Statement on the decision of the Court of First Instance in the case of Ng Siu Tung

30 June 2000

The decision of the Court of First Instance to reject all but one of the challenges to refusals following the "re-interpretation" of the Basic Law is not a surprise. As the judge recognized many of the people affected by this judgment have a profound and understandable sense of injustice. Unfortunately the courts are not well-equipped to deal with the situation where a judgement of the highest court has simply been overturned by a Committee in Beijing.

Many people who did not enter Hong Kong illegally but waited patiently in the Mainland for the outcome of the proceedings in the Court of Final Appeal have now been penalised for being law-abiding. As they had not entered Hong Kong they were not within the terms of the "concession" which the Government gave after the re-interpretation to those who had made applications in Hong Kong while the first case was going through the courts. Today's case turned mainly on whether those people who had waited in the Mainland had a "legitimate expectation" that after the Court of Final Appeal decision they would be allowed to come to Hong Kong. Many of these people had made inquiries and written letters to the Hong Kong Immigration Department.

In simple non-legal terms anyone would expect that after a final court judgment which was well know to affect many people's rights the people affected would know their rights and be able to act on them. However the judge held that there was no expectation that could be enforced at law in the face of the re-interpretation . Human Rights Monitor considers that this is not a clear-cut legal point and that there is room for 2 views. We expect that the case will be taken to appeal.

The saddest aspect of the case is the way in which people's lives have been disrupted by a completely unforeseeable event - the re-interpretation - which the Government never hinted at while the case was going through the courts the first time. It is clear from the judgment that the judge appreciated this but felt that there was little that he could do. The case shows the continuing confusion and hardship which has been created for so many people by the Government's lack of respect for the rule of law.

Human Rights Monitor has one specific criticism of the judgement, for relying on the Government's figures for the number of right of abode seekers. The Monitor's own survey, endorsed by independent statisticians, has conclusively shown that the Government's high figure of 1.6 million is unreliable and that the likely figure is very much lower. By accepting the Government's unreliable figure without challenge the judgment gives a false air of reasonableness to the Government's decision to seek a re-interpretation.

OUTRAGEOUS POLICE EXCLUSION OF LITIGANTS FROM COURT

More serious than anything in the judge's judgment in this case is the fact that the police todaywithout lawful authority prevented any of the applicants in the case from entering the court building to hear the judge hand down the judgment in their own case, although the case was supposed to be in open court. The Monitor has checked that no order was given by the judge to exclude anyone from the hearing, which was in open court. However a very large police presence cordoned off the High Court building and prevented any right of abode litigant from entering. Preventing litigants from entering court to hear their own case is something associated with Mainland China, not Hong Kong. It marks a critical move away from a free society and towards a police state. We do not believe that it has ever happened before in Hong Kong, and we call on the Government and the Commissioner of Police to confirm that the police will never again take such illegal and oppressive action.


2000 (c) Hong Kong Human Rights Monitor


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