RE SZETO CYNTHIA

CACV 233/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2011

(ON APPEAL FROM HCAL NO. 77 OF 2011)

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J U D G M E N T

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Hon Kwan JA (giving the Judgment of the Court):

1.  This is an appeal against the refusal of leave to apply for judicial review. On 20 October 2011, Macrae J dismissed the ex parte application of the applicant, Ms Cynthia Szeto, following a consideration of documents only. She appealed to this court as of right. She has been acting in person throughout.

2.  In this appeal, Ms Szeto relied on new evidence not adduced in her application for leave to apply for judicial review.  Such evidence was not given on affidavit but is found in a “Statement of Appeal” of 7 pages with 11 exhibits included in an Appeal Bundle submitted to this court on 2 December 2011, and in a “Chronology of Events” of 16 pages with 5 annexes submitted to this court on 16 December.  We have considered such new evidence de bene esse.

3.  After the hearing of the appeal, Ms Szeto supplemented her written and oral submissions with a letter to this court dated 25 December 2011 of two pages, and on 3 January 2012 served on this court an “Appeal Bundle Supplemental Materials” of 75 pages. This bundle was served without leave. The additional materials consisted of extracts from her personal diary which she has asked this court to keep confidential, her letter to her friends and various news cuttings in 2011. We have perused the additional materials even though they were served without leave.

The background

4.  The background leading to her application for leave to apply for judicial review against a decision of the Commissioner on Interception of Communications and Surveillance (“the Commissioner”) may be stated as follows.

5.  Ms Szeto studied law at the University of Hong Kong from 2002 to 2005.  During that time, she bought a laptop computer from the university’s student computer programme.  In 2005, she began to suspect that her computer had been hacked into, most probably by people from the university.  She attended job interviews in 2006 and 2007 and what happened in the interviews led her to believe that her email sent using her computer had been intercepted.  She believed this was done by her former teachers at the Law Faculty, her classmates and/or their associates.  She stopped looking for a job in 2008.

6.  In December 2007, she moved away from the Hong Kong Island to live in a village in Mui Wo, Lantau Island.  In early 2008, she ran into a former acquaintance at the University of Hong Kong in Mui Wo.  She believed that certain people in Mui Wo are connected to some of her acquaintances at the university.  In 2009, some people in the village allegedly harassed her.  They included her neighbours living at the top floor, a group of Catholics alleged by her to have political background and subversive intent, and a landlord.  She reported the alleged harassment to the police.  She claimed that her neighbours appeared to know the contents of personal documents and private matters which she handled with her computer.

7.  In 2010, she began writing letters to a number of people to complain of the hacking of her computer, the interception of messages from her computer in an attempt to blacken her name and the tapping of her telephone.  Recipients of her letters included the Dean of the Law Faculty of the University of Hong Kong, the chairman of the University Grants Committee, the Secretary for Education, the Commercial Crime Bureau of the Hong Kong Police, the service provider of her telephone, the management office of her building estate, the Secretary for Justice and the Complaints Against Police Office.

8.  In April 2010, she made a report to the police claiming that the telephone at her home had been tapped, and that she suspected this was done by a group of people associated with the university.  In June 2010, she reported to the police of the hacking of her computer including her email accounts and again mentioned that the suspects were the staff of the Law Faculty, their associates, assisted by a group of people working at radio and television stations.

9.  She moved to Discovery Bay in June 2010.  In August 2010, she made a report to the police of the tapping of her new fixed line telephone in her new residence and of her mobile telephone.  She alleged that the caretaker of the building where she lived had known about this.  Further reports were made to the police of telephone tapping in November and December 2010 and February 2011.  She claimed that her computer at home had been hacked into and she was constantly under surveillance in her flat after it was renovated. She suspected surveillance devices were installed in the walls of her flat and underneath the basin in the bathroom.  She alleged the hacking of her computer had continued even though she had replaced the computer with a new one in August 2010.  She claimed that the surveillance was carried out by the Catholic group mentioned above, assisted by people from the media.

10.  As Ms Szeto was not satisfied with the “lax attitude” of the police, she wrote to the Secretariat of the Commission on Interception of Communications and Surveillance (“the Secretariat”) on 31 August 2010 requesting to know if her fixed line telephone at her flat in Discovery Bay was subject to interception and surveillance.

11.  The Secretariat replied by letter dated 2 September 2010, drawing her attention to section 43 of the Interception of Communications and Surveillance Ordinance, Cap. 589 (“the Ordinance”) and enclosing a Consent Form.

12.  Under section 43, a person may apply to the Commissioner for an examination if he suspects that any communication transmitted to or by him has been intercepted by “an officer of a department” or that he is the subject of any covert surveillance that has been carried out by “an officer of a department”.  Section 44(1) provides that where the Commissioner receives an application under section 43, he shall, subject to section 45, carry out an examination to determine whether or not the interception or covert surveillance alleged has taken place, and, if so, whether or not the interception or covert surveillance alleged has been carried out by “an officer of a department without the authority of a prescribed authorization”.  If, on an examination, the Commissioner determines that the interception or covert surveillance alleged has been carried out by “an officer of a department without the authority of a prescribed authorization”, he shall as soon as reasonably practicable give notice to the applicant under section 44(2) and invite the applicant to confirm if he wishes to seek compensation from the government.  If, on an examination, the Commissioner makes a determination other than that referred to in section 44(2), he shall as soon as reasonably practicable give notice to the applicant stating that he has not found the case in the applicant’s favour pursuant to section 44(5).

13.  Schedule 1 to the Ordinance specifies the relevant departments in relation to activities of interception and covert surveillance governed by the Ordinance.  In respect of the former, they are the Customs and Excise Department, the Hong Kong Police Force and the Independent Commission Against Corruption.  In respect of the latter, they are the three departments mentioned earlier and the Immigration Department.

14.  The Secretariat specifically stated in the letter of 2 September 2010 that it was only in the situation where Ms Szeto suspected that her telephone number was subject to interception or covert surveillance by an officer of any of the above departments that she may submit an application in writing to the Commissioner for examination under section 43 of the Ordinance.  If that should be the case, she was asked to provide further information such as the circumstances or events that had caused her suspicion.

15.  On 3 October 2010, Ms Szeto returned the Consent Form for the purpose of requesting an examination under section 43 to the Secretariat giving particulars of two telephone numbers and two email accounts she suspected to be intercepted, the period of suspected interception and the names of the service providers.  She did not however specify the law enforcement agency that had carried out the alleged interception and simply stated she had “no idea”.

16.  The Secretariat replied by letter dated 8 October 2010 noting that her allegation was related to interception only and not covert surveillance, that she had not stated which law enforcement agency was suspected to have carried out the interception, and reiterated that if the alleged interception was not carried out by any of the specified law enforcement agencies in the Ordinance, it would be treated as falling outside the scope of the Ordinance and the statutory purview.

17.  Ms Szeto replied by letter dated 15 October 2010, stating that she believed the Hong Kong police “is instructed by ‘court order’ to do nothing about her landline being intercepted, even though they may not play an active role in the interception process” and she suspected that the Hong Kong police “is briefed by the Administration of the HKSAR, represented by HK courts, to ‘allow’ the interception of [her] landline telephone to continue.”

18.  The Commissioner made a determination of her application and notified her by letter dated 30 December 2010.  Pursuant to section 45(5), the Commissioner informed her that he “[has] not found the case under [her] application in her favour and shall not take any further action in respect of [her] application.”

19.  Ms Szeto took no further action regarding the said determination of the Commissioner for six months.

20.  In the meantime, she sought the assistance of various District Councillors and wrote to various Hong Kong representatives of the National People’s Congress, various Hong Kong legislators and the Chief Executive of Hong Kong, regarding the interception of her electronic communications and telephone. She also claimed she was followed in the streets.

21.  In March 2011, she again reported to the police of telephone tapping and surveillance.  When the police went to her home to investigate, she lodged a complaint that one of the police officers had attempted to steal money from her purse during the investigation and another team member had tried to trick her into touching the purse and bank notes so that the finger prints of the other officer would not be found.  She wrote to the Commissioner of Police complaining of a ‘police crime network’, and that the police had not been investigating her reports diligently.  She made further reports and complaints to the police in the following three months.

22.  In June 2011, she raised her complaint with the Chief Executive of Hong Kong and brought up her dissatisfaction with the outcome of her application to the Commissioner.  This was followed by another letter to the office of the Chief Executive dated 5 July 2011, stating that she was denied her right to know if she was on the covert surveillance list and enclosing a copy of the Commissioner’s letter to her dated 30 December 2010.  The Chief Executive’s office referred her letter to the Secretariat for reply and the Secretariat replied to her letter on 26 July 2011, stating that pursuant to section 46(4) of the Ordinance, the Commissioner is not allowed to give reasons for his determination or to indicate whether or not the alleged interception of communications or covert surveillance has taken place.

23.  Ms Szeto wrote a further letter to the Commissioner dated 1 August 2011 protesting that she was denied the right to know if she had become “a Target of Covert Surveillance of the HKSAR Government” and alleging that this constituted “grave infringement on [her] basic rights of the freedoms of speech/expression/movements and privacy”.  The Secretariat in its letter of 5 August 2011 repeated its previous reply in the letters dated 30 December 2010 and 26 July 2011.

24.  Ms Szeto issued her notice of application for leave to apply for judicial review on 20 September 2011.

The application for leave to apply for judicial review

25.  In the notice of application for leave to apply for judicial review, it was stated that there are two decisions of the Commissioner in respect of which relief is sought.  The first is a decision of 30 December 2010; she claimed that was a decision “to decline [her] request for examination” and “to not proceed with [her] application for examination”.  The second is a decision of 26 July 2011; she claimed that was a decision “denying [her] right to know her own status”, namely, if she was a target of covert surveillance of the government.

26.  She sought the reliefs of: (1) mandamus to compel the Commissioner to reveal to her “whether [she] has been subject to covert surveillance and communications interception by ‘court order’ in accordance with due process”; (2) certiorari to quash the decision of 30 December 2010, being reiterated in the letters of 26 July 2011 and 5 August 2011, in which she “was denied the right to know the reasons for which the application for examination was not found in her favour”; (3) prohibition to prohibit the Commissioner to continue intercepting her communications and subject her to surveillance; (4) declaration to “declare [her] innocent of all crime and officially apologize to [her] for arbitrarily intruding into her life and living” and that the Ordinance is “unconstitutional as it is in direct contradiction to Hong Kong Basic Law articles 27, 28, 29, 30, 31” and to declare sections 31 and 65 (1)(b) and (c) of the Ordinance are unconstitutional as they are “in direct contradiction to Hong Kong Basic Law article 25”; and (5) damages to compensate her for “emotional and psychological distress she has been subject to, in addition to serious infringement on her basic human rights as stipulated in the Hong Kong Basic Law.”

27.  In the grounds for relief sought, she claimed that the decision of the Commissioner was Wednesbury unreasonable, that there was infringement of various provisions of the Basic Law as mentioned above, that there was breach of the principle of presumption of innocence, and that there was use of disproportional measures.  As for the delay in filing her application for leave to apply for judicial review, she submitted that the three-month time limit should run from the date of the Secretariat’s last reply on 5 August 2011.

The refusal of leave to apply for judicial review

28.  Macrae J refused Ms Szeto leave to apply for judicial review as he did not think she has shown a reasonably arguable case, in other words one which enjoys realistic prospects of success, in accordance with the appropriate test laid down by the Court of Final Appeal in Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676, para. 15.  He was of the view that Ms Szeto’s case is “unarguable”, as the Commissioner had complied with the law, in particular with the provisions of section 44(5) and 46(4) of the Ordinance.

This appeal

29.  In this appeal, Ms Szeto basically repeated the grounds for relief in her notice of application for leave to apply for judicial review and sought to bolster her argument with the authorities she cited.  The appeal is hopeless, for a number of reasons.

30.  Firstly, she seemed to have misunderstood the nature and effect of the decision of the Commissioner on 30 December 2010.  This was not a decision “to decline [her] request for examination”, nor was it a decision “to not proceed with [her] application for examination”.  On the contrary, having received her application for an examination, the Commissioner had carried out an examination to determine the matters he was required to determine under section 44(1).  In the letter dated 30 December 2010, the Commissioner informed Ms Szeto that “the examination is now concluded”.

31.  Secondly, she is clearly out of time in seeking relief against the decision on 30 December 2010.  Under Order 53 rule 4(1) of the Rules of the High Court, the application for leave must be made “within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”  She was informed of the decision on 30 December 2010 that the Commissioner has not found the case under her application in her favour and under section 46(4) the Commissioner is not required to give reasons for his determination.  There is no good reason for extending the period within which the application for leave should be made.

32.  Thirdly, and most importantly, as apparent from the background matters set out at some length in the earlier part of this judgment, there is no valid basis to substantiate any claim that the alleged interception of telephones at her home and email communications was carried out by the Hong Kong police.  It is evident from her statements to the police and her letters of complaint to various individuals and authorities that it was her case that such interception was carried out by the teaching staff and their associates at the University of Hong Kong, by her former neighbours, and by a Catholic group in Mui Wo, assisted by people in the media.  It is also evident from her letter to the Secretariat dated 15 October 2010 that the part played by the police as alleged by her was not an active role but it was merely to “allow” the interception to continue.  Quite clearly, the alleged interception is outside the scope of the Ordinance.

33.  That being the position, the arguments advanced by Ms Szeto in attacking the decisions of the Commissioner on the grounds of Wednesbury unreasonableness, the abuse of power, the infringement of various provisions of the Basic Law, are simply not engaged.  The application for leave to apply for judicial review must be dismissed as it is simply unarguable, as found by the judge.

34.  For the above reasons, we dismiss the appeal with no order as to costs.