RE KIM DOTCOM AND OTHERS

HCMP 116/2012

[2019] HKCFI 1538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 116 OF 2012

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D E C I S I O N

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1.  This is an application by the 1^st and 2^nd defendants for leave to appeal against the Order of this court dated 29 March 2019. This court refused to discharge the restraint order granted by Madam Justice Bokhary on 18 January 2012.

2.  In gist, the grounds of appeal in the summons dated 12 April 2019 is as follows:

(a) This court erred in holding that the decision by the Secretary for Justice to provide assistance under the Mutual Legal Assistance Ordinance CAP. 525 (‘MLAO’) should be challenged by way of judicial review.

(b) Given that the Secretary for Justice had a continuing duty under MLAO, this court was wrong to adopt the time limit as in judicial review proceedings.

(c) This court should have adopted the narrow construction in “Aronson”.

(d) It is in the interest of justice to grant leave to appeal.

3.  The Secretary for Justice argues the following:

(a) Given the statutory scheme, application to challenge the decision of the Secretary of Justice to provide assistance under MLAO should be by way of judicial review.

(b) While the Secretary for Justice had a continuing duty to assess the provision of assistance under MLAO, there was no change of circumstances in this case.

(c) The “conduct test” should be adopted under s.5(1)(g) MLAO.

(d) There was no great public interest to grant leave of appeal.

4.  This court refuses leave to appeal for the following reasons:

(a) The decision of the Secretary for Justice to provide assistance under the MLAO is a statutory duty which should be challenged by way of judicial review.  The defendants are seriously out of time with no explanation whatsoever.

(b) While the Secretary for Justice has a continuing duty to review her decision to provide assistance under s.5 MLAO, there is no significant change of circumstances in the present case requiring review.

(c) The application for discharge under s.7(5), Schedule 2, MLAO does not require a court to re-consider the factors under s.5 MLAO. If that was the case, a court would need to be satisfied, in all applications of restraint orders under s.7(1), Schedule 2 MLAO, that the grounds under s.5 MLAO were met.

(d) In Re Rafat Ali Rizvi and others HCMP 2257/2010, the court considered the registration of an external confiscation order under s.28 MLAO.  Deputy Judge Yau (Yau J then was) ruled that he should consider whether the dual criminality principle, as stipulated under s.5(1)(g) MLAO, was satisfied.

(e) Under s.28(1)(c) MLAO, in considering the registration of an external confiscation order, a court has to determine whether enforcing the external confiscation order would not be contrary to the interests of justice.  Deputy Judge Yau was therefore entitled to consider the dual criminality principle in the context of assessing the interests of justice.

(f) The Rizvi case does not support the proposition that in applying for discharge under s.7(5), Schedule 2, MLAO, it is open to a defendant to challenge the decision of the Secretary for Justice to provide assistance under the MLAO.  In my view, the Rizvi case is consistent with the reasoning in paragraph (c) above.

(g) The narrow construction in “Aronson” is contrary to the plain meaning of s.5(1)(g) MLAO.

(h) There is no issue of important public interests for granting leave under s.14AA(4)(b) High Court Ordinance.

5.  I make the following orders:

(a) Leave to appeal is refused.

(b) Costs of this application be to the Secretary for Justice per the statement of costs for summary assessment.