CHEUNG KA HO CYRIL v. SECURITIES AND FUTURES COMMISSION AND ANOTHER

HCAL 2132, 2133, 2134,

2136 & 2137/2018

[2019] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2132 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2133 OF 2018

______________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2134 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2136 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2137 OF 2018

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(Heard together)

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RULING ON APPLICATIONS TO FURTHER AMEND FORM 86

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INTRODUCTION

1.  These 5 applications for judicial review concern the legality or validity of a number of search warrants issued by magistrates and various production and seizure orders or decisions made by the SFC. Amongst the items seized include a number of tablets and mobile phones (“the Digital Devices”).

2.  The applications for leave to apply for judicial review were made on or about 5 October 2018.  On 8 and 9 October 2018, the Court directed that they be heard on a rolled-up basis.  On or about 19 October 2018, the Court granted to the Applicants leave to amend the Form 86.  Dates for the hearing were then fixed, about 6 months ago, on 29 January 2019. Shortly before the hearing, on or about 23 July 2019, the Applicants applied to further amend the Form 86 to raise a new issue, namely, whether the seizure and retention of the Digital Devices by the SFC would enable it to obtain not only past records of correspondence by way of emails or text messages, but also future correspondence received through the Digital Devices, and thus would give rise to an unlawful interception under Section 4(1) of the Interception of Communications and Surveillance Ordinance, Cap 589, or something akin to an interception in violation of the rights to privacy under BL 30 and HKBOR 14 achieved without a warrant.

3.  The applications to amend are opposed by the SFC on the grounds of (i) delay, (ii) absence of explanation for the delay, and (iii) prejudice.

4.  On the matter of delay, there is undoubtedly a substantial delay, having regard to the brief procedural history mentioned above.  The applications to amend were put in about a week before the hearing, when the parties ought to have been engaged in final preparation of submissions.  One also has to take into account the fact that the present applications raise substantial and complicated issues of law, and the parties should not be detracted by last minute applications raising further substantial issues.

5.  In relation to explanation for the delay, as pointed out by Mr Yu, SC, no affidavit has been filed to explain the delay.  From the Bar table, Mr Dykes, SC, informed the court that the new point was spotted by him about 2 weeks ago while he was preparing for the case, and this is not a situation where the point was held back by his junior. I accept that this was what happened, and shall take it into account.

6.  The most important issue, however, is whether allowing the amendments would cause prejudice to the SFC.  Mr Yu submits that if the new point is being allowed to be pursued, the SFC would need to put in evidence on, inter alia, the following aspects: (i) whether the seizure or retention of the Digital Devices would, as a matter of fact, enable the SFC to obtain not only past records of correspondence but also future correspondence, (ii) what the Applicants themselves could have done to prevent the SFC from obtaining the future correspondence, and whether they have already done so (eg by reporting the loss of a SIM card and obtaining a new one, or by closing an email account), and (iii) what the SFC would or could do to prevent access to future correspondence.  Mr Yu also confirms that the SFC has no intention to gain access to future correspondence anyway.  The court does not possess the necessary technical expertise to answer these questions.  In my view, there is at least a reasonable likelihood that evidence would be required to be adduced by the SFC in order to adequately answer the new point raised by the Applicants.

7.  Bearing in mind also the delay in the applications, I decline to allow the amendment applications and dismiss the 5 Ex Parte Summonses all dated 23 July 2019, with costs to the SFC with certificate for 2 counsel, to be taxed if not agreed.