"K" v. COMMISSIONER OF POLICE

HCAL 2643/2019

[2019] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2643 OF 2019

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D E C I S I O N

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1.  This is an application for leave to apply for judicial review. On 11 August 2019, the applicant suffered injuries to her right eye while in Tsim Sha Tsui, “after being hit by a suspected bean bag round shot by anti‑riot police” according to her Form 86. She subsequently learnt from Police press conferences that the Police had applied for a search warrant to obtain her medical records in relation to her admission into Queen Elizabeth Hospital on 11 August. Her solicitors wrote to the Police asking for, among other things, a copy of the warrant, but the Police has not provided it. Hence this application.

2.  The applicant was granted an anonymity order on 10 September 2019 on the basis of her evidence that she and her family members had been subject to doxxing and cyber‑harassment which would be likely to be aggravated by the disclosure of her full name (which, I was told, had not yet been published by any media).

3.  It is important at the outset to make clear what this application is not about.  This application is not about whether the police should have applied for the warrant, as to which judicial review would not have been the appropriate course; see Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372, where the Court of Appeal said:

“ 31 … the decisions of C&E to apply for warrants would not by themselves bring about substantive legal consequences, and as such they are not decisions amenable to challenge by way of judicial review, … It is all the more so after the warrants were granted by a judicial officer and the execution of the same. …

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44.  …we reiterate that it is not appropriate to challenge by way of judicial review the decisions of the C&E in making applications for warrants.”

4.  Nor is this application about whether the Magistrate should have granted the warrant.  That question will only arise, if at all, if and when the applicant takes action to impugn it.  It appears that, because the warrant has been fully executed, an application to set it aside would no longer be appropriate: Keen Lloyd, supra, at §§41‑42. Ms Draycott SC, who appeared for the putative respondent, said that the applicant should consider a civil action instead.

5.  The scope of the present application is very narrow, the decision challenged being identified as the Police’s “refusal to produce the warrants obtained from the Magistrate”. 

6.  Mr Pang SC put the applicant’s case on the basis that the warrant engaged the applicant’s right to privacy and refusing to provide a copy to the applicant had the effect of impeding her access to the court — a right she enjoys under Art 35 of the Basic Law — for the purpose of having it set aside.  Ms Draycott SC made brief submissions as to why the putative respondent has taken the stance that the warrant should not be provided to the applicant albeit there is no objection to providing her with certain information about it.  There is also a suggestion that public interest immunity may be involved.  Having heard brief arguments, I consider that there is an arguable case that merits fuller consideration, and that, applying the arguability test established in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, I should grant leave. Accordingly, I refrain from commenting further on the substantive arguments.

7.  In the Form 86 the applicant seeks two interim orders.  The first is an injunction to restrain the Police from the further reading, use and/or distribution of the applicant’s personal data obtained pursuant to the warrant until the resolution of proceedings to set aside the warrant.  Mr Pang accepted that any restraint should only last, at this stage, at most up to the substantive disposal of this judicial review application.  Ms Draycott helpfully indicated that the Police had no objection to sealing up the medical records obtained and not using them in the meantime, and offered an undertaking accordingly, albeit there is a concern about the delay that may be caused to the investigation and she therefore asked for liberty to apply.  It is consequently not necessary for me to rule on the merits of the application for interim injunction.

8.  The second interim order sought in the Form 86 is a mandatory injunction for the Police to provide to the applicant the warrant in question.  At the hearing, Mr Pang indicated that he would not pursue this interim relief.

9.  There will therefore be an order as follows:

(1) Leave be granted for the applicant to apply for judicial review on the Form 86 herein.

(2) The applicant do cause to be issued and serve on the respondent an originating summons in Form 86A forthwith.

(3) The respondent do file and serve his evidence in response within 14 days thereafter.

(4) The application for judicial review be listed for substantive hearing on an early date to be fixed in consultation with counsel’s diaries with an estimate of 1 day.  The parties should approach the court as soon as practicable with their proposed dates.

(5) On a nisi basis, costs be in the cause, with a certificate for two counsel.

(6) Liberty to apply.