LAI CHEE-YING v. COMMISSIONER OF POLICE

CACV 356/2022 and CACV 357/2022, [2023] HKCA 777

On appeal from [2022] HKCFI 2688

CACV 356/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2022

(ON APPEAL FROM HCMP NO 1218 OF 2020)

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AND

CACV 357/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 357 OF 2022

(ON APPEAL FROM HCAL NO 738 OF 2022)

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(Heard together)

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J U D G M E N T

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The Court:

Introduction

1.  This is an application by the Plaintiff in CACV 356/2022 and the Applicant in CACV 357/2022 (“the applicant”) for a certificate that two points of law of great and general public importance are involved in the judgment that this Court handed down on 19 October 2022 (“the Judgment”)[1] under section 32(2) of the Hong Kong Court of Final Appeal Ordinance.[2] The first point is set out in the Notices of Motion dated 9 November 2022:

“Are the search and seizure provisions in Schedule 1, section 2(3) of the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“IR”) subject to the provisions of Part XII of the Interpretation and General Clauses Ordinance (“IGCO”[3])?” (“Question 1”)

The second question is to be found in the applicant’s written submission dated 10 February 2023 where he indicated that he would seek leave to amend the Notices of Motion, if certification is granted, to add:

“If the said provisions are not subject to Part XII of [the IGCO] and a magistrate can use them to authorize the seizure of journalistic material as defined in section 82 of the IGCO, what steps must a magistrate take to ensure that the seizure of journalistic material is justified?” (“Question 2”)

2.  The application is opposed by the Commissioner of Police on the grounds that it is taken out of time unjustifiably; that the two points are new and not previously canvassed below or on appeal; that the matter has now become academic; and in any event, they are not reasonably arguable. By consent, the application is to be disposed of on paper without an oral hearing. Having considered the parties’ written submissions, we now hand down our judgment.

3.  For present purpose, we adopt the facts as summarised between [2] and [6] of the Judgment and the abbreviations used.

Criminal or civil?

4.  As a preliminary point which determines the applicable route for obtaining leave to appeal to the Court of Final Appeal, it is common ground between the parties that although civil appeal case numbers had been assigned to these appeals, they are criminal proceedings in nature. Thus section 32 of the Hong Kong Court of Final Appeal Ordinance which governs criminal appeals, as opposed to section 23 which concerns civil appeals, applies.

5.  We agree. In determining if an appeal is criminal or civil, the fact that it has had assigned to it a civil appeal case number is quite irrelevant. What is determinative is the nature of the underlying cause or matter in which it was brought: see So Wing Keung v Sing Tao Ltd & Another [2005] 2 HKLRD 11, and more recently Fu Man Kit v Superintendent of Tai Lam Correctional Institution [2022] HKCA 1657. Here, the underlying cause or matter is the 2022 Warrant, which was issued under the IR and executed in aid of the criminal proceedings, that is, HCCC 51/2022, that the applicant is facing. The only issue below and before us was whether on a proper construction, “specified evidence” in section 1 of the IR covers journalistic materials. It would determine the validity of the 2022 Warrant and would impact on the police’s investigation and the availability of such materials in the applicant’s two iPhones as evidence in HCCC 51/2022. Those matters are self-evidently criminal in nature. These appeals are accordingly criminal in nature as well. Thus the applicant is correct in invoking section 32 in pursuing this application.

Questions not raised before

6.  We will focus our discussion on two aspects which we consider to be dispositive of the application and start with the Commissioner’s objection that both Questions raise new points not previously canvassed before.

7.  As identified at the outset in the Judgment, the only issue below and before us was whether “specified evidence” in Schedule 1 of the IR covers journalistic material. At [8] of the Judgment, we summarised the applicant’s argument thus:

“[The] plaintiff contended that journalist material is essential to the freedom of expression and the freedom of the press as guaranteed under the Basic Law and the Hong Kong Bill of Rights. There are procedural safeguards provided for in Part XII of [the IGCO] to protect journalistic material from search and seizure based on public interest. When Schedule 1 was drafted, the principle that search and seizure of journalistic material must be protected by those procedures had already been firmly entrenched in our law. In order to interfere with the freedom of the press and/or deviate from those procedural safeguards, there must be express language or necessary implication. If there is no intention to deviate from that principle, then ‘specified evidence’ in section 1 cannot be construed to include journalistic material from its definition. Access to journalistic material would be left to the process in Part XII of the IGCO.”

8.  Question 1 asks if the search and seizure provisions in Schedule 1 of the IR are subject to the provisions of Part XII of the IGCO. On a plain reading, it raises the issue if Part XII applies to a search and seizure made under Schedule 1 and if yes, how. In substance, as rightly pointed out by Mr Suen SC, for the Commissioner,[4] the applicant is trying to argue that Part XII needs to be read together or “read into” Schedule 1. This is not only a completely new point or but also a total reverse of the applicant’s position. For Mr Pang SC, for the applicant, had all along maintained that he was not advocating such a case.

9.  Mr Dykes SC, for the applicant in this application,[5] submitted that the applicant’s case had all along been that on true construction of the IR, the search and seizure of journalistic material is subject to Part XII of IGCO. He referred to certain paragraphs of Form 86 in support. We disagree. Those paragraphs must be understood in context of the applicant’s case as advanced by Mr Pang, which makes it clear that the applicant was relying on them to support his construction of the IR that it did not cover journalistic materials because they were supposed to be governed by Part XII. That is what the phrase “the IR being subject to Part XII” in Form 86 means. In any event, whatever reading Mr Dykes might now attempt to ascribe to those paragraphs, the applicant must be bound by how Mr Pang had argued his case below and before us.

10.  It is a well-established practice of the Court of Appeal not to grant leave to appeal on new points not previously canvassed in the appeal proceedings before it: Ageas Insurance (Asia) Co Ltd v Lam Hau Wah Inneo, CACV 65/2014, 19 May 2015, at [7] – [9]. A fortiori, no leave should be granted to allow an applicant to raise a point which represents a total reverse of his position taken in the proceedings all along.

11.  Turning to Question 2, Mr Dykes submitted that it is not a new question and it is essentially the same question on which this Court invited the parties to make further submissions by a letter dated 21 September 2022, which they did. The Court held that the magistrate could decide the procedures to adopt for the balancing exercise. Mr Dykes contended that in the absence of clear criteria about how a magistrate is supposed to protect journalistic material without Part XII of the IGCO applying, the regime of Schedule 1 of the IR cannot satisfy the procedural requirements needed to protect the right to freedom of expression. He complained that we had failed to follow through in applying the principle of legality after accepting that it applied.

12.  By the said letter of 21 September 2022, we directed the parties to make further submissions thus:

“Having regard to the parties’ written submissions, the Court would like to have further assistance on the following questions:

Assuming that on a proper construction of Schedule 1 of the Implementation Rules, “specified evidence” in section 1 covers journalistic material and the magistrate has a judicial discretion based on public interest in deciding whether to issue a warrant under section 2:

1. In performing his judicial gate-keeping role, if the magistrate is aware of actual or potential claims based on journalistic material, can he impose a condition in the search warrant that the seized material be sealed until determination of such claims and give consequential directions? See Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372, at [73] and [74].

2. Can a person who is affected by the search warrant raise a claim based on journalistic material?

3. If so, how is such a claim to be determined?”

13.  We dealt with the questions with the assistance of the parties’ further submissions at [29] – [32] of the Judgment. There, we discussed them as a matter of principle. We did not dwell on the actual procedure that a magistrate should adopt in performing his judicial gatekeeping role based on public interest for two reasons. First, it must be a fact-sensitive exercise dependent on the actual circumstances of the case before the magistrate. Secondly and relevantly, it is not the applicant’s pleaded case in Form 86 that the magistrate had failed to perform the balancing exercise in issuing the 2022 Warrant. Indeed, at [41] of the Judgment, we rejected Mr Pang’s argument that there was no evidence to show that the magistrate had performed the balancing exercise based on public interest in issuing the 2022 Warrant as it was not the applicant’s pleaded case. Thus it was never an issue below or before us that the magistrate had failed to adopt proper or adequate procedure to ensure that the seizure of journalist material by way of the 2022 Warrant was justified. Had this issue been raised by the applicant, it would certainly necessitate filing of evidence and making of submissions so that the Judge below and this Court could resolve it properly.

14.  Thus analysed, Question 2 does raise a new fact-sensitive point not previously argued at all, materially affecting the course of evidence and the conduct of the case. According to well-established principle and practice, leave to appeal to the Court of Final Appeal should be refused: see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, and more recently Secretary for Justice v Timothy Owen KC and another [2022] HKCFA 23.

15.  Accordingly, we rule that the applicant has failed to make out a proper case for the grant of leave to the Court of Final Appeal in respect of both Questions as radically new points. His application for a certificate in respect of both Questions should be dismissed for this reason alone.

The intended appeals are academic

16.  Further, there exists an additional reason why we would dismiss the applicant’s application.

17.  It is common ground that the appeals have become academic, given that the applicant’s substantive claims on journalistic material were dismissed by the Judge on 30 September 2022,[6] against which he did not appeal, and the police had since accessed all the disputed items claimed to be such material. Furthermore, items which were agreed to be journalistic material were already accessed after the Judgment. In short, the underlying dispute of the intended appeals has ceased to exist.

18.  Mr Dykes argued that leave to appeal should nevertheless be granted exceptionally because, as he contended, the two points of law involve great public interest. However, in light of our refusal to certify Questions 1 and 2 because they are completely new points not previously canvassed before, this argument does not take the applicant’s case any further.

Delay

19.  Under paragraph 4 of Practice Direction 4.3, an application for certification should be made within 7 days of the handing down of judgment. Here, the Judgment was handed down on 19 October 2022, which means that the time limit fell on 26 October 2022. The applicant’s Notices of Motion, filed on 9 November 2022, were therefore 14 days out of time.

20.  The applicant explained the delay thus. At around the time of the Judgment, he and his family and lawyers were overwhelmed by multiple sets of proceedings. Primarily, he faced a criminal trial in HCCC 51/2022, in which he is liable to lengthy imprisonment if convicted. The trial was then fixed to start on 1 December 2022. He was tested COVID positive on 29 September 2022, and legal visits were suspended until 4 October 2022. Several notices of additional evidence were served on him from September to October 2022, including one on the same date as the Judgment. His overseas leading counsel was also admitted on the same date as the Judgment, and it was deposed that assisting leading counsel became a priority at the time, as the trial was less than 2 months away. Soon after the Judgment, he was also convicted in DCCC 349/2021 on 25 October 2022, and had to consider whether to appeal in that case, with the reasons for decision running to 156 pages.

21.  In opposition, the Commissioner pointed out that the applicant has engaged a sizable firm of solicitors, and at least three leading counsel and seven junior counsel to deal with all the proceedings he faced, and that many of the events referred to by the applicant would not significantly impede him in making the application for certification on time. In reply, the applicant reiterated the difficulties in facing multiple sets of proceedings, which were all moving forward in full speed from September to November 2022, with a trial set to begin on 1 December 2022.

22.  In our view, even assuming that the delay is not substantial and might be excusable, given our decision on the merits of the application, it will be futile to extend the time for making it.

Conclusion

23.  For the above reasons, we dismiss the two Notices of Motion with costs, to be taxed if not agreed, with a certificate for two counsel.