METRONIC MULTIMEDIA H. K. LTD. v. COMMISSIONER OF CUSTOMS AND EXCISE

1998 HCAL No. 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The background

1. The history of this case is set out in the judgment which I delivered on 1st December. A proposed re-amendment to the Notice of Application has now been prepared. What is sought by that re-amendment is leave to apply for judicial review of the continued presence on the Company's premises of officers of the Customs and Excise Department, and of the detention of the production machines on the premises. The relief sought is a declaration that the officers' presence on the premises and the detention of the production machines on the premises has been unlawful, unreasonable and in excess of jurisdiction, and damages for trespass.

The arguments

2. The argument goes like this. The search warrant permitted the officers to enter and search the Company's premises. The Copyright Ordinance (Cap. 528) permitted the officers to seize, remove and detain articles which they found there, and which appeared to them to be likely to be evidence of an offence under Part II of the Ordinance. They had a reasonable time in which to remove from the premises those articles which they seized and which they proposed to detain. However, once that time had elapsed, they were no longer entitled to remain on the premises and they had to leave . As for the detention of the production machines, what is alleged is that there was no warrant for their detention in situ, and that their detention in situ is unlawful.

3. I know from the evidence filed on behalf of the Commissioner that his case is as follows. Among the articles seized were three video compact disc production machines. It was believed that they had been used to produce infringing video compact discs. However, there was a considerable risk of serious damage to those machines if they had been dismantled and removed by contractors who were unfamiliar with them. That was why it was decided to detain them in situ. But if they were detained in situ, the Company's staff could have had access to them. The Commissioner did not want that: if the very people who were suspected of using them to commit criminal offences had access to them, there was the danger that they would be used to produce more allegedly infringing copies of video compact discs. That was why it was decided that the officers should remain on the premises to prevent the production machines from being used. The evidence, though denied, is that one of the directors of the Company accepted the officers' right to be there.

4. The Company's response is that the Commissioner has no right to detain the production machines in situ. Therefore, since the officers are remaining on the premises because the production machines are being detained in situ, and since it is unlawful for the production machines to be detained in situ, the officers' continued presence on the premises is unlawful. I propose to give the Company leave to re-amend the Notice of Application, so that the question as to whether leave to apply for judicial review can be properly considered.

Leave to apply for judicial review

5. On that issue, it is important to note that there is no challenge to the legality of the detention of the machines per se. The challenge is to the legality of their detention in situ. Accordingly, the Company can have no legitimate objection to the dismantling and removal of the machines and their detention elsewhere. Mr. Gerard McCoy S. C. for the Company does not suggest otherwise. In these circumstances, the Company has two choices. The first is to permit the machines to be dismantled and removed from the premises, so that they will be detained elsewhere. The second is to permit the machines to be detained in situ, with the consequence that they will continue to be guarded by officers of the Customs and Excise Department. The one thing which the Company cannot insist upon is the machines remaining on its premises but not being guarded by officers from the Customs and Excise Department. Since the machines are being detained, and if at the Company's request they are being detained in situ, it is for the Commissioner to decide how they should be detained. I can discern no arguable basis for saying that if the Company chooses to permit the Commissioner to detain the machines in situ, it can dictate to him the way in which he does so. It is for him to decide whether the detention of the machines in situ requires for their security the presence of officers from his Department guarding them, and I can discern no arguable basis for saying that his decision that their detention does require that is Wednesbury unreasonable.

6. I return, then, to the only two choices which the Company has. Mr. McCoy told me at the last hearing - and he has confirmed it to me this morning - that the Company would prefer the machines to be detained in situ, albeit guarded by officers of the Customs and Excise Department, rather than for the machines to be dismantled, removed from the premises and detained elsewhere. This preference necessarily involves abandoning the claim that detention in situ is unlawful, because it would not be possible for the Company to select an option which is unlawful in preference to one which is lawful. Since the Company is in effect abandoning the only ground on which the legality of the detention of the machines, and the legality of the officers' continuing presence on the premises, is challenged, it follows that this application for leave to apply for judicial review of the continued presence of the officers on the premises, and the detention of the production machines on the premises, must be refused.