WANG SHUITING AND OTHERS v. COMMISSIONER OF POLICE

HCAL 687/2022

[2022] HKCFI 3499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 687 OF 2022

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D E C I S I O N

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A.  Introduction

1.  This is another case arising out of the regime (“LNC Regime”) for the use of Letters of No Consent (“LNC”), and it raises issues significantly overlapping with those raised in and determined by me in my Judgment in Tam Sze Leung v Commissioner of Police [2022] 1 HKLRD 480.

2.  That Judgment is the subject of an appeal (“Appeal”) in CACV 152/2022, brought by the Commissioner. The Appeal will be heard by the Court of Appeal on 9 and 10 February 2023.

3.  The problem which arises relevant for present purposes is that I have fixed the substantive hearing in the present case for 24 February 2023, and it is recognised that it is at least unlikely that the Court of Appeal will have decided the Appeal by that date. Further, the Commissioner apparently requires further time to file evidence in the present proceedings.

4.  In those circumstances, the Commissioner has by summons dated 14 October 2022 made an application for:

(1)  the present proceedings to be stayed, and the time for the Commissioner to file evidence to be extended until 28 days after judgment has been given in the Appeal (“Stay Application”)

(2)  alternatively, an extension of time of 28 days for the Commissioner to file evidence (“EOT Application”). (Though it does not say so in terms, from the date of the order to be made

5.  The Applicants oppose the Stay Application and the grant of any stay, and also oppose the EOT Application stating that the Commissioner should at most be given a seven-day extension of time on an unless basis.

6.  By consent, the matter is being dealt with on the papers.

7.  This is my Decision.

B.  Procedural Background

8.  These Proceedings were commenced by Form 86 on 29 July 2022.

9.  On 1 August 2022, I granted leave to apply for judicial review, on the papers. The Applicants issued the necessary Originating Summons on the following day, 2 August 2022, and served the relevant papers on the Department of Justice (“DOJ”).

10.  On 30 August 2022, I ordered by consent (amongst other things) that the Commissioner should file and serve his affirmation evidence in opposition to the application on or before 27 September 2022.

11.  On 22 September 2022, I made a further order by consent extending the time for the Commissioner to file and serve his affirmation evidence in opposition to the application until 18 October 2022.

12.  On 10 October 2022, the DOJ wrote on behalf of the Commissioner to the Applicants’ solicitors to seek a further 28-day extension of time up to 15 November 2022. This was refused by the Applicants’ solicitors on 13 October 2022.

13.  On 14 October 2022, the Commissioner took out the present summons.

14.  It can be noted that the date relevant to the alternative relief of an extension of time of 28 days, if counted from the date of the summons, has already passed.

C.  Stay Application

15.  There is no dispute as to the applicable principles relating to the potential stay of proceedings, pursuant to the general and wide power granted by section 16(3) of the High Court Ordinance Cap 4. The Court should take into account the following matters: (1) what would serve the ends of justice as between the parties and the administration of justice generally; (2) whether a stay will cause injustice to the plaintiff/applicant; (3) whether continuing the proceedings would be unjust; and (4) that a plaintiff/applicant commencing proceedings as of right should not be deprived of the right to continue those proceedings in the absence of very good reasons.

16.  It is also settled that a stay of proceedings in an action may be granted if the outcome of a pending appeal in another action has, or is likely to have, a critical impact on the action even if it cannot be shown that the outcome of that appeal would be decisive or determinative of the action. Nevertheless, the power to stay must be exercised cautiously, and the Court’s ultimate task is to perform a balancing exercise to further the ends of justice as between the parties to the action, as well as the due administration of justice generally.

17.  Mr Peter Dong, Counsel for the Commissioner, submits that the relief sought in the Form 86 relates to the specific LNCs issued by the Commissioner in respect of the bank account of the Applicants, and that the overall purpose of the relief sought is for those LNCs to be quashed and for the Commissioner to provide consent to the Applicants to deal with the relevant funds.

18.  However, Mr Dong points out that a Restraint Order (“RO”) was granted against relevant accounts of the Applicants on 21 September 2022, and was varied on 10 October 2022 to cover accounts held by the 3^rd Applicant. As a result, the LNCs have been lifted. The RO will remain in force until 4 January 2023, unless varied or discharged by further order of the Court. After that date, the RO may be extended.

19.  As reliance is placed by the Applicants in this case on my Judgment (and the grant of relief) in the Tam Sze Leung case, Mr Dong submits that the judgment to be handed down in the Appeal in due course will have a critical impact on the present proceedings. In particular, the primary ground that the LNCs are ultra vires OSCO and incompatible with BL 6 and BL 105 would turn on the outcome of the Appeal.

20.  Mr Dong also suggests that, where the LNCs as regards the Applicants have been lifted, the dispute in the present proceedings has become academic, and the Court will not deal with academic disputes unless there is a good reason in the public interest for doing so. Further, in light of the RO, Mr Dong submits that there is no prospect for the Court to grant any relief for the Commissioner to provide consent for the Applicants to deal with their funds at this stage. On that basis, he says that there is no reason why the present proceedings should continue pending the Appeal.

21.  Mr Dong submits that there would be no prejudice to the Applicants by the grant of a stay. All these matters, says Mr Dong, point to the grant of a stay in accordance with the Stay Application.

22.  Mr Hectar Pun SC, leading Mr Anson Wong Yu Tat, for the Applicants submits that the degree of overlap between the present proceedings and the Tam Sze Leung case is not as great as suggested by the Commissioner. He points to the pleading in the Form 86 that the Applicants’ position is that, irrespective of whether Tam Sze Leung was correctly decided, the Commission’s failure to give consent to deal with the funds in the bank accounts of the Applicants is illegal, irrational and/or disproportionate in the circumstances of the present case.

23.  Mr Pun submits that is so because, as he puts it the circumstances of the present case are “much more egregious”, in the way he has explained in his submissions (referring in part to the fact that the LNCs in the present proceedings have been in place for a significantly longer period than those in the Tam Sze Leung case).

24.  Mr Pun also submits that the present proceedings have not become academic. The Applicants have taken out an application to discharge or vary the RO, which will be heard on 21 November 2022. In the event that the RO is discharged or varied, by specifying the maximum value properties prohibited from being dealt with, the present proceedings would have utility in the sense of preventing the Commissioner from continuing to resort to freezing the Applicants’ bank accounts to any ‘informal’ means, including the LNC Regime.

25.  Mr Pun also submits that there is good reason for the Court to determine the present proceedings. Indeed, what should have happened, says Mr Pun, is that the Commissioner should have accepted that the present application be allowed and should not have insisted on further prolonging the proceedings. As a result, because of the “deliberate flouting” (his words – which are, of course, not accepted by Mr Dong as being appropriate) of the declaratory relief granted by me in Tam Sze Leung, there is good reason in the public interest for the Court to declare and lawful and express public disapproval of the Commissioner’s persistence.

26.  All these matters, says Mr Pun, point to the proper refusal of the stay sought by the Stay Application.

27.  Whilst I see some force in Mr Pun’s submissions, I am ultimately persuaded on the balancing exercise required on the application of principle that the further ends of justice as between the parties and the due administration of justice generally require the grant of the stay. In short, this seems to me to be sufficient overlap between the present proceedings and issues which will be dealt with in the Appeal that the determination of the present proceedings should await the determination of the Appeal. Further, the present circumstances of the RO and the consequent lifting of the LNCs, seem to me to point more towards the grant of a stay than its refusal.

D.  EOT Application

28.  I am, however, not persuaded that the Commissioner’s filing of evidence in opposition to the application made by the Form 86 in these proceedings should be put off until after the Appeal has been determined.

29.  First, in the general approach to case management, it seems to me that it is more appropriate that the present proceedings are ‘ready to go’ as soon as possible after the determination of the Appeal. Secondly, on the basis of the matters previously stated on behalf of the Commissioner the preparation of that evidence should already have been completed. As already pointed out, the original extension sought in correspondence was until 15 November 2022, a date already past. Even the summons on this application sought only 28 days, which if counted from the date of the summons, would also have already passed.

30.  I see no reason to give the Commissioner a longer extension than seems even potentially generous in those circumstances. I therefore grant him an extension of time of 14 days. This means that the Commissioner’s affirmation evidence in opposition to the application in these proceedings is to be filed on or before 2 December 2022.

31.  Whilst I will not make that order on an ‘unless’ basis at present, I can put down a firm judicial marker that, against the matters stated on behalf of the Commissioner in correspondence, I would be both surprised by and instinctively resistant to any further request for extended time.

E.  Costs

32.  Though I have granted the stay and a short extension of time for the Commissioner to file his evidence, both matters might be seen as an indulgence to the Commissioner.

33.  My Judgment in Tam Sze Leung was given on 30 December 2021, long before the present proceedings were commenced on 31 July 2022. The Appeal from my Judgment had obviously also been launched long before the present proceedings were commenced. Therefore, to wait until 14 October 2022 to apply for a stay of the proceedings because of the existence of the Appeal seems to me to have been the result of some considerable delay.

34.  In addition, the application for the stay was made at the same time as the application for yet more time for the Commissioner to file his evidence.

35.  In the circumstances, it seems to me that the Commissioner should pay the costs of and occasioned by the Stay Application and the EOT Application. However, I shall not grant a certificate for two Counsel. The costs shall be payable forthwith, and subject to summary assessment which I shall perform on the papers.

36.  The Applicants should file a Statement of Costs for Summary Assessment by 25 November 2022, and the Commissioner should file any Statement of Objections by 2 December 2022. I will then perform the summary assessment.

F.  Consequential Matters

37.  As a result of the grant of the stay pending the Determination of the Appeal, I shall vacate the hearing fixed for 24 February 2023. Though it may not be possible to predict the date when judgment following the Appeal will be delivered, I shall tentatively re-fix the substantive hearing in the present proceedings for 25 April 2023 (with liberty to apply as to variation of that date).