NEXT DIGITAL LTD AND OTHERS v. COMMISSIONER OF POLICE

HCMP 1217/2020,
HCMP 1218/2020,
HCMP 1221/2020,
HCMP 1222/2020,
HCMP 1239/2020 and
HCMP 1240/2020

[2021] HKCFI 1677

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1217 OF 2020

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1221 OF 2020

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1239 OF 2020

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1240 OF 2020

________________________

________________________

D E C I S I O N

________________________

A. INTRODUCTION AND OVERVIEW

1.  These proceedings first came before this court on 19 November 2020 (“19 Nov Hearing”).  At the 19 Nov Hearing, the following applications were adjourned for determination at the present occasion:

(1)  The Plaintiffs’ summonses for the amendment of the respective Originating Summonses (“Amendment Summonses”); and

(2)  The Plaintiffs’ summons in HCMP 1217/2020 (“HCMP 1217”) for interlocutory injunction (“1217 Injunction Summons”).

2.  The present hearing only concerns the Plaintiffs in HCMP 1217, 1218 & 1239-1240, 1221 and 1222 of 2020 (“Subject HCMP”) (“Subject Plaintiffs”), as (i) the Plaintiff in HCMP 1219/2020 did not put forward any amendment application (and whose attendance was excused) and (ii)the Plaintiff in HCMP 1220/2020 has withdrawn his amendment application.

3.  In this Decision, I shall first address the Amendment Summonses, before dealing with the 1217 Injunction Summons.

B.     AMENDMENTSUMMONSES

B1.    Overview and summary

4.  The intended amendments can be divided into the following categories, namely:

(1)  Lawfulness Challenge (in HCMP 1217, 1218, 1239-1240/2020): amendments which introduce a challenge against the validity of the relevant Search Warrant(s) on a myriad of grounds (references below are to paragraph numbers in the latest proposed Amended Originating Summonses):

(a)  HCMP 1217: §1

(b)  HCMP 1218: §§1A-1K

(c)  HCMP 1239: §§1A-1C

(d)  HCMP 1240: §§1A-(1^st) 1E^[1]

(2)  Return of the seized materials on grounds of irrelevance (all Subject Plaintiffs), in addition to the originally pleaded grounds based on legal professional privilege (“LPP”), journalistic materials (“JM”), and the scope of the Search Warrants. More specifically, there are two sub-categories:

(a)  Allegations of irrelevance of the seized materials to the offences which the Plaintiffs contend are not covered by the Search Warrant relying on the marginal note of the Search Warrant;

(i)  HCMP 1217: §1A(iv)

(ii)  HCMP 1221: §1A(d)

(iii)     HCMP 1222: §1A(v)

(b)  General allegations of irrelevance of the seized materials to the offences named in the Search Warrant;

(i)  HCMP 1217: §1A(ii)

(ii)  HCMP 1218: §1M(iv)

(iii)  HCMP 1221: §1A(d)

(iv)  HCMP 1222: §1A(iv)

(v)  HCMP 1239: §1D(ii)

(vi)  HCMP 1240: (2^nd) §1E(iii)^[2]

(3)  A new claim of trespass, conversion and/or detinue (all Subject Plaintiffs), with new prayers for damages and interest;

(a)  HCMP 1217: 2^nd paragraph; §§1C & 1D

(b)  HCMP 1218: 2^nd paragraph; §§1O & 1P

(c)  HCMP 1221: 2^nd paragraph; §§1C & 1D

(d)  HCMP 1222: 2^nd paragraph; §§1C & 1D

(e)  HCMP 1239: 2^nd paragraph; §§1F & 1G

(f)  HCMP 1240: 2^nd paragraph; (2^nd) §1C & (2^nd) §1D^[3]

(4)  A new prayer for interlocutory and/or final injunction(all Subject Plaintiffs), to restrain the defendant (the “Commissioner”) from accessing, reviewing and/or making any use of the seized materials which fall within the proposed categories for return of materials.

(a)  HCMP 1217: §1B

(b)  HCMP 1218: §1N

(c)  HCMP 1221: §1B

(d)  HCMP 1222: §1B

(e)  HCMP 1239: §1E

(f)  HCMP 1240: §1F

5.  In summary, the Commissioner opposes the proposed amendments at paragraphs 4(1), (2) and (4) above, because:

(1)  The proposed Lawfulness Challengeis outside the jurisdiction of this court in the present Originating Summons proceedings.  Further, it would be an abuse of process for the Plaintiffs in HCMP 1217/2020 (the “1217 Plaintiffs”) and the Plaintiffs in HCMP 1218, 1239 & 1240/2020 (the “Lai Family”) to attempt to introduce these public law challenges in the present proceedings circumventing the leave requirement of judicial review. 

(2)  The proposed prayer for return of materials on grounds of irrelevance amounts to an invitation to this court to undertake premature determination of the relevance of investigatory materials in an ongoing criminal investigation, and should not be allowed.

(3)  The proposed prayer for injunction is inappropriate and unnecessary.  Insofar as an interlocutory injunction is concerned, that is unworkable because it requires the court to conduct a screening process of seized materials as to what falls within the relevant return categories pending completion of the running of the Protocol (which is precisely for the purpose of the screening the materials).  Insofar as a final injunction is concerned, that is unnecessary because upon the completion of the running of the Protocol and any of the materials is determined or agreed to fall within a relevant return category, the relevant materials would be returned to them.

(4)  For all the above proposed amendments, they are doomed to fail.

(5)  For the avoidance of doubt, whilst the Commissioner does not oppose the proposed amendments at paragraph 4(3) above, such proposed claim involves factual disputes.  The Commissioner has reserved his right, depending on the state of evidence in future, to apply for conversion into a writ action where appropriate and/or necessary.

6.  The court shall deal with the above in turn.

B2.    Lawfulness Challenge

7.  The Commissioner submits that there are a number of difficulties with the proposed introduction of the Lawfulness Challenge.  In short, the relevant Plaintiffs have to satisfy the court that:

(1)  This court has the jurisdictionto rule on the Lawfulness Challenge and the Lawfulness Challenge is not an abuse of process; and

(2)  The purported unlawfulness grounds are, individually, not bound to fail.

8.  Against the above, the Commissioner submits that the 1217 Plaintiffs and the Lai family should not be allowed to mount the Lawfulness Challenge for the following reasons:

(1)  First, as a matter of legal principle, this court simply has no jurisdiction in these proceedings to entertain a challenge as to the lawfulness of a search warrant, as this falls within the exclusive purview of the judicial review procedure; 

(2)  Second, further or alternatively, as a matter of law and substance, it is an abuse of process for the relevant Plaintiffs to mount the Lawfulness Challenge in the present proceedings, given in particular (i) the significance of the question of lawfulness which is not merely incidental or collateral to the private law claims, and (ii) the clear need for the necessary safeguards to defendants under the judicial review procedure;

(3)  Third, as a matter of substance, the purported Unlawfulness Grounds are wholly devoid of merit.

B2(a).   Does this court have jurisdiction to entertain the Lawfulness Challenge?

9.  It is well-established that any challenge against the lawfulness of a search warrant is within the exclusive purview of judicial review. As illustrations:

(1)  Bell v The Chief Constable of Greater Manchester Police [2005] EWCA Civ 902: the claimant sought to challenge the validity of a search warrant in a private action, complaining of, inter alia, trespass as a result of an unlawful search (see §§25-26).  At §35, Sir Mark Potter P (sitting as the President of the Civil Division of the Court of Appeal) held in unequivocal terms that:

“Finally, I consider that the judge was right in any event to take the view that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review and that, as the judge held, Mr Bell's failure to appeal against the striking out of his claim that the warrant had been maliciously applied for, put paid to his efforts to attack the validity of the warrant before the judge.” (emphasis added)

(2)  R (ex p Goode) v Nottingham Crown Court [2013] EWHC 1726: the claimant challenged the validity of two search warrants issued by the Nottingham Crown Court.  The Divisional Court (consisting of Pitchford LJ and Burnett J, as the Lord Chief Justice of England and Wales then was) considered, obiter, the “Crown Court’s power to review the validity of a warrant” (§49).  At §50, it was noted that “[C]hallenges to the validity of a warrant to search and seize property were, before the 2001 Act, made and continue to be made in the Administrative Court and not in the Crown Court”, and a question arose as to whether the effect of section 59 of the Criminal Justice and Police Act 2001 (“2001 Act”) “handed to the Crown Court the jurisdiction to adjudicate upon the lawfulness of the issue of a warrant”. 

(3)  At §51, it was held by Pitchford LJ (with whom Burnett J agreed) that:

“The issue of a warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another. Stanley Burnton LJ expressed the view, obiter, in Dulai at paragraph 39 that the Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates court. With respect, I agree. It seems to me that the ground of challenge to seizure provided by section 59(3)(a) does not enable the applicant to challenge the validity of the warrant in the Crown Court. The challenge under section 59(3)(a) is not, in any event, limited to occasions when property has been seized in execution of a warrant. Section 19(1) of the 1984 Act gives limited power to a constable to seize certain property if he is ‘lawfully on any premises’. Section 18 enables a constable to search for evidence upon the premises of a person who has been arrested for an indictable offence. In my judgment, the term ‘there was no power to make the seizure’ describes either a seizure in excess of a statutory power of search or a seizure in excess of the power of search given by a warrant. It does not describe a seizure made under a warrant issued with judicial authority which might subsequently be quashed or declared unlawful by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court. Should the warrant subsequently be declared invalid, the Administrative Court may in the exercise of its discretionary powers order the return of the property seized, but when considering such an order it will no doubt have in mind that if property is retained as evidence in forthcoming criminal proceedings the Magistrates Court or the Crown Court can in appropriate cases use its discretion to exclude evidence improperly obtained; also, that the property would, if returned, immediately be the subject of a fresh application for a warrant or an order for production under paragraph 4 of schedule 1 (as to which see section 59(6) and (7) ).” (emphasis added)

(4)  Lees v Solihull Magistrates’ Court and Her Majesty’s Revenue & Customs [2013] EWHC 3779: the claimants sought judicial review of the grant of search warrants.  In allowing the application, the Divisional Court (consisting of Treacy LJ and King J) rejected the 2^nd defendant (HMRC)’s submission as to “the availability of an alternative remedy” viz the “availability of an application to the Crown Court for the return of the seized property under section 59 of the [2001 Act]” (§54).  In rejecting this submission, at §56, Treacy LJ (with whom King J agreed) applied Goode (supra) and held that:

“As to Section 59 of the 2001 Act, it is clear that the only forum for a challenge to the validity of a warrant is in judicial review proceedings. See R (Goode) v The Crown Court at Nottingham [2013] EWHC 1726 (Admin) at paragraphs 50-52. The legality of the warrant cannot be challenged in the Crown Court, and that court's powers do not extend to the quashing of a warrant or the granting of a declaration as to the unlawfulness of entry, search and seizure. In those circumstances I do not regard Section 59 as an available alternative remedy.”

(5)  R (ex p Chaudhary) v Bristol Crown Court [2015] 1 Cr App R 18: the claimant applied to a second judge at the Crown Court under section 59 of the 2001 Act to seek the return of items seized pursuant to search warrants granted by another judge of the same court.  In affirming the decision of the second judge that he had no jurisdiction to grant the application, the Divisional Court rejected an argument (as summarised at §38) that “judicial review is not the only means of challenging seizures pursuant to a warrant that is alleged to be bad on its face…that a court in a private law action for trespass to land and goods is entitled to make its own determination concerning s 15(1) [of the Police and Criminal Evidence Act 1984 (“1984 Act”)]”. 

(6)  Again, in unequivocal terms, Fulford LJ (with whom Nicol J agreed) at §61 applied, inter alia, Bell and Goode, in arriving at the clear conclusion that:

“In my view the jurisprudence on this issue is clear: the only route to challenge whether a warrant is lawful is by way of judicial review.  In particular, in Goode at [51] Pitchford LJ, having highlighted that it is a judicial act to issue a warrant, disavowed the notion that a court of equal jurisdiction has the power to invalidate the judicial act of another and he expressly approved the obiter dicta observation by Stanley Burnton LJ in Dulai that the Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates’ court (“…in cases in which there is a challenge to a relevant warrant, the claimant must bring proceedings for judicial review in the Administrative Court to quash the warrant…” at [37]).  In unequivocal terms, Pitchford LJ determined that a challenge to seizure under s 59(3)(a) “does not enable the applicant to challenge the validity of the warrant in the Crown Court”.  This matches entirely the decision of Sir Mark Potter P in Bell that the proper avenue to challenge the validity of a warrant is by way of judicial review.  For my part, I agree entirely with this approach, and whether or not some of these observations were, strictly speaking, obiter dicta, they undoubtedly reveal the correct approach–it is not open to a Crown Court judge on a s 59 application to decide that a warrant issued by another Crown Court judge was unlawful, whether the suggestion is that it was “bad on its face” or otherwise.  In either situation, this would constitute a challenge to the validity of the warrant and (to borrow the words of Pitchford LJ) a court of equal jurisdiction does not enjoy the power to declare invalid the judicial act of another.”  (emphasis added)

10.  Applying the above authorities, it is patently clear that any challenge as to the lawfulness of a search warrant can only be brought by way of judicial review proceedings. 

11.  Finally, it can be seen that the (unsuccessful) suggestion in the above cases that an alternative remedy is available (other than judicial review in the English Administrative Court) is premised on section 59 of the 2001 Act (which provides specific legislative mechanisms for applying to an appropriate judicial authority).  In the absence of similar provisions in Hong Kong, any challenge as to the lawfulness of the search warrants must a fortiori remain in the purview of judicial review. 

12.  Indeed, in DPP v T(DC) [2007] 1 WLR 209, Richards LJ and David Clarke J held that, in the context of an anti-social behaviour order against a defendant, which may be made by the county court, magistrates’ court or Crown Court, any issue as to the validity of the original order should be raised by way of an appeal against the order or a claim for judicial review, rather than as a defence to breach proceedings.

13.  Accordingly, on the above analysis, this court simply has no jurisdiction to entertain the Lawfulness Challenge by way of these ordinary civil proceedings. 

14.  This is based on well-established principle that any challenge against the lawfulness of a search warrant falls within the exclusive purview of judicial review.  This springs from the public nature of the remedy sought – a declaration of invalidity of the Search Warrants, which is by nature a public law matter.

15.  The 1217 Plaintiffs rely on Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 (CA) and K v Commissioner of Police and another [2020] 1 HKLRD 606 (CFI) and K v Commissioner of Police [2021] HKCA 523 (CA) in support of their contention that the validity of a search warrant may be challenged otherwise than by judicial review.  However, on closer analysis, I agree with the Commissioner that these cases do not assist them.

16.  The 1217 Plaintiffs’ Skeleton relies on the comment of the Court of Appeal in Keen Lloyd at §42 that, following the completed execution of the warrants in question (as applied by the Customs and Excise Department (“C&E”)):

“…there was no prospect of reversing the process in terms of the decisions of C&E in applying for the warrants and executing the same. Practically, the only reliefs that the applicants could obtain if they were successful in their challenges were injunctions (to restrain further misuse of documents and to procure the return of the documents) and damages. Notwithstanding public law issues being involved, these reliefs are also available in an ordinary civil action, see Richard Stone, The Law of Entry, Search and Seizure, 5^th Edn, paragraphs 3.106 to 3.110. In view of the delay in the commencement of proceedings and given the dispute of facts involved, it was more appropriate to proceed by an ordinary civil action.” (emphasis added)

17.  The above was referenced in the first instance decision of K v Commissioner of Policeat §48(3).

18.  However, as submitted by the Commissioner, Keen Lloyd and K must be read in their proper context:

(1)  First, as the underlined words in the passage cited at paragraph 16 above demonstrate, the remarks on the appropriateness to proceed by an ordinary civil action were made in relation to applications for injunction and damages, as opposed to applying to challenge the lawfulness of the warrants.

(2)  Rather, in Keen Lloyd at §29, it is made clear that there were at least four challenges brought in respect of the warrants in question: (i) the decisions of C&E to applying for the warrants; (ii) the decision of a magistrate in issuing the warrants; (iii) the execution of the warrants by C&E; and (iv) the provision of information and copies to the Mainland Customs.  An ordinary civil action to apply for injunctions and damages may not involve a challenge on the lawfulness of the warrant itself.

(3)  The court’s remarks at §45 (“an entry without consent (express or implied) and the seizure of materials will attract tortious liabilities in terms of trespass and conversion”) were similarly concerned with civil tortious claims following an unconsented entry and seizure, rather than a challenge against the lawfulness of the warrant itself.

(4)  Similarly, K (CFI) §48 does not advance the 1217 Plaintiffs’ case.  There, the court was merely summarising the potential legal redress a person may have against the “legality of the search and seizure” (not “the legality of search warrants”), namely, the options of: (i) applying to set aside search warrants granted on an ex parte basis; (ii) applying for judicial review “against decisions of magistrates to issue search warrants”; and (iii) taking out a civil action “for injunction to restrain use of the documents seized and to procure their return or for damages”.

19.  Hence, there is nothing in the authorities which supports the relevant Plaintiffs’ contention that the appropriate avenue for a public law challenge against the validity of a search warrant is by way of an ordinary civil action.

20.  The above is made clear when one considers Richard Stone, The Law of Entry, Search and Seizure (5^th ed) at §§3.106-3.110 (as cited by the Court of Appeal in Keen Lloyd):

(1)  §3.106 opens with the very broad and general remark that “there is a wide range of remedies available to the person whose premises have been entered, or whose property has been seized or damaged unlawfully” (emphasis added).

(2)  Likewise, the conclusion at §3.108 is in similarly broad terms, “[T]here seems little doubt that, even under the narrow approach, a claimant who has a strong case to argue in relation to trespass, conversion, or even negligence, will not now be prevented from proceeding by way of a civil claim even though the lawfulness of the actions constituting the alleged tort is to some extent dependent on a decision (for example, to issue a warrant, or to authorize an inspection) which would be susceptible to judicial review” (emphasis added).

(3)  Furthermore, in support of the proposition at §3.108, the learned author cites three decisions, namely R (ex p Fitzpatrick) v Chief Constable of Warwickshire [1998^[4]] 1 All ER 65; Webb v Chief Constable of Merseyside [2000] 1 All ER 209; and Costello v Chief Constable of Derbyshire [2001] 3 All ER 150.  It is clear that none of these authorities assists the Plaintiffs.

(a)  Fitzpatrick was an application for judicial review:

(i)  At 80c-e, it is said that:

“Judicial review is not a fact finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure in breach of section 16(8) should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles. In an appropriate case the court in a private law action is able to grant interlocutory relief on a speedy basis on well recognised principles so that in all but the clearest cases of a breach of section 16(8) judicial review has only disadvantages and no advantages when compared with the private law remedy.”

(ii)  It is clear from the passage itself that it is dealing with a situation of unlawful search by reason of “excessive seizure” in breach of a valid and lawfulsearch warrant.  That this is so is apparent from the wording of section 16(8) of the 1984 Act which is set out at 575D, namely “[A] search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued”.

(b)  Webb: the three plaintiffs in two actions brought proceedings for the return of money lawfully seized by the police on suspicion that it constituted the proceeds of drug trafficking.  Two of the three plaintiffs were not convicted of drug trafficking offences and the third was convicted of possession but no drug trafficking inquiry was undertaken.  The Chief Constable nevertheless sought to rely in the civil proceedings on evidence that the money did proceed from drug trafficking.  It was held by the Court of Appeal (in the course of this civil action) at 217j that “in each of these cases the police lawfully seized the money which is claimed, but their statutory power to retain it is exhausted”(emphasis added). 

(c)  Hence, this case simply has nothing to do with search warrants, let alone their lawfulness.

(d)  Costello: this is a very similar case as Webb. The action again concerned the right of the police to retain property seized pursuant to relevant statutory provisions.  Again, no question of warrant arises. 

21.  As to K v Commissioner of Police (Court of Appeal):

(1)  First, any supposed endorsement of the 1217 Plaintiffs’ position must be viewed with utmost caution.  This is so, in particular, given that, according to the leading judgment of Lam VP:

(a)  At §87: Counsel for the appellant “accepted…that it would have been possible for K to bring a judicial review on the present facts…”;

(b)  At §93, that the Court of Appeal was “not impressed” by the submission that the appellant “could not effectively bring an application to the magistrate to set aside the Warrants or alternatively bring an application for judicial review to challenge the issue of the Warrants on the ground of intrusion of her right to privacy” (emphasis added);

(c)  Thus, at §95, the court held that “it is clear that [the appellant] could have mounted legal challenge by way of application to set aside the Warrants or judicial review even without sight of the Warrants” (emphasis added).

(2)  In other words, in determining whether the appellant’s access to the courts has been impaired by reason of the fact that the subject search warrant had not been produced to her, the court’s main consideration was focused on whether she was prevented from applying to the magistrate to set aside the warrant or from bringing judicial review.

(3)  The present question was simply not engaged at all by the Court of Appeal.  The obiter remarks of Poon CJHC (within 2-3 paragraphs of a judgment agreeing with Lam VP) cannot be relied upon as support for the 1217 Plaintiffs’ proposition which flies in the face of, and is contradicted by, the well-established principle that public law challenge concerning the lawfulness of search warrants lie in the exclusive realm of judicial review.

(4)  In any event, it must be remembered that K v Commissioner of Police concerned the narrow question of the production of search warrants, prior to any challenge of the validity or the execution of the search warrants was even launched.  Thus, both the CA decision and the CFI decision did not and needed notdiscuss any question as to the proper forum for bringing challenges against the validity of search warrants in Hong Kong.

22.  Accordingly, I agree that neither Keen Lloyd, K, the text of Richard Stone, nor the cases cited therein, support any suggestion that the Lawfulness Challenge can be brought before this court as part of these private law proceedings.

B2(b).   Is the Lawfulness Challenge an abuse of process?

23.  Further or alternatively, the Lawfulness Challenge is caught by the well-established “Exclusivity Principle”.

24.  As a general rule, it would be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringes rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 of the Rules of the High Court (“RHC”) for the protection of such authorities: O’Reilly v Mackman [1983] 2 AC 237 at 285 per Lord Diplock. 

25.  According to Lord Diplock in the same decision:

(1)  A civil action can be struck out if it contravenes this general rule and is an abuse of process of the court (per Lord Diplock at page 285);

(2)  The reason for the general rule of procedural exclusivity is to give effect to the protection of public interest inherent in the judicial review procedure.  The uniqueness of the judicial review procedure lies in the procedural safeguards afforded to the public authorities.  The procedural safeguards identified expressly by Lord Diplock include:

(a)  The leave requirement for judicial review against groundless or unmeritorious claims (p 280);

(b)  The requirement for the applicant to come to court with full and candid disclosure of material facts (p 280);

(c)  A time limit of 3 months unless delay can be justified (p 281); and

(d)  The exclusion of automatic discovery (p 281).

(3)  Procedural exclusivity is only a general rule.  There are exceptions to this rule: “for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons” (p 285F per Lord Diplock) (emphasis supplied).

26.  The seminal decision of O’Reilly is cited in the Hong Kong Civil Procedure 2021 at Practice Note 53/14/31 (p 1151) for the proposition that there exists a “[general rule] requiring persons seeking to establish a public law wrong to proceed by way of judicial review and not otherwise.”  O’Reilly has also been widely and generally applied in Hong Kong.

27.  The rule in O’Reilly was recognised by the Hong Kong courts since at least the 1990s.  In Lau Wong Fat v Attorney General, both the Court of First Instance (Unrep, HCA 6016/1994, 18 November 1996) and the Court of Appeal ([1997] HKLRD 533) acknowledged that as a general rule it is contrary to public policy and is an abuse of the process for the court to permit a person who seeks to establish the decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action. 

28.  In Wong Fuk Tim v HKSAR Government and Others (Unrep, HCA 1008/2011, 12 October 2011), Lam J (as Lam VP then was) had this to say at §§6-11:

“6. The matters relied upon by the Plaintiff in his Statement of Claim are patently public law challenges. Yet, instead of proceeding by way of judicial review, the Plaintiff issued the writ in this action and in so doing he circumvented the usual procedure for advancing public law challenges in terms of seeking leave for judicial review under Section 27K(3) of the High Court Ordinance and Order 53 Rule 3 of the Rules of the High Court.

7. This is not a mere arid procedural point. On a leave application, the court will consider whether a challenge is reasonably arguable and whether the challenge has been mounted promptly. If a challenge is advanced later than three months from the date of the decision, requirement was explained by the Court of Final Appeal in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319. Chief Justice Li said at para 14,

‘Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges. Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.’

8. To the same effect is the judgment of Ma CJHC (as he then was) in Leung v Secretary for Justice [2006] 4 HKLRD 211 at para 21,

‘The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.’

9. Though there are exceptions as recognized by His Lordship at para 22, the general rule was stated as follows at para 21,

‘As a general rule, where the subject matter of an action involves public law, judicial review proceedings should be the norm.’

10. The same rule was stated by Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 at p 285D,

‘…it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means evade the provisions of Order 53 for the protection of such authorities.’

11.  The present case does not fall within any established category of exceptions to this general rule (and the Plaintiff did not argue that it does).” 

29.  I agree with the Commissioner’s submission that the rule applies with full force to render the Lawfulness Challenge in the present case an abuse of process.

30.  First, the starting point is the well-established position that a warrant issued by a magistrate is valid until and unless it is quashed.  See: McGrath v Chief Constable of the Royal Ulster Constabulary [2001] 3 WLR 312 at §§16-17 per Lord Clyde (with whom Lords Steyn, Browne-Wilkinson, Cooke of Thorndon and Hutton agreed):

“16. Of more direct relevance is one of the other cases to which we were referred, Hoye v Bush (1840) 1 Man & G 775. It was held in that case that an arrest was wrongful where the constable had applied for a warrant to arrest Richard Hoye, the warrant had been mistakenly issued in the name of John Hoye and the constable had arrested Richard Hoye. Thus a police officer cannot under a warrant arrest someone who is not named in it even although he knows the person intended to be covered by it. Tindal CJ observed, at 786: ‘It would be dangerous if a person whose office is wholly ministerial, were allowed to sit in judgment, and say who is the unnamed person intended by the warrant which he is required to execute.’ One principle which can be found in Hoye is that the person executing a warrant should follow and be entitled to rely on the face of the warrant. He may not act outside the terms of the warrant. That was what happened in Hoye. But he should not be held to have acted unlawfully if he carries out the instruction which appears from the face of the warrant. It is not for him to question that instruction if it is clear.

17. Warrants issued by a court of law require to be treated with the same respect as must be accorded to any order of the court. The general rule was stated by Romer LJ in Hadkinson v Hadkinson [1952] P 285, 288:

‘It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. ‘A person who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it...It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void–whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed’ (per Lord Cottenham LC in Chuck v Cremer (1846) Coop temp Cott 205, 338).’

That passage was followed in R v Oldham Justices, Ex p Cawley [1997] QB 1, where it was held that a prison governor did not require to question the order contained in a warrant of committal.” (emphasis added)

31.  The above was applied in the specific context of search warrants in Goode (supra) at §50 and Chaudhary (supra) at §51.

32.  Second, section 60 of the Police Force Ordinance, Cap 232 (“PFO”) provides that:

“In case any action is brought against any police officer for any act done in obedience to the warrant of any magistrate, such officer shall not be responsible for any irregularity in the issuing of the warrant or for any want of jurisdiction in the magistrate issuing the same and he may plead the general issue and give such warrant in evidence; and on production of the warrant and proof that the signature thereto is the handwriting of a person reputed to be a magistrate and that the act was done in obedience to the warrant, the jury or court shall find a verdict or give judgment for the defendant who shall also recover double his costs of suit.”

33.  In Mouncher v Chief Constable of South Wales [2016] EWHC 1367 (QB), it was held by Wyn Williams J (in respect of the similar section 6 of the Constables Protection Act 1750 (“1750 Act”)) at §§452-453 that:

“452. …The search warrants in question were issued by a magistrate. Mr Johnson accepts that such a decision is susceptible to a challenge by way of judicial review. He submits, however, that no civil action can lie against the defendant in respect of the searches because the warrants issued by the magistrate in respect of the homes of Mrs Coliandris and Mr Morgan have never been quashed. The quashing of the warrant, in the submission of Mr Johnson QC is a necessary pre-requisite to the bringing of a civil actionby virtue of Section 6 Constables’ Protection Act 1750. That Section is in arcane language and I do not propose to set it out in this judgment.

453. In the absence of any oral or written submissions to suggest that the analysis of Mr Johnson QC is incorrect I am disposed to accept it. Accordingly the Human Rights claim made by Mrs Coliandris in respect of the search of her home must fail.…” (emphasis added)

34.  Accordingly, the fundamental basis of the Lawfulness Challenge is the validity, lawfulness and legality of the Search Warrants.  This can hardly be said to be merely collateral or incidental to the private claims for damages based on trespass, detinue and conversion (applying, for example, Lau Shiu Ming v The Correctional Services Department (Unrep, HCMP 320/2000, 18 October 2000, at p 6).

35.  Indeed, as mentioned above at paragraph 9(5), the English Divisional Court in Chaudhary (supra) specifically rejected a submission “that a court in a private law action for trespass to land and goods is entitled to make its own determination” on the lawfulness of the search warrant. 

36.  Third, the procedural safeguardsof the judicial review mechanism must be reiterated, both generally and in the present specific context.

37.  Generally speaking, it is important to bear in mind the general safeguards which the Commissioner (and an authority in a comparable position in future cases) would be deprived of, if a private law action can henceforth be used as an alternative avenue to challenge the lawfulness of a search warrant:

(1)  In Leung v Secretary for Justice [2006] 4 HKLRD 211, Ma CJHC (as he then was) at 222H discussed the public interest underlying the judicial review procedure safeguards:

“21. …The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.” (emphasis added)

(2)  Similarly, in the context of discussing the leave requirement in the judicial review procedure, Li CJ made the observation in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at 326that:

“14. …[The leave requirement’s] purpose is to prevent public authorities from being unduly vexed with unarguable challenges. Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.” (emphasis added)

(3)  Therefore, the overalleffect of the procedural safeguards reflects the delicate constitutional balance and should be seen as giving effect to the public interest in good administration.  This was recognised by Lord Diplock in O’Reilly(supra) at 280:

“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.” (emphasis added)

38.  In the present specific case, particularly in the context of an on-going criminal investigation into, inter alia, a suspected serious crime under The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the “NSL”), it is a fortiori that safeguards such as the leave procedure remain in place.  The leave requirement thus serves a particularly important filtering purpose and prevents investigating authorities from being vexed with unmeritorious legal challenges that may result in undue delay in investigation and affect and compromise its effectiveness.

39.  In P v The Commissioner of the ICAC (2007) 10 HKCFAR 293 at §§45-48, where the CFA considered the permissible scope of challenge against an ex parte production order made under section 14(1)(d) of the Prevention of Bribery Ordinance, Cap 201 (“POBO”), the court was acutely aware of the need not to compromise the integrity and effectiveness of investigation in crimes such as corruption, and emphasised (at §48) that “it is important for the court to deal with any application on this ground in a way which does not affect the integrity and effectiveness of the investigation, bearing in mind that undue delay in investigation may well affect its effectiveness”. 

40.  The same canplainly be said (and with even greater force) in relation to the investigation of cases concerning offences endangering national security:

(1)  In HKSAR v Tong Ying Kit [2020] HKCFI 2196, Alex Lee J recognised at §15 that offences endangering national security involve “conducts with strike at the foundation of the “One Country, Two Systems” upon which the very existence and stability of Hong Kong as a Special Administrative Region depends” and that “grave harm that can be done if the national security is put at peril” (emphasis added); and

(2)  According to NSL Article 42(1), which spells out the positive duties of the law enforcement and judicial authorities in handling cases concerning offence endangering national security expeditiously so as to ensure the effective prevention, suppression and punishment of acts and activities endangering national security:

“香港特別行政區執法、司法機關在適用香港特別行政區現行法律有關羈押、審理期限等方面的規定時，應當確保危害國家安全犯罪案件公正、及時辦理，有效防範、制止和懲治危害國家安全犯罪。” (emphasis added)

The duties of the law enforcement and judicial authorities to effectively prevent, suppress and punish acts and activities endangering national security and thereby safeguarding national security effectively are also emphasised in NSL Articles 3(3) and 8.

41.  In the premises, I accept that the Exclusivity Principle must apply with full force in the present case, such that the Lawfulness Challenge is ruled to be an abuse of process and should not be allowed to run.

42.  The 1217 Plaintiffs attempt to answer the Exclusivity Principle by contending that:

(1)  It is “highly questionable” whether the “Exclusivity Principle” remains good law;

(2)  The “Exclusivity Principle” has “no application” given “(a) the limited public law element, (b) the collateral nature of the Unlawfulness Challenge and (c) the established legal position that such a challenge to search warrants can take the form of an ordinary civil action”.

43.  In relation to their first argument, the reliance on R v Employment Secretary, Ex p EOC [1995] 1 AC 1 at 34C does not assist, where Lord Lowry merely aired his sentiment that “I have never been entirely happy with the wide procedural restriction for which O’Reilly v Mackman…is an authority, and I hope that that case will one day be the subject of your Lordships’ further consideration” (emphasis added).  Hence, so far as such a well-established principle is to be capable of being revisited and disturbed at all, this is clearly an exercise to be undertaken at the highest level.  The current position in Hong Kong is as summarised above.

44.  In relation to their second argument:

(1)  First, a lawfulness challenge against a search warrant is squarely and clearly a public law matter.  The self-serving assertion of “limited public law element” is entirely baseless.

(2)  Second, the collateral challenge exception to the Exclusivity Principle has no application on the facts of the present case.  The Plaintiffs do not need to have the search warrant declared unlawful to seek return of materials or to claim for damages against the Government.  Rather than being a collateral challenge, the proposed Unlawfulness Challenge is a separate and standalone challenge to the other proposed reliefs sought in the Originating Summonses.

(3)  Third, the alleged “established legal position that such a challenge to search warrants can take the form of an ordinary civil action”has been addressed above.

45.  It is difficult to understand the assertion that “none of the public law protective mechanism can be said to have been evaded”.  By commencing the present action by originating summons and not by way of a judiciary review, the 1217 Plaintiffs effectively bypassed the need to obtain leave.  This includes the requirement for promptitude (Order 53, rule 4(1) of the RHC), and the need to satisfy the court upon a full and frank disclosure that the proposed grounds for review are reasonably arguable (which is a higher hurdle to surpass than that application for leave to amend an originating summons).  Had the proceedings been properly brought by way of judicial review (which was never the case), leave would in all probabilities have been refused as the application is short on merits (to be further dealt with below). 

46.  Further and importantly, they are now grossly out of time if they are to apply for leave to bring judicial review proceedings at this instant (which is likely to be fatal).  Faced with such fundamental flaw, it is now belatedly sought to “convert” these HCMP proceedings into a leave application.  In this regard, the date of the original Originating Summons is a red-herring, because the original Originating Summons did not raise any Unlawfulness Challenge.  The suggestion to “convert” these proceedings into a leave application was only first raised in the 1217 Plaintiffs’ Skeleton dated 12 May 2021.  This constitutes serious undue delay. 

47.  Fundamentally, the suggestion in the 1217 Plaintiffs’ Skeleton is not an option open to them to circumvent the procedure to apply for leave to bring judicial review out of time (where well-established principles apply: see: eg AW v Director of Immigration [2016] 2 HKC 393 at §27(3)).  None of the authorities cited (whether in Hong Kong or elsewhere) suggest that the court can “direct proceedings begun by originating summons…be continued as if it was by way of an application for leave for judicial review”.  That no authority has been found for such a bold proposition is unsurprising:

(1)  First, the requirements of obtaining leave to commence judicial review proceedings are not mere formalities.  The failure to comply with such requirements are clearly not mere irregularities.

(2)  The safeguards of the important filtering function of the leave requirement are of significance (see paragraphs 37 to 40 above).

(3)  Finally, suffice it to repeat what was said by Andrew Cheung J (as the Chief Justice then was) in Right to Inherent Dignity Movement Association v HKSAR Government and Others (unrep, HCAL 104/2008, 31 October 2008) at §57:

“In my view, the challenge against the rule in O’Reilly v Mackman is a highly relevant argument to the challenge against the Order 53, rule 3 leave requirement for launching judicial review proceedings. If public law proceedings could be commenced in the High Court as an ordinary action by writ or originating summons, rather than by way of an application for judicial review, the justification for requiring leave to be obtained before an application for judicial review could be mounted would arguably disappear, because the commencement of an ordinary action does not require the obtaining of leave.” (emphasis added)

48.  It is also wrong to suggest that there is “no real prejudice to D”.  To permit a recipient of a search warrant to mount a public law challenge of the lawfulness of the warrant almost a year after the issuance and execution of the same would wreak havoc to law enforcement in Hong Kong.  If a proper application for leave for judicial review out of time is to be taken out now, the Commissioner would be entitled to oppose leave and adduce evidence and make submissions on the detriments to good administration.  Of course, no such application is before this court.

49.  The Lai Family advances the same arguments as those raised by the 1217 Plaintiffs, which have already been addressed above:

(1)  In relying on English cases on search warrants, the Commissioner allegedly failed to have regard to “the comprehensively distinct statutory regimes regarding powers of arrest, entry, search, and seizure, and the judicial structure of England and Wales”;

(2)  “The flexibility in transferring actions between judicial procedures is now common”;

(3)  As with the 1217 Plaintiffs, the Lai Family seeks to rely on the Court of Appeal’s remarks in Keen Lloyd at §§42-43.

50.  In addition, the Lai Family also argues that it is more appropriate to resolve the present dispute by civil proceedings in light of the “risk of factual disputes” and “the potential need for a range of remedies”.

51.  However, I agree with the Commissioner that the existence of factual dispute is not a reason to depart from the Exclusivity Principle.  In Trim v North Dorset District Council [2011] 1 WLR 1901, Carnwath LJ (as he then was, with whom Laws LJ and Patten LJ agreed) said at §§24-25 that:

“24. Nor do I find in the textbooks support for the suggestion that the existence of factual disputes is a reason for an exception to the exclusivity principle. The need to resolve such disputes does not often arise, because of the nature of most judicial review proceedings. But, when it does arise, it does not create any particular conceptual or procedural problems. The permission stage gives the court full control of the proceedings. It may give any necessary directions for the attendance of witnesses and cross-examination (CPR r 8.6(2)(3)), not disapplied by CPR r 54.16…

25. It is true that in the Dilieto case [2000] QB 381, 394 e-g Sullivan J referred to the possible shortcomings of judicial review proceedings to resolve factual disputes. However, that was in a different context, in which he was comparing that procedure with the alternative of the magistrates' court. If, which I doubt, he was intending to imply that judicial review cannot effectively cater for such disputes where they arise, I would respectfully disagree.” (emphasis added)

52.  The issuance of warrant is clearly a public law act.  There is strong public interest in its validity, if in issue, being challenged promptly and properly.

53.  For the reasons stated in Section B2(a) above, none of the grounds advanced by the relevant Plaintiffs answers the question of jurisdiction.  Hence, in the absence of jurisdiction, this court clearly cannot entertain the intended amendments. 

54.  Further or alternatively, for the reasons stated in Section B2(b) above, the Lawfulness Challenge, being an attempt to circumvent the “Exclusivity Principle”, amounts to an abuse of process.  Given the importance of judicial review safeguards, coupled with the pertinence of not compromising the integrity and effectiveness of criminal investigations (see: P v Commissioner of ICAC), especially in the NSL context, the “Exclusivity Principle” must apply with full force to prevent abuse.

B2(c).    Is the Lawfulness Challenge bound to fail?

55.  As the court agrees with the Commissioner’s position on “lack of jurisdiction” and the Lawfulness Challenge being an “abuse of process”, it is not strictly necessary to consider the merits of the proposed amendments.  This is discussed as a matter of completeness.

56.  In summary, the Commissioner submits that the 1217 Plaintiffs and the Lai Family are attempting to introduce a scattergun attack on the validity of the warrants.   The Commissioner submits that the proposed grounds of challenge are in fact trivial, pedantic and clearly untenable on the facts or as a matter of law.  They are doomed to fail and should not be permitted to proceed.

57.  Unlawfulness Grounds 1 to 7 were put forward at the 19 Nov Hearing.  Since then, the 1217 Plaintiffs have sought to introduce two further grounds:

(1)  That the Warrant was applied for on information laid by a Senior Inspector of the Commercial Crime Bureau (“CCB”), rather than an officer in the National Security Department (“NSD”) (“Additional Unlawfulness Ground 1”);

(2)  That the Warrant failed to show that the Chief Magistrate (as opposed to the relevant Inspector) was satisfied that there is reasonable ground for suspecting that any specified evidence is in the place (“Additional Unlawfulness Ground 2”).

58.  The grounds are grouped by the Commissioner into the following categories for the purpose of analysis:

(1)  Marginal Note Challenges – There are two varieties:

(a)  Unlawfulness Ground 1: As the marginal note of the warrant cites PFO section 50(7), the coverage of the warrant of the Collusion Offence (an NSL offence) is said to be unlawful;

(i)  HCMP 1218 §1A (First Warrant)

(ii)  HCMP 1240 §1A (1240 Warrants)

(b)  Unlawfulness Ground 2: As the marginal note cites Schedule 1 of the NSL Implementation Rules, the coverage of the Conspiracy Offence (a common law offence) is said to be unlawful.

(i)  HCMP 1217 §1(3) (TKO Warrant)

(ii)  HCMP 1218 §1F (TKO Warrant)

(2)  Particularity Challenges – The relevant search warrants are said to be unlawful because they allegedly fail to expressly refer to:

(a)  Unlawfulness Ground 3: “specified evidence” under Schedule 1 to the NSL Implementation Rules and the authority to search for the same under rule 2 of Schedule 1;

(i)  HCMP 1217 §1(2) (TKO Warrant)

(ii)  HCMP 1218 §1B (First Warrant); §1G (TKO Warrant)

(iii)  HCMP 1240 §1B (1240 Warrants)

(b)  Unlawfulness Grounds 4 and 5: the particulars and dates of the offence under investigation;

(i)  HCMP 1217: §§1(4), (5) & (6) (TKO Warrant)

(ii)  HCMP 1218: §§1C & 1D (First Warrant); §§1H & 1I (TKO Warrant)

(iii)  HCMP 1239: §1A (1239 Warrant)

(iv)  HCMP 1240: §1C (1240 Warrants)

(c)  Additional Unlawfulness Ground 2: the fact that the Chief Magistrate was satisfied that there was reasonable ground for suspecting that any specified evidence was in the place.

(i)  HCMP 1217: §1(1) (TKO Warrant)

(3)  Digital Devices Challenge – The relevant search warrant is said to be unlawful because it authorises the search and seizure of personal mobile communication devices along with other materials (Unlawfulness Ground 6).

(a)  HCMP 1218: §1E (First Warrant) & §1J (TKO Warrant)

(b)  HCMP 1239: §1B (1239 Warrant)

(c)  HCMP 1240: §1D (1240 Warrants)

(4)  Take and Sift Challenge – The execution of the search warrant is said to be unlawful because instead of sifting through the materials on the spot, the Police officers took them away for examination at places other than the premises specified in the warrants (Unlawfulness Ground 7).

(a)  HCMP 1218: §1K (First Warrant and TKO Warrant)

(b)  HCMP 1239: §1C (1239 Warrant)

(c)  HCMP 1240: 1^st §1E (1240 Warrants) ^[4]

(5)  Post of Informant Challenge – The relevant search warrant is said to be unlawful because the Police officer who laid the information was posted in the Commercial Crime Bureau rather than the National Security Department of the Police (Additional Unlawfulness Ground 1).

(a)  HCMP 1217: §1(1A) (TKO Warrant)

B2(c)(i).  Marginal Note Challenges - Unlawfulness Grounds 1 & 2

59.  I agree with the Commissioner’s submission as follows, in short:

(1)  First, it is wrong to assume that the PFO section 50(7) power cannot cover NSL offences and therefore the warrants citing PFO section 50(7) must be unlawful when it covers the Collusion Offence.

(2)  Second, the suspected Conspiracy Offence was part and parcel of an ongoing investigation into offence endangering national security.  The 1217 Plaintiffs’ assertions as to the relevance (or the lack thereof) of the investigatory materials to particular offences are but their speculations and bare assertions.  As observed by Chan CJHC (as Chan PJ then was) in Apple Daily Ltd v Commissioner of the ICAC (No 2) [2000] 1 HKLRD 647 at 680G-H, “some materials by themselves may not be considered as evidence at a particular stage of the investigation but their relevance and importance will only become clear when considered in conjunction with other materials gathered at some other stage of the investigation”.  The 1217 Plaintiffs are assuming that the materials in the present proceedings form the entirety of the evidence gathered by the Police in their relevant investigations.  Their speculation, based on such a narrow view of the matter, cannot be given any material weight.  It also ignores the fact that Police investigations are of course still ongoing and evolving.

(3)  In any event, insofar as the intended challenge is directed against the lawfulness of the search warrants, then at least on the 1217 Plaintiffs’ case the relevant point in time for the purposes of this enquiry should be the state of police investigation at the time when the search warrants were issued,as opposed to any subsequent state of affairs (such as the prosecution for the “fraud” case, or such other progress of investigation by the Police, which are in any case subject to ongoing investigations).  As such, the 1217 Plaintiffs’ proposed reliance on an SCMP article dated 6 May 2021 is entirely irrelevant for the purposes of this enquiry.

(4)  Third, in executing a warrant, the Police is empowered under the common law to reasonably take and detain goods which they come upon and reasonably believe to be material evidence in some other crime. 

(5)  Fourth, the Police is vested with power both under the NSL and the PFO in investigating offences against national security and is entitled to invoke both powers in their investigations.  But for the marginal note, there is nothing on the face of the warrants to suggest that the Police and the Chief Magistrate were not exercising their power under both the NSL and the PFO.  Indeed, the content of the TKO Warrant is identical to the other warrants issued under the PFO, and the body of the warrant referred to both the offence of Collusion and Conspiracy to Defraud, indicating that the Police and the Chief Magistrate were intending to exercise the same powers when making those warrants. 

(6)  Thus, at best, the 1217 Plaintiffs have a complaint that the marginal note in the relevant warrants was defective.  This, I agree, is a mere technical defect which cannot affect the validity of the warrant. 

(7)  Fifth, in relation to the TKO Warrant, given that its wording in fact mirrors the precise wording of section 50(7) of the PFO, the Chief Magistrate must have, at the very least, directed himself to the enquiry under inter alia section 50(7) of the PFO.  Thus, given the foregoing and bearing in mind that the court should look to the substance rather than the form, by issuing the TKO Warrant as it is, the Chief Magistrate was invoking inter alia the measures under s 50(7) of the PFO.

B2(c)(ii).   Particularity Challenges

60.  There is a distinction between what is desirable to be included in a warrant and that which if absent renders a warrant invalid.  A warrant is valid as long as it contains the basic details provided for in the statute.  Once such distinction is recognised, it is clear the relevant Plaintiffs’ proposed contentions are doomed to fail.

Express reference to “specified evidence” and s 2 of Sch 1- Unlawfulness Ground 3

61.  I agree with the Commissioner that there is no substance in the complaint:

(1)  First, there is no requirement in either Schedule 1 to the NSL Implementation Rules or PFO section 50(7) that the definition of “specified evidence” must be expressly set out. 

(2)  Second, the requirements for a valid warrant under Schedule 1 to the NSL Implementation Rulesare clearly satisfied on the face of the TKO Warrant itself.

(3)  Third, if anything, because of the way that the TKO Warrant is framed, the Commissioner has (on this occasion and without prejudice to future cases) applied for a more limited form of warrant than would otherwise be available under Schedule 1 of the NSL Implementation Rules.

(4)  Fourth, so far as the difference in wording between the TKO Warrant and the empowering provision (ie Schedule 1 of the NSL Implementation Rules) can be characterised as any defect at all, this clearly cannot be a sufficient basis to nullify or render unlawful the TKO Warrant.

(5)  Fifth, insofar as the other relevant warrants are concerned (ie the 1218 First Warrant and the 1240 Warrants), they expressly restricted the seizure to materials which are “likely to be of value” to the investigation of (inter alia) the relevant offence.  This sufficiently conveys the scope of the search, which is the same in substance as “specified evidence” under Schedule 1 of the NSL Implementation Rules (defined as “anything that is or contains, or that is likely to be or contain, evidence of an offence endangering national security”).

62.  The Commissioner does not quarrel with the suggestion that “the statutory requirements must be strictly applied and the search and seizure be carefully scrutinizied”.  However, at the same time, such general remarks must be read subject to the well-established positions that:

(1)  “If the empowering statute does not require any particular form for the warrant, it would be held valid so long as it contains the basic details which are provided for in the statute” (Apple Daily (No 2) at 674I-J).

(2)  Because of the “uncertainties and difficulties” which occur within the context of applying for search warrants, “officers are not expected to be very precise and exact on what they are looking for and seize upon a search.  They are even less expected to decide quickly what may in law constitute evidence for use in a future prosecution.  If too strict and literal a construction is given to a power of search or seizure, this may tamper the effectiveness of an investigation.  In order to make a search and seizure operation meaningful, a fair balance has to be struck between the interest in bringing criminals to justice and the interest of protecting citizens' right and privacy”: Apple Daily (No 2) at 680H-I per Chan CJHC.

(3)  Thus, it has subsequently been held that a pragmatic approach is to be adopted in assessing the sufficiency of information, and the difficulty of the officer to specify a particular piece of information to be relevant should be recognised especially when an investigation is at its initial stage: Y v The Commissioner of the Independent Commission Against Corruption [2020] 4 HKC 206 at 215C.  Emphasis is placed on the desirability of a construction which leads to practical justice: Lee Chu Ming Martin and Others [2020] HKCFI 2028 at §126 per Alex Lee and Coleman JJ.

(4)  Hence, the central point of the analysis is that Schedule 1 to the NSL Implementation Rules does not provide any specific form for the warrant.  As to the submission that the warrant issued thereunder “must” specify a number of details, this is neither supported by the wording of rule 2 of Schedule 1 of the NSL Implementation Rules northe above authorities on warrants generally. 

(5)  Insofar as the 1217 Plaintiffs rely on their speculation that the seized items under the TKO Warrant cannot be relevant to the Collusion Offence and hence the scope of seizure went beyond the scope of “specified evidence”, that is, again, pure speculation as to the details of the investigations and confidential contents of the information laid before the Chief Magistrate.

Particulars and dates of offences - Unlawfulness Grounds 4 & 5

63.  In short, I agree that they too are devoid of merits:

(1)  As a general principle, as discussed above, if the empowering statute does not require any particular form for the warrant, the warrant would be held valid so long as it contains the basic details which are provided for in the statute: Apple Daily (No 2) at 680H-I.  Neither section 50(7) of the PFO nor Schedule 1 of the NSL Implementation Rules provide for any prescribed form for a search warrant.  The only remaining question before the court is whether the relevant Search Warrants contain the basic details provided for in the empowering statute.

(2)  In considering this issue, the courts have repeatedly emphasized that it may be impracticable to be specific about the offences at the investigation stage and secrecy considerations may come into play (which would be a fortiori in criminal investigations in the NSL context).  Hence, it is desirable to adopt a construction that leads to practical justice. 

(3)  Unlawfulness Ground 4 relates to the TKO Warrant for the Collusion Offence under NSL Article 29.  There is no dispute that the TKO Warrant specifically referred to the said offence.  The complaint is that it did not go on to spell out which of the “offences” under NSL Article 29 is relied on.  Such argument is I agree premised upon an erroneous interpretation of NSL Article 29.  The various “limbs” under NSL Article 29 are different possible acts which can constitute the Collusion Offence instead of “separate offences” as alleged by the 1217 Plaintiffs. 

(4)  Unlawfulness Ground 5 is concerned with the search warrants with respect to the Conspiracy Offence.  The warrants contain all the basic requirements as identified by G Lam J (as G Lam JA then was) in K v Commissioner of Police at §46, namely:

“…it must be an authorisation directed to the police; it must specify the premises to be searched; it must specify the offence that has been committed or reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, to the investigation of which the articles sought are likely to be of value; it must indicate the articles which are sought; and it must show that the magistrate is satisfied there is reasonable cause to suspect that there is in the specified premises such articles likely to be of value to the investigation.” (emphasis added)

64.  The 1217 Plaintiffs pray in aid (i) Re Ip and Willis (Unrep, HCMP 1472/1989, 8 August 1989); (ii) Alder [1997] AJ No 756, a decision of the Alberta Supreme Court; (iii) Re United Distillers Ltd [1946] BCJ No 134; and (iv) the decision of High Court of Australia in Smethurst (2020) 94 ALJR 502.

65.  I agree with the Commissioner that they do not assist the Plaintiffs:

(1)  Re Ip and Willis is clearly distinguishable from the present case.  The search warrant in Re Ip and Willis did not specify the precise offence, and merely mentioned “an offence referred to in section 10 of the Independent Commission Against Corruption Ordinance”.  Section 10 of the ICACO in turn provides at section 10(5) a number of “offences…specified for the purposes of subsection (2)”.  In reaching the conclusion that the description of the offence is too general, Sears J specifically pointed to the fact that “Section 10 contains a large number of offences ranging from perverting or obstructing the course of the justice, to theft, evading liability by deception, making off without payment etc.  This warrant was silent as to the particular offence” (p 11).

(2)  As mentioned above, there is only one single offence under NSL Article 29, that is the Collusion Offence.  The existence of different possible acts which can constitute the offence under NSL Article 29 does not detract from the fact that the relevant Search Warrants have clearly identified NSL Article 29 as the relevant offence in question.  There is no requirement at law that the Search Warrants themselves must specify any particular limb of possible acts under NSL Article 29 to be valid and lawful. 

(3)  In the circumstances, the requirement that “[t]he warrant should describe the alleged offence in respect of which the search is authorised so as not to mislead the reader as to the nature of the alleged offence”is clearly satisfied: Re Ip and Willis at p 9.

(4)  Alder, Re United Distillers and Smethurst are not decisions by the English or Hong Kong courts.  These cases must be approached with caution as the relevant empowering statute may be very different. 

(5)  The search warrant in Alder is issued under section 443 of the Criminal Code of Canada, which requires a magistrate “to be satisfied by information upon oath, not only that the informant suspects and that he has just and reasonable grounds to suspect, but also setting forth the causes of suspicion in order that he may be able to judge whether the case is a proper one to grant his warrant for search or not” (§3).  That explains why the Alberta Supreme Court held that a search warrant issued under the Criminal Code of Canada has to disclose “how the alleged offence of fraud took place” (§38). There is no such requirement under the empowering statues in the present case.

(6)  Re United Distillers, which is also a Canadian case, should also be distinguished on the same basis.

(7)  More importantly, the principles governing the validity requirements of a search warrant in these jurisdictions are different from those set out in the Hong Kong cases.  In this regard, as Chow J (as Chow JA then was) and Alex Lee J cautioned in Tong Ying Kit v HKSAR [2020] HKCFI 2133 at §47, overseas cases “must, of course, be read in the context of the relevant constitutional regimes and the specific provisions under challenge, and cannot be applied to Hong Kong directly”.  For example, in Smethurst, the Australian Court took the view that the warrant has to state particulars including “[the party] to whom the document or article was said to have been communicated” (§32).  These are clearly particulars of offences which are not required to be stated under Hong Kong law: K v Commissioner of Policeat §46.  As such, the reasoning in Smethurst has no direct application to search warrants governed by and granted under Hong Kong law. 

66.  For reasons set out above, the contentions advanced by the 1217 Plaintiffs based on Alder, Re United Distillers and Smethurst should not be entertained.  Furthermore:

(1)  The scope of search is dependent upon the facts of the case and the exigencies of the investigation in question.  That it covers a smaller or larger area or fewer or more entities is neither here nor there.

(2)  On a plain reading of the TKO Warrant, it is clear that the documents or records of the 19 companies “are likely to be value (whether by itself or together with anything else) to the investigation of [the two offences]”.  That is the information that was required to be conveyed to the recipient of the search warrant.  It needs not provide information to enable speculations as to targets of the ongoing investigations. 

(3)  In any event, the Commissioner is entitled to rely on public interest immunity: Apple Daily (No 2) at 663E, 664B per Keith JA. It is nonsensical to suggest that details provided in an affirmation should have been included in a search warrant.

67.  The Lai Family in their submissions also submitted that the offence is not “sufficiently indicated”.  This really adds no more to the arguments put forward by the 1217 Plaintiffs.

68.  As to the Plaintiffs’ disagreement over the technical nature of the so-called defects:

(1)  Again, there is no real quarrel by the Commissioner with the need to construe an empowering statutory provision strictly.

(2)  However, over-emphasis on form (above substance) is against the authorities, including Chan CJHC’s pertinent remarks in Apple Daily (No 2).  Further, at 666E-667B, Keith JA cited and adopted Lord Hoffmann’s remarks that “it would be wrong” to create “formal requirements for the validity of a warrant which the statute did not impose”.  Unfortunately, this is precisely what the 1217 Plaintiffs are seeking to invite this court to do.

(3)  In addition, there is no answer to the principles derived from Apple Daily (No 2) namely, inter alia, where the technical defects “have caused little or no prejudice to the applicants…it would be wrong to treat them as punishable by invalidity of the entire search”. 

69.  As to the assertion that the Commissioner’s submission as to the construction of the TKO Warrant as being “circular, non-sensical and wholly devoid of merits”, again the 1217 Plaintiffs’ submission misses the point.  The fact of the matter is, one needs to construe as a matter of substance the Chief Magistrate’s grant of the TKO Warrant.  As discussed above, where the wording of the TKO Warrant tracks the wording of section 50(7) of the PFO, it confirms that the Chief Magistrate would have been satisfied (at the very least) that the PFO requirements had been satisfied.  The marginal note or the subjective intention of the Commissioner is neither here nor there.

70.  As regards the 1217 Plaintiffs’ further new complaint that the TKO Warrant failed to show that the Chief Magistrate was satisfied that “there is reasonable ground for suspecting that any specified evidence is in the place” (ie Additional Unlawfulness Ground 2), again, it is clearly doomed to fail:

(1)  Rule 2(2) of Schedule 1 to the NSL Implementation Rules provides that a magistrate may issue a warrant “if the magistrate is satisfied by information on oath that there is reasonable ground for suspecting that any specified evidence is in the place.”  In considering the police officer’s application, the Chief Magistrate must have directed himself to the aforesaid requirement.  It goes without saying that, by his very act of issuing the Warrant, he must have been satisfied by the information laid before him that the requirement under rule 2(2) was met.  If the Chief Magistrate was not so satisfied, he would have refused to grant the TKO Warrant. With respect, this is a highly pedantic complaint.

(2)  In Attorney General of Jamaica v Williams [1998] AC 351, the Privy Council held that the issuer of the warrant should be presumed to have acted in accordance with what is required of him under the Statute.  Lord Hoffmann cited the following passage in Forte JA’s judgment with approval (361H-362A):

“The justice of the peace, having issued the warrants on the basis of the ‘information on oath’ must have been so satisfied, and it is not open to the court, in the absence of the details of what transpired before the justice of the peace, to assume he acted contrary to what is required of him in the Act. For those reasons I would hold that the search warrants were lawfully issued.” (emphasis added)

(3)  In fact, the same approach was adopted in IRC v Rossminster Ltd [1980] AC 952, where the court rejected a similar challenge (with Lord Salmon dissenting).  As Lord Wilberforce observed at 1000A-B, such complaint is “technical” and “irrational”:

“There is no mystery about the word “warrant”: it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal.  The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power.  It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity.  To complain of its absence in the present case when, as is admitted, no challenge can be made as to the satisfaction, in fact, of the judge, would be technical and indeed irrational.  I can find no ground for holding these warrants invalid.”  (emphasis added)

(4)  Likewise, Lord Scarman considered that it is desirable for a warrant to make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with, but he made it clear that the omission “was not fatal to the validity of the warrants” (1024D).

(5)  It should be noted that the TKO Warrant is a standard form warrant.  As Lord Wilberforce pointed out in Rossminster Ltd, a warrant is simply a document issued by a person after having been satisfied that the statutory conditions are met.  There is no requirement under rule 2(2) of Schedule 1 of the NSL Implementation Rules that the warrant must contain a statement to point out the obvious, ie that the magistrate was satisfied that the statutory conditions are met. 

(6)  Reference is made to Lord Salmon’s dissenting opinion in Rossminster Ltdby the 1217 Plaintiffs.  However, the dissenting speech does not assist the 1217 Plaintiffs, as the majority clearly took the view that the absence of a statement of satisfaction on the part of the judicial authority does not affect the validity of a warrant.

B2(c)(iii).  Digital Devices Challenge -Unlawfulness Ground 6

71.  Unlawfulness Ground 6 is concerned with the search and seizure of digital devices which may be personal mobile communications devices along with other materials.  In essence, the Lai Family is arguing that a “separate warrant” is required for the contents of such digital devices.

72.  This can be disposed of shortly.  The answer is that Schedule 1 to the TKO Warrant specifically provided for “business records, accounting documents, personnel documents, digital documents, digital devices, company kit or any other articles relating to the business operations of the following companies”. It plainly authorised the search and seizure of both the physical digital devices and the digital documents therein.

73.  The Lai Family’s contention is based on a clearly wrong reading of the Court of Appeal’s decision in Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529.

B2(c)(iv).   Take and Sift Challenge - Unlawfulness Ground 7

74.  Unlawfulness Ground 7 concerns the taking away from premises of materials seized.  In this regard, the reliance by the relevant Plaintiffs on R v Chesterfield Justices, ex p Bramley [2000] QB 576 is misguided. 

B2(c)(v).  Post of Informant Challenge - Additional Unlawfulness Ground 1

75.  This is a new complaint which was not before the court at the 19 Nov Hearing. 

76.  I agree with the Commissioner that this proposed Ground is doomed to fail as a matter of law.  It is incorrect that NSL only confers power on police officers posted in the NSD to apply the measures under the first paragraph of NSL Article 43:

(1)  NSL Article 43 and Schedule 1 of the NSL Implementation Rules have to be read as a whole.

(2)  It is clear from the second paragraph of NSL Article 43 that the measures stipulated in the first paragraph of NSL Article 43 were to be applied by law enforcement authorities not limited to the NSD.  The second paragraph of NSL Article 43 provides that “[the Committee] shall be responsible for supervising the implementationof the measures stipulated in the first paragraph of this Article by law enforcement authorities including the department for safeguarding national security of the Hong Kong Police Force.”  (The Chinese authentic text: “香港特別行政區維護國家安全委員會對警務處維護國家安全部門等執法機構採取本條第一款規定措施負有監督責任。”) (emphasis supplied)

(3)  It is also clear from the third paragraph of NSL Article 43 that the phrase “the measures stipulated in the first paragraph of this Article” (“本條第一款規定措施”) refers to the powers under the first paragraph of NSL Article 43(1) to (7).  The third paragraph of NSL Article 43 authorises the Chief Executive, in conjunction with the Committee, to make the NSL Implementation Rules for the purpose of applying “the measures under the first paragraph of this Article”.  The NSL Implementation Rules were then accordingly made, with its 7 Schedules each dealing with one measure under the first paragraph of NSL Article 43(1) to (7), including Schedule 1 concerning search warrants.

(4)  The above is reinforced by the wording of Rule 2(1) of the NSL Implementation Rules (“A police officer may, in accordance with Schedule 1, exercise the power to search places for evidence” “警務人員可按照附表1所訂，行使以下方面的權力：為搜證而搜查有關地方”), as well as rule 2(1) of Schedule 1 which similarly refers to “a police officer” as opposed to an officer in the NSD.

77.  Accordingly, I agree that all grounds of the proposed Unlawfulness Challenge are clearly devoid of merits.  This is a further reason why the amendments should not be permitted to be introduced, in addition to the want of jurisdiction and/or the breach of the Exclusivity Rule.

B3.    Delivery-Up/Return/Injunction

78.  In addition to the originally pleaded LPP, JM and Out of Scope grounds, the Subject Plaintiffs have raised, inter alia, the following new prayers in their Draft Amended Originating Summonses:

(1)  New plea for return of materials on grounds of irrelevance (see paragraph 4(2) above); and

(2)  New prayer for interlocutory and/or final injunction (see paragraph 4(4) above).

79.  The Commissioner has made the following observations on the Subject Plaintiffs’ amendment applications in general:

(1)  It has been said that the Amendment Summonses are merely “clarifying” the original Originating Summonses.  This is clearly not the case as the proposed amendments include (i) deletion of previous pleas and (ii) adding new pleas. 

(2)  Indeed, if the sole purpose of the Amendment Summonses is to “clarify” the original cause of action or relief sought, then the proposed amendments are unnecessary.  These matters are already clear from the original plea.  It is not necessary to revise the subject Originating Summonses to include legal arguments. 

(3)  Insofar as the proposed amendments are addition of new pleas, the court should not order a pleading to be amended “unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”: Order 20, rule 8(1A) of the RHC.

(4)  For reasons set out below, the above proposed amendments are bound to fail even taking the Plaintiffs’ proposed pleaded case to the highest, and thus leave to amend should not be granted: Hsu Ming Chi v Lam Shu Chit (Unrep, HCCL 8/2013, 22 October 2014) at §15.

80.  Insofar as LPP and JM are concerned, the request for immediate delivery-up has been overtaken by events.  Following the Commissioner’s LPP Direction Summons, a Protocol for joint inspection has been laid down for the parties to identify items which are subject to LPP and/or JM.  The joint inspection is now in progress. 

B3(a).   New prayer for return of materials on grounds of irrelevance

81.  This head of complaint can be divided into the following two subcategories:

(1)  Allegations of irrelevance of the seized materials to the offences which the Plaintiff contends are not covered by the Search Warrant relying on the marginal note of the Search Warrant;^[6]

(2)  General allegations of irrelevance of the seized materials to the offences named in the Search Warrant.^[7]

82.  Under both subcategories, the Plaintiffs are essentially asking this court to predetermine the question of relevance before the criminal investigation comes to an end.  This is impermissible.  In short:

(1)  There is no basis for a law enforcement agency to deliver up or return materials seized as part of an ongoing police investigation subject to completion of investigation and criminal proceedings: Apple Daily (No 2) at 680C-E; 680F-I.  

(2)  By seeking any sort of directions to determine the question of relevance, the court is being asked to impede on existing criminal investigation, and to carry out the impossible task of determining at this stage what are and what are not relevant materials for an on-going criminal investigation.  This should not be allowed: Faisaltex Ltd v Chief Constable of Lancashire Constabulary [2009] EWHC 1884 (QB) at §§ 10, 19-26.

83.  There is no answer provided to this impermissible approach by the Subject Plaintiffs.

B3(b).   New prayer for interlocutory/final injunction^[8]

84.  I agree the proposed amendment serves no useful purpose and is not necessary for determining the real question in controversy between the parties:

(1)  Insofar as an interlocutory injunction is concerned, that is overtaken by events because the treatment of all seized materials (save for HCMP 1239-1240/2020 where no LPP claim is asserted) are now covered by the Protocol as ordered by the court on 19 November 2020 and varied on 26 February 2021 (see §§3 & 4 of the Annex to the Protocol on “Extraction and Access”).  To the extent the Plaintiffs are now asking for a new requirement that the Commissioner be somehow restricted from accessing the part of the materials to which he may have access under the Protocol pending the final resolution of the Originating Summonses, that is in effect and in substance an application for variation of the Protocol (through the backdoor) that should not be allowed. Further, such interlocutory injunction is in any event circular and unworkable, because it requires the court to conduct a screening and determination exercise as to what falls within the relevant categories for return in the interim pending the resolution of these proceedings which are for the very purpose of conducting such screening and determination.  In effect, I agree that such interlocutory injunction would only have the effect of paralysing criminal investigations in the interim, which is also contrary to both the spirit and letter of the Protocol currently in place.

(2) Insofar as a final injunction is concerned, that is unnecessary because upon the resolution of the Originating Summonses in these proceedings, materials which ought to be returned would be returned according to the court's determination or parties’ agreement as to the relevant claims.

85.  The Plaintiffs also seek an injunction to restrain the Commissioner from accessing, reviewing and/or making any use of the seized materials which fall within the proposed categories for return of materials.  Again, this suffers from the same deficiency as discussed above.

86.  Moreover, I agree that this court cannot be asked to grant any injunctive relief against the Commissioner acting in his official capacity.

87.  Section 16 of the Crown Proceedings Ordinance, Cap 300 (“CPO”) provides that:

“(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Ordinance, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that—

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2)  The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.”

88.  Section 2 of the CPO provides that:

“civil proceedings includes proceedings in the Supreme Court or the District Court for the recovery of fines or penalties, but does not include proceedings of a nature such as in England are taken on the Crown side of the Queen’s Bench Division of Her Majesty’s High Court of Justice;”

“(4) Any reference in Part IV or V of this Ordinance to civil proceedings by or against the Crown, or to civil proceedings to which the Crown is a party, shall be construed as including a reference to civil proceedings to which the Secretary for Justice, or any Government department, or any officer of the Crown as such, is a party.” (emphasis added)

89.  Further, following the resumption of sovereignty in 1997, pursuant to paragraph 2, Schedule 8 of the Interpretation and General Clauses Ordinance, Cap 1, the reference to “Crown” under the CPO shall be taken to be a reference to the Government of the HKSAR.

90.  The following Hong Kong cases have referred to section 16 of the CPO:

(1)  In Hall v Commissioner of the Independent Commission Against Corruption [1987] HKLR 210, the Court of Appeal held that section 16 precludes the granting of an injunction against the Crown.  It is to be noted that Hall is a judicial review application(at 212G).  The remedy sought by the plaintiff includes three declarations and one injunction.  It was observed by Cons VP at 213D that:

“The Attorney General, who has appeared in this Court for the Commissioner, observes that the final part of the relief granted is in effect an injunction against the Crown, a relief precluded by s 16 of the Crown Proceedings Ordinance (Cap 300). Mr Litton who has appeared throughout for Mr Hall, has not argued against that observation, but the crux of the appeal is the correctness of the three declarations.”

(2)  In Supreme Finance Ltd v Wan Hang Trading Ltd and Others (Unrep, HCA 11877/1983, 12 August 1983), Mr Commissioner Lee Q C held that the court does not have jurisdiction to order the Director of Immigration to put the name of an individual on the stop list.  The relevant words in the order proposed by the applicant was that “The bailiff shall upon information by the Director of Immigration that...the 2^nd Defendant...is passing through a point of immigration...”.  Mr Commissioner Lee Q C refused to grant the order, at p 18:

“All the Director of Immigration is required to do is to render assistance to the bailiff if so called upon to assist him to arrest and deliver the 2^nd Defendant to the debtors' jail. Miss Yuen submitted that the Director ought, upon the service on him of the proposed order, to put the 2^nd Defendant's name on the stop list. I do not agree. The proposed order does not require him to do so; and the court has no power to direct him to do so by virtue of section 16(2) of the Crown Proceedings Ordinance.”

(3)  In Fung Man Ying Doris t/a Good Fit Garment Factory v Chief Bailiff of the Supreme Court of Hong Kong & Anor [1980] HKC 454, Rhind J refused an application for interim injunction against the court bailiff for wrongful seizure of its goods.  At 459E, it was held that:

“Secondly, insofar as the plaintiff’s application for an interlocutory injunction was concerned, this was a complete non-starter all along. The plaintiff was, in effect, seeking injunctive relief against the Crown or Crown servants, a type of remedy ruled out by the provisions of s 16 of the Crown Proceedings Ordinance.” (emphasis added)

(4)  Further, Rhind J refused the application of the plaintiff for an interim declaration against the court bailiff:

“Nor could the plaintiff achieve the same result by seeking, in effect, an interim declaration against the Crown, or its servants, for that is a form of remedy unknown to the law. (See Constitutional and Administrative law (3^rd Ed) by SA de Smith at 607).” (at 460A)

(5)  In Wong Tsz Jam v Commissioner of Police [2008] 5 HKLRD 164, the Court of Appeal dismissed an interim injunction application against the Commissioner of Police and the Secretary for Justice.  While the court discussed the American Cyanamid principles and held that the injunction would have been dismissed, the Court of Appeal also dismissed a constitutional challenge against section 16 of the CPO.  At §§43-48:

“43. 本庭認爲，就記錄受查人士的個人資料是否有違反《香港人權法案》第14條須視乎情況。即使有任何認真的爭論，考慮到損害賠償及包括公共利益的相對方便的衡量，撇開《官方法律程序條例》而論，拒絕非正審強制令是對的。

44. 至於《官方法律程序條例》，第16條適用於由官方提出或針對官方提出的任何民事法律程序。

45. 根據《官方法律程序條例》第2(2) 條釋義：

「民事法律程序」包括為追討罰款或罰金而在最高法院或地方法院進行的法律程序，但不包括性質屬假若在英格蘭則於女皇陛下高等司法院皇座法庭公訴部進行的法律程序；

46. 皇座法庭的公訴部 (Crown side of the Queen's Bench Division) 是指皇座法庭處理刑事及君主特權轄權(prerogative jurisdiction)的部分，有別於處理民事訴訟的申訴部分(plea side) (見Jowitt’s Dictionary of English Law (2^nd ed, 1977))。

47. 《官方法律程序條例》第16條只適用於由官方提出或針對官方提出的任何民事法律程序，屬私法範疇。根據《高等法院條例》(第4章)第21K條及《高等法院規則》(第4章,附屬法例)第53號命令第3(10)(b)條規則，法庭可於司法覆核(即舊有的君主特權轄權)的程序中向官員發出正審與非正審強制令，屬公法範疇。其實，有關對官員濫用權力或行事偏頗的指稱屬於公法範疇。

48.  顯而易見，第16條的立法意圖在於官方一向尊重法庭的裁決，法庭向官方發出宣佈各方權利的命令已足夠，毋須發出強制令。這與強制令屬酌情權是相符的。”

91.  Therefore, to draw the threads together, section 16 applies to preclude the court from granting any form of injunctions against the Government, interlocutory or otherwise, at least in private law proceedings.

92.  Relying on In re M [1994] 1 AC 377 (HL), the Plaintiffs argue that injunction could be obtained against an officer personally although he had been acting in his official capacity.  I agree with the Commissioner’s submission that the passages relied on by the Plaintiffs are cited out of context:

(1)  The scope of section 21 of theCrown Proceedings Act 1947 has been explained in Lord Woolf’s judgment at 412E-G:

“Where, prior to 1947, an injunction could be obtained against an officer of the Crown, because he had personally committed or authorised a tort, an injunction could still be granted on precisely the same basis as previously since, as already explained, to grant an injunction could not affect the Crown because of the assumption that the Crown could do no wrong. The proceedings would, however, have to be brought against the tortfeasor personally in the same manner as they would have been brought prior to the Act of 1947. If, on the other hand, the officer was being sued in a representative capacity, whether as an authorised government department, for example, one of the named Director Generals, or as Attorney-General, no injunction could be granted because in such a situation the effect would be to give relief against the Crown. The position would be the same in those situations where proceedings would previously have been brought by petition of right or for a declaration but could now be brought against the authorised department.” (emphasis added)

(2)  In sum, where an officer is sued in his personal capacity, an injunction could be obtained against him.  But where he is sued in a representative capacity, no injunction should be granted.  Such proposition is consistent with Lord Woolf’s analysis at 409H-410B:

“The position so far as civil wrongs are concerned, prior to the Act of 1947, can be summarised, therefore, by saying that as long as the plaintiff sued the actual wrongdoer or the person who ordered the wrongdoing he could bring an action against officials personally, in particular as to torts committed by them, and they were not able to hide behind the immunity of the Crown. This was the position even though at the time they committed the alleged tort they were acting in their official capacity. In those proceedings an injunction, including, if appropriate, an interlocutory injunction, could be granted. The problem which existed in seeking a remedy against the Crown was not confined to injunctions…” (emphasis added)

(3)  In the said passage, Lord Woolf is clearly referring to wrongs committed by the officer in his personal capacity.

(4)  On the contrary, in the present case, the Commissioner is clearly sued in his representative capacity.  The acts complained of are the application for and execution of Search Warrants.  It is difficult to see how such acts can be classified as a personal wrong on the part of the Commissioner himself.

C.     1217 INJUNCTIONSUMMONS

93.  This application can be dealt with relatively briefly in the rest of this Decision.

94.  First and foremost, I agree there is no utility in the 1217 Injunction Summons.  In particular:

(1)  At paragraph 1, the 1217 Plaintiffs seek an order that the Commissioner be retrained from reviewing the seized materials pending the determination of the Originating Summons.  As mentioned above, this request has been overtaken by events as the court has already put in place the Protocol for the handling and viewing of the seized materials. 

(2)  Paragraphs 2 and 3 of the 1217 Injunction Summons are (at best) essentially request for discovery by interrogatories under Order 26 of the RHC.  The Plaintiffs would have to satisfy the court that such requests are “necessary either for disposing fairly of the cause or matter or for saving costs”: Hong Kong Civil Procedure 2021 Practice Note 26/4/11.  Applying the test:

(a)  Paragraph 2 requires the Commissioner to disclose the documents it has reviewed.  This request is plainly unnecessary as the parties already know which of the seized items have been (or could have been) reviewed by the Commissioner.  They include the unsealed materials and those sealed materials which have since been confirmed to be not subject to LPP/JM claim upon the Plaintiffs’ Schedules under the Protocol and extracted in accordance with the Protocol.

(b)  Paragraph 3 requires the Commissioner to disclose which of the items fall under “specified evidence” for the Collusion Offence and Conspiracy Offence.  As the court disallows the proposed amendment to add the prayer for return based on the ground of irrelevance, there is no basis to order such disclosure. 

(3)  Paragraph 4 seeks an order for the return of materials.  This is clearly impermissible (see: Section B3 above).

95.  Second, as to the balance of convenience, I agree that the 1217 Plaintiffs have failed to address the Commissioner’s detailed submissions in this regard.  In summary:

(1)  There is no (and there has never been any) suggestion of irreparable damage caused to the 1217 Plaintiffs unless the 1217 Injunction Summons is allowed.

(2)  On the contrary, the 1217 Plaintiffs ignore and do not address the submissions of the Commissioner highlighting the need to continue criminal investigation, for which damages cannot be an adequate remedy if impeded.  In particular:

(a)  In Faisaltex, it was held by Eady J (in the context of a blanket challenge on the ground of relevance) at §21 that:

“Obviously, an issue of relevance cannot finally be determined until the stage when the issues in criminal proceedings, if any, have been identified. In particular, one cannot anticipate at this stage any defences that may be relied upon. Inevitably, therefore, judgments as to potential relevance at this stage can only be provisional. What is relevant for the purposes of an investigation into whether criminal offences have been committed is likely to be judged by a different and broader test from that applicable in a later trial when the issues have been more closely defined.” (emphasis added)

(b)  In the words of Freedman J in Intertrade Wholesale Ltd v Commissioners for HM Revenue and Customs [2018] EWHC 3476(QB)at §§46, 50-51:

“46. I am of the view that if an injunction were granted but at trial it would appear that HMRC was entitled to do that for which it was prevented from doing due to the injunction, damages would not be an adequate remedy to compensate it for the loss that it would suffer due to the injunction. Its work in law enforcement would be seriously interfered with and its ability to prosecute the alleged criminal offences underlying the search warrants would be seriously damaged. Further and in any event, there is no evidence of the ability of the Claimants to compensate at all, let alone on the possible premise that they are found guilty of the alleged criminal offences.

…

50. …However, for the moment, the position is that if HMRC is restrained from relying on the documents seized from the premises pending such trial, the crime investigation will be delayed and impeded.

51. In my judgment, it is in the public interest that the HMRC should pursue their investigations thoroughly, efficiently and speedily so as to make a report in due course to a prosecutor who can then decide whether criminal proceedings should be instituted. The Claimants are seeking the exercise of a judicial discretion to interfere in an ongoing and incomplete criminal investigation, in a way that will necessarily impede it. A consideration in the balance of convenience is that it is in the public interest for that investigation to be carried out so that if appropriate charges can be brought.” (emphasis added)

(3) A further important feature of the case is that the criminal proceedings are now ongoing. In criminal proceedings, evidence which were found to have been obtained improperly (for example, lack of authority or invalidity of search warrants) do not per se preclude the admissibility of the evidence in criminal trials: HKSAR v Chan Kau Tai[2006] 1 HKLRD 400 at 443A-450H. This is an important factor to be taken into account in considering the appropriateness of injunctive or similar relief, at least in relation to those items of evidence which the Police have identified as used and/or unused exhibits in respect of the District Court “fraud” case.

96.  Third, the submissions of the 1217 Plaintiffs are premised on there being a determination that the warrants have been ordered or agreed to be quashed.  Specifically, regarding R v Chief Constable of the Lancashire Constabulary, ex p Parker [1993] 2 All ER 56, Bramleyand Alder:

(1)  Both Bramley and Parker are judicial review proceedings.  Alder was a Canadian case. 

(2)  In Alder, the warrants had been quashed.  As a result, the court ordered the return of the relevant documents: “It is my view that this court's power to order the return of property that has been unlawfully seized, and which cannot be shown to be required as evidence, ought to be excisable when the court, on a motion for certiorari, has set aside a search warrant”. 

(3)  In Bramley: The court did not make any order of certiorari or declaration in this case (590A).  However, the Chief Constable had conceded that the warrants should not have been issued, and that the searches and seizures were unlawful (580F-H). The court held that “in any event, as already noted, all of the documents have been returned.  In the light of the concessions made I see no reason in this case to go beyond the terms of this judgment so as to make any order of certiorari or any of the declarations sought” (590A-B).

(4)  In Parker: The court held that the relevant warrants were lawfully issued but were not produced to the applicants during execution.  For this reason, the court accordingly refused the application for certiorari, but granted a declaration of breach (62h-j) with the result that the relevant documents were ordered to be returned forthwith (64h). 

(5)  Hence, none of these cases support the suggestion that a final order for, inter alia, immediate return of seized documents may be made on an interlocutorybasis.

97.  Fourth, for reasons explained Sections B2(a) and B2(b) above, any suggestion of an injunction against the Commissioner does not get off the ground.

98.  Indeed, the 1217 Injunction Summons continues to predominantly seek a final order in substance.  This means that the court cannot approach this application on the basis of the “relatively low threshold of having a ‘serious issue to be tried’ on the merits”. 

99.  Fundamentally, I agree with the Commissioner’s submission that there is currently in place the Protocol ordered by the court to deal with any LPP/JM claims to strike a balance between the interests of the Plaintiffs on the one hand (viz to guard against review of LPP/JM materials by the Commissioner) and the interests of the Commissioner on the other (to proceed with ongoing criminal investigations based on materials not subject to LPP/JM claims).  Having benefitted from the Protocol, the 1217 Plaintiffs cannot at the same time put everything to a standstill by the 1217 Injunction Summons. They simply cannot have their cake and eat it. 

D.     CONCLUSION

100.  For the reasons set out above, I dismiss the Amendment Summonses (save and except to the extent set out at paragraph 4(3) above) and the 1217 Injunction Summons.

101.  I see no reason why costs should not follow the event. Accordingly, I order that the costs of the Amendment Summonses be borne by the Subject Plaintiffs and the costs of the 1217 Injunction Summons be borne by the 1217 Plaintiffs (with a certificate of 3 counsel to the Commissioner).

102.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

103.  Lastly, I express my gratitude to counsel on all sides for their helpful assistance in this matter.