SECRETARY FOR JUSTICE v. ST AND OTHERS

CAMP 290/2023, [2025] HKCA 575

On an intended appeal from [2023] HKCFI 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 290 OF 2023

(ON AN INTENDED APPEAL FROM HCMP NO 1297 OF 2022)

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JUDGMENT

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The Court:

I.     Introduction

1.  [ST] and     [SY], the 2^nd and 3^rd Respondents, seek leave to appeal against an order made by Campbell-Moffat J (“the Judge”) on 16 March 2023.  That order varied a Restraint Order which the judge had granted on 21 September 2022.  The Restraint Order was issued upon the Secretary for Justice’s application because the properties subject to the Restraint Order are believed (among other matters) to be the proceeds of an offence under the Organised and Serious Crimes Ordinance (Cap. 455) (“OSCO”).  The Restraint Order directed that      [ST] and     [SY] disclose certain financial details.  Paragraph 2 of the March 2023 order varied the extent of the financial disclosure to be made by      [ST] and     [SY].

2.  The grounds of appeal that      [ST] and     [SY] wish to raise are as follows:

(1)     The court lacked jurisdiction to order any disclosure in the September 2022 and March 2023 orders.

(2)     There is a double counting of the amounts      [ST] and     [SY] are jointly alleged to have received as illicit proceeds so that property in excess of the total value of such proceeds is being restrained.

(3)     The judge failed to specify a maximum value for the properties under restraint with the result that there may be “over-restraint”.

3.  The Judge refused leave to appeal by a Decision dated 7 August 2023 ([2023] HKCFI 1999).  We agree with her that none of the grounds of appeal are tenable and also refuse leave to appeal.

II.    Discussion

A.    1^st Ground of Appeal – Jurisdiction to order disclosure

4.  [ST] and     [SY] submit that the court lacks jurisdiction to order disclosure in support of a restraint order.  They argue that a disclosure order is by its nature intrusive and contrary the rule against self-incrimination.  Accordingly, in the absence of express words in OSCO conferring a power on the court to order disclosure, it cannot be presumed that the court has power by a disclosure order to interfere with the fundamental right of      [ST] and     [SY] to privacy.  It is notable (      [ST] and     [SY] observe) that, while OSCO section 15(12) permits a government officer to obtain documents or information from persons for the purpose of determining the value of their realisable property subject to a restraint order, OSCO says nothing about the court being able to direct general disclosure concerning a person’s realisable property.      [ST] and     [SY] concede that, in Re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 520, the English court held that there was an inherent power to order disclosure in aid of a Restraint Order.  They suggest, however, that the English court so concluded by analogy with the principles governing Mareva injunctions or freezing orders.  Such approach was wrong ( [ST] and     [SY] say) because, in contrast to a Mareva injunction, a Restraint Order constitutes “a carefully calibrated regime concerning the restraint and confiscation of assets in connection with criminal investigations”.  In any event, Re O (      [ST] and     [SY] assert) should be regarded as having been superseded in England by the Human Rights Act 1998.

5.  We are unable to agree. 

6.  Re O considered the English court’s power to make a disclosure order in support of a Restraint Order made under section 77 of the Criminal Justice Act 1988 (“CJA”).  Section 77 is similar to OSCO section 15.  As Lord Donaldson MR remarked in Re O (at 528E-F), the court must have been intended to have all ancillary powers needed to make a restraint order effective.  For instance, Lord Donaldson pointed out (at 528G-H) that, by CJA section 77(8) (analogous to OSCO section 15(7)), the court can appoint a receiver to take possession of realisable property, to manage or deal with such property, and to order a person having possession of such property to surrender the same to the receiver.  To be effective, such provision implies that:

“there must be some means of identifying and ascertaining the whereabouts and the value of assets affected by the restraint order...”

Common sense suggests that the relevant means would be through the making of disclosure orders ancillary to a restraint order.  Nor did Lord Donaldson think (at 530B-C) that the general power to order disclosure in aid of a restraint order was by itself contrary to the rule against self-incrimination.  It is always possible for the court to impose a condition that any disclosure pursuant to a restraint order cannot be used as evidence of an offence committed by the person subject to the restraint order.

B.    2^nd Ground of Appeal – Double-counting

7.  [ST] and     [SY] say that there is double counting giving rise to a restraint that is beyond what is strictly necessary. They note that, according to the Secretary for Justice’s evidence,      [ST] and     [SY] have thus far been charged with receiving illegal benefits amounting to HK$308,376,696.32 and HK$246,622,406.49 respectively.  However, HK$219,857,291.49 of the benefit ostensibly received by      [ST] was transferred into     [SY]’s bank account and constitutes the substantial part of the HK$246,622,406.49 benefit said to have been received by …  [SY]. There is consequently a double counting of HK$219,857,291.49.  The total value caught by the Restraint Order should instead have been no more than HK$335,141,811.32 (that is, HK$308,376,696.32 plus HK$246,622,406.49 minus HK$219,857,291.49).  The Judge thus erred in not limiting the scope of the Restraint Order to realisable property up to an aggregate value of HK$335,141,811.32. In so acting, the Judge acted disproportionately.

8.  We are not persuaded.

9.  Citing R v May [2008] UKHL 28 (see especially Lord Bingham at [34] and [41]-[47]), the Judge observed (at [15] of her August 2023 Decision) that “where money is received by one defendant on behalf of several defendants’ jointly, each defendant may .., be regarded as having received the whole of [the money] for the purposes of confiscation”.  We agree.  The corollary to this principle, at the restraint order stage, is that joint defendants may each be restricted from dealing with realisable property up to the aggregate value of the illicit benefits or monies involved.  This is because, prior to the determination of liability at trial, in cases where there is more than one defendant, it will not be known whether one or other defendant or all defendants will be found to have been jointly liable.  There is accordingly nothing unfair or disproportionate in      [ST] and     [SY] each being prohibited from dealing with realisable property up to the amount of the maximum benefit received through what is alleged to have been their joint enterprise.

C.     3^rd Ground of Appeal – Over-restraint

10.  [ST] and     [SY] contend that the Judge wrongly failed to specify a maximum value for the realisable property subject to the Restraint Order.  They submit that this means there is a potential for “over-restraint,” that is, prohibiting      [ST] and     [SY] from dealing with property having a greater value than that of the property which it is alleged they illegally obtained.

11.  We do not think that this ground of appeal has any prospect of success. 

12.  As already noted,      [ST] and     [SY] have respectively been charged with obtaining HK$308,376,696.32 and HK$246,622,406.49 worth of illegal benefit. So far, the Restraint Order has only caught property valued at HK$211,472,629.57 in respect of      [ST] and HK$204,282,444.37 in respect of     [SY]. This is well below the benefits which      [ST] and     [SY] are each charged with having wrongly obtained.  In those premises, while the Restraint Order does not specify a maximum value, it is difficult to see how the Restraint Order can be characterised as “over-restraint”.  In particular, no evidence has been adduced by      [ST] and     [SY] to establish that the Restraint Order will or will likely prohibit dealing with realisable property in excess of HK$308,376,696.32 in      [ST]’s situation or HK$246,622,406.49 in      [SY]’s situation.

III.     Conclusion

13.  By reason of the foregoing, leave to appeal is refused.  There will be an order nisi that the Secretary for Justice’s costs of and occasioned by      [ST] and     [SY]’s application for leave be paid by      [ST] and     [SY], to be taxed if not agreed.