown bringing in a plastic bag containing what appears to be meal boxes and putting it on the counter at the far end of the lounge.  Nobody appears to take any particular notice of it.  The film being silent, I could not tell, of course, whether any announcement is made as to food being available.

151. As for the removal of the third and applicants from the lounge, the video film does not suggest, as the applicants allege, that they were taken by surprise.  Although, as I have said, there is no sound recorded, well before the removal takes place, a number of officers are seen engaging the third and fourth applicants in animated conversation.  Clearly, they are attempting to explain something to the applicants.  Equally clearly, the applicants are debating the issue with them.

152. In his affirmation, Mr Fung Pak Ho, the Acting Chief Immigration Officer who supervised events, said that the two applicants were in a state of agitation and he believed that they were liable to harm themselves and the escorting staff.  A state of agitation may take many forms.  Regrettably, without sound, the emotional state of the two applicants could not be assessed with any accuracy. 

153. However, shortly before the applicants are restrained a number of officers dressed in blue fatigues are seen entering the lounge and taking up positions.  That must have telegraphed a clear intent.  When an attempt is then made to move the fourth applicant, he is seen resisting by gripping the arm of his chair and clinging to it.  There can be no suggestion that he is attempting to assault any of the officers but clearly a determined form of passive resistance is being employed.

154. As for the third applicant, several tentative attempts are made by female officers to move her; for example, by taking hold of her wrists, before she is seen being placed on the floor.  After each tentative attempt, animated discussion takes place.

155. The actual restraining process of the third and fourth applicants is not shown in the sense that too many officers are gathered around and the film moves too quickly.

156. However, taking all the evidence into account, I am satisfied that the third and fourth applicants must have known that they were required to be escorted to an aircraft to fly them back to Taipei.  It seems that, as events unfolded, they must also have understood that, if they resisted, some form of compulsion would have to be used against them.  Yet they chose to resist.  In those circumstances, in my view, it was a matter for the senior immigration officer at the scene to determine what was the most effective and safest way of getting the two applicants to their aircraft.  Patently, some form of compulsion was required.  The restraining device used is designed specifically to minimise injury to the person who is the subject of restraint and to minimise the risk of harm to those who must do the restraining.  I cannot see that its use was unlawful.

157. On return to Taipei, the third and fourth applicants were shown on a separate video recounting their ordeal and displaying their injuries.  The injuries to the third applicant, the wife, consist primarily of a number of round red marks on her lower arms.  There is no evidence of injuries which would suggest the use of gross or excessive force.

158. In the result, having regard to all the evidence put before me, I am satisfied that the force used by the Director’s officers was lawful.

Other matters

159. During the course of the hearing numerous arguments were raised.  I have not dealt with all of them.  I am satisfied, however, that they are subsumed into this judgment and, directly or indirectly, determined by it.

Conclusion

160. For the reasons given in this judgment, the application for judicial review is dismissed.

161. There will be an order nisi awarding costs in favour of the respondent.  I make it an order nisi for the principal reason that there have been a number of interlocutory hearings and independent orders may be sought in respect of one or more of those hearings.

(M.J. Hartmann) Judge of the Court of First Instance, High Court

Mr Paul Harris, SC and Ms Annie Leung, instructed by Messrs Ho, Tse, Wai & Partners, for the 1^st to 6^th Applicants

Mr Daniel Fung, SC and Mr Johnny Mok, SC, instructed by Department of Justice, for the Respondent

Appeal by the Applicants to Court of Appeal dismissed. Please refer to CACV119/2007 dated 4 September 2009