NEXT DIGITAL LTD AND OTHERS v. COMMISSIONER OF POLICE

HCMP 1217-1222/2020
[2021] HKCFI 1128
(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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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1219 OF 2020

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1220 OF 2020

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1221 OF 2020

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

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R U L I N G

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1.  This is my ruling on the question of the plaintiffs’ obligation to enable access to digital devices.

2.  In this regard, the defendant proposes to include a mandatory order compelling the plaintiffs to provide “Security Information” (including but not limited to numerical, alphabetical and/or biometric passcodes and/or encryption key) to enable access by the defendant to the contents of the digital devices seized. 

3.  The defendant relies on the following sources of power for the courts to supplement, review or vary its order:

(1)  the court’s power to supplement and/or vary the order pursuant to the “liberty to apply” provision;

(2)  the court’s power to review pending sealing of the order; and

(3)  the court’s power to vary an order in view of change of circumstances. 

4.  By the Department of Justice’s second letter to the court dated 11 December 2020, the Department of Justice has confirmed that the defendant would not rely on the “slip rule” for the purpose of the application in this regard. 

5.  It bears emphasis that the court’s power under the “liberty to apply” provision is limited to doing what is necessary to work out the order already made, and cannot be extended to allow the variation of the order itself: Cristel v Cristel [1951] 2 KB 725 at page 728 per Somervell LJ and at page 731 per Denning LJ (as he then was). 

6.  There is limited power for a judge to review and revise his orders before they are sealed, but this power is only available in limited circumstances (see Hong Kong Civil Procedure 2021, Practice Note 42/1/19).  The court has, on various occasions, emphasised that the power is of an exceptional nature and should only be exercised “judicially” and in the “most exceptional circumstances”. 

7.  A court of co-ordinate jurisdiction has jurisdiction to vary a previous order to suit a change of circumstances or for the purpose of managing the case and furthering the underlying objectives of the rules of the court but such jurisdiction should be carefully exercised. 

8.  In the present case, the issue of whether the plaintiffs should be compelled to provide passcodes or other Security Information to enable the defendant to access the Seized Materials has already been argued and decided at the hearing on 19 November 2020 (“19 November Hearing”).  It was after consideration of both sides’ arguments that this court decided that the plaintiffs should not be compelled, but should be at liberty, if so advised, to provide passcodes to the defendant for the digital devices seized (see transcript at page 111 and also at pages 108 to 115). 

9.  I agree with the submissions of the plaintiffs’ counsel that such a drastic “revision” of the order is not permissible under any of the three sources of jurisdiction relied on by the defendant to vary this court’s previous order. 

10.  First, the proposed revisions cannot fall within the scope of the “liberty to apply” provision.  The revision sought by the defendant, which are diametrically opposite to what was decided by this court at the 19 November Hearing, seek to change rather than facilitate the implementation of the order.  Such drastic and contradictory revisions cannot be considered necessary for the “working out” of the order. 

11.  Second, the defendant has not established any exceptional circumstances which would justify an exercise of the limited power to review pending the sealing of an order. 

12.  Third, the defendant has not attempted to identify any change of circumstances in the affirmations in support of the defendant’s summons.  At the hearing today, the defendant now relies on the fact that three of the plaintiffs have, since the 19 November Hearing, been charged with offences of fraud and/or under the National Security Law as the change of circumstances. 

13.  In my view, the fact that some of the plaintiffs have been charged is not a material change of circumstances.  This is not a possibility which the defendant could not reasonably have foreseen at the hearing on 19 November 2020. In any event, not all the plaintiffs have been charged so this ground cannot apply to them. 

14.  In the premises, I agree with the plaintiffs’ submission that there is simply no jurisdiction for this court to entertain the defendant’s application, which essentially seeks to reopen and re-litigate issues already argued and determined at the 19 November Hearing.  The application should therefore be dismissed in limine for want of jurisdiction to hear it. 

15.  Further, and in any event, there is in my view no statutory power whether under the Police Force Ordinance or the National Security Law or any other ordinance for the police or the court to compel the plaintiffs to provide the Security Information as currently sought by the defendant. 

16.  There is also no Common Law power for the courts or for the police to compel the plaintiffs to provide such Security Information (see Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529 at paragraphs 35 and 122, per Poon CJHC and Lam and Macrae VPP). 

17.  And in my view the defendant’s reliance on paragraphs 74 and 75 of Citic Pacific Limited v Secretary for Justice (No 2) [2015] 4 HKLRD 20 is misplaced.  There, the court was discussing:

“the proper procedure for handling LPP claims in respect of materials seized upon the execution of a search warrant.”

18.  If limited waiver, as discussed by the Court of Appeal on that occasion, was not given, that would possibly lead to the LPP application being refused, but it does not mean that a party could be forced to give the limited waiver in the first place. 

19.  For the reasons stated above, the defendant’s application in this regard is refused.