A AND ANOTHER v. COMMISSIONER OF POLICE

HCCM 425/2020

[2021] HKCFI 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONFIDENTIAL MISCELLANEOUS PROCEEDINGS

NO 425 OF 2020

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RULING

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Introduction

1.  This is about two summonses[1] taken out by the Applicants, pseudonymously referred to as A and B. The Applicants apply for variation of two Production Orders (“Production Orders”)[2] issued under Schedule 7 of the Implementation Rules (“IR”) for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). The application was heard in camera: see s6, Sch 7 of the IR; r6, O116, RHC.  Usually, judgments/ rulings of hearings of this nature will not published.  However, since the matter concerns the interpretation of certain provisions in the NSL and the IR which would be of interest to the public, having heard counsel, it is decided that a redacted version of this Ruling will be prepared for the purpose of publication.  The parties are given the full version.

2.  At the hearing of the 1^st Summons on 22 February 2021, which was basically a direction hearing, it was ordered, among other things, that the Applicants were to secure the material(s) on which legal professional privilege (“LPP”) and/or journalistic materials (“JM”) is claimed in sealed container(s) in the presence of a police officer of National Security Department and deposited the sealed container(s) (“Sealed Materials”) with the Court.  Directions were also given for the filing and service of further affirmations and skeleton arguments. 

3.  Subsequently, by the 2^nd Summons the Applicants seek an order/ declaration that (i) the Sealed Materials are subject to LPP and/or JM; (ii) they be returned to the Applicants; and (iii) costs. 

Issues

4.  A preliminary issue for this court to decide is whether any of the documents contained in the Sealed Materials are subject to LPP and/or JM.  This is because:

(i)      if there are documents which are subject to LPP, then those documents would have to be returned to the Applicants: s3(4)(c)(ii) and s3(10)(a), Sch 7, IR; and

(ii)     if none of the documents are either subject to LPP or JM, then the applications would simply fall apart and no further consideration would be necessary.

5.  The following issues, however, may arise if there are documents in the Sealed Materials which are not subject to LPP but are JM:

(i)      whether Part XII of the Interpretation and General Clauses Ordinance (“IGCO”), Cap 1, is directly applicable;

(ii)     if not, whether a scheme similar to Pt XII of the IGCO shall be read into Sch 7 of the IR; and

(iii)    if not, to what extent, if any, the court may take into account the materials sought might include JM.

The Preliminary issue - LPP

Documents in dispute

6.  

7.  It is asserted that the Applicants’ Legal Department is often consulted from time to time concerning a whole range of varying legal issues.   On this basis, the deponent says:

“I have been advised and verily believe that part of the Whatsapp conversation, namely messages on 29 June 2020 and 21 July 2020, relates to legal advice privilege, namely internal legal advice given by the Applicant’s Legal Department which was disclosed in those messages.”

8.  Since the Commissioner does not have access to the items in dispute, he is not in a position to transverse the Applicants’ assertion above, save and except to reiterate the relevant legal principles.   

Legal principles

9.  I gratefully adopt the following summary prepared by Ms Cheung (and with her, Ms Pang), counsel for the Commissioner, of the relevant legal principles on legal advice privilege which, I understand, are not in dispute[3]:

(1) Legal advice privilege attaches to communications between a client and his lawyer, where the lawyer is acting in the course of his professional relationship and within the scope of the lawyer’s professional duties, under conditions of confidentiality, and for the purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant context: Passmore on Privilege, 4^th ed (2020), at §2- 003.

(2) LPP does not cover all communications between lawyer and client.  The applicable test in Hong Kong is whether the document was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice: Citic Pacific Ltd v Secretary for Justice (No 2)[4].

(3) Lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, for example in a company’s legal department, but in the nature of things those who are employed in that capacity are more likely than independent practitioners to become involved in aspects of the business that are essentially managerial or administrative in nature.  To that extent it is less easy to maintain that all communications passing between them and the company’s management attract privilege: United States of America v Philip Morris Inc & Anor[5].

(4) Whether communication between an employer and members of his internal legal department is subject to LPP depends on the capacity in which the lawyer is acting and the context of the communication:

(i) if a solicitor becomes the client’s “man of business” responsible for advising the client on all matters of business, the advice may lack a relevant legal context: Three Rivers District Council and others v Governor and Company of the Bank of England (No. 6)^[6]; and

(ii) the lawyer’s job title is one indication, but even when employed as a lawyer, a helpful indication of whether he is acting in that capacity might be whether the communication involves the use of skills for which an external lawyer could claim privilege.  If so, then his communications are likely to be privileged.  If not, this may well suggest he is acting in a non-legal or executive capacity: Passmore on Privilege, ante, at §4-084.

(5) Where privileged material is communicated to a third party, there is an issue as to whether privilege has been waived: The court would consider whether the disclosure to the third party was “attended by a degree of confidentiality” such that “there was no waiver vis-à-vis the outside world”: USP Strategies Plc & Another v London General Holdings Ltd & Others ^[7]. Whether there had been a waiver is essentially a question of fact much which must be determined by reference to all the circumstances, including what was expressly or impliedly communicated between the person sending, and the person receiving, the documents in question, and what they must or ought reasonably to have understood: Citic Pacific Ltd v Secretary for Justice^[8].

(6) However, privilege does not attach to communications between lawyer and client if the purpose of the client in seeking legal advice is to facilitate criminal or fraudulent conduct: R v Cox and Railton^[9]. Therefore, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose to which his advice is wanted, the communication between the two would not be privileged: Citic Pacific Ltd v Secretary for Justice^[10].

(7) The Court may exercise its power to order disclosure if there is a prima facie case that the fraud or crime existed and that the documents concerned came into existence as part of the fraud or crime: see Citic Pacific Ltd v Secretary for Justice^[11], ante,  citing R v Gibbins^[12].

10.  As to the law, Mr Harris, SC (and with him, Mr Wong), counsel for the Applicants, submits that there is no basis for the Commissioner to assert that the “fraud exception” applies.    

Inspection by the court

11.  As aforesaid, the Commissioner is not in a position to make any substantive arguments without the sight of the disputed items.     Therefore, it falls on this court to inspect the disputed items to see the validity of the Applicants’ claim. 

12.  I bear in mind the aforesaid legal principles. Having inspected the items under consideration, I find that some documents are included in more than one item.  For obvious reasons, I cannot go into details of what were said in the disputed items.  What I can say is that the redacted Whatsapp exchanges between [X] and [Y] and the internal emails of the Applicants concerned were all about the employee seeking advice from the Applicants’ Legal Department in the latter’s capacity as “lawyer”. 

13.  Furthermore, having considered the contents of the items, I find that there is not a prima facie case that the items in dispute came into existence as part of any fraud or crime.  This is so, even if one were to look at the disputed items in the light most favourable to the prosecution.    For the avoidance of doubt, I should say that in coming to the aforesaid conclusion, I already have regard to what is said in the Commissioner’s affirmation filed in support of the application of the Production Orders.  I can say that my conclusion on the non-availability of the “fraud/ crime exception” in the present case does not depend on any “disputed versions of events” and it “does not require any judgment to be reached in relation to the issues to be tried”: see Kuwait Airways Corporation v Iraqi Airways Co (No 6)[13]; and R (on the application of Hallinan Blackburn-Gittings & Nott (A Firm)) v Middlesex Guildhall Crown Court[14].

14.  In the circumstances, I uphold the Applicants’ claim of LPP as regards items 19-22.

JM

The items in dispute

15.  

Parties contention

16.  It is the primary position of the Applicants that the statutory scheme under Pt XII of the IGCO is directly applicable to Sch 7 of the IR.  Alternatively, it is contended that in any event, even if the statutory scheme under Pt XII of the IGCO is inapplicable, the Court must conduct a balancing exercise similarly to that required under s 84 of the IGCO. If that argument also failed, then it is contended that the IR, being a “subsidiary legislation”, would be inconsistent with the NSL which provides for the protection of press freedom and therefore ultra vires.

17.  On the other hand, the Commissioner contends that Pt XII has no application to the IR.  It is also the stance of the Commissioner that JM does not enjoy a special status of protection either in the NSL or the IR, there being no reference at all of JM in Sch 7.   It is further submitted that there is no inconsistency between the NSL and the IR, that press freedom is not an absolute right and that sufficient safeguard in terms of judicial control has been provided for to protect that right.    Finally, it is submitted that there can be no constitutional challenge to the IR which is made pursuant to NSL 43 by the Chief Executive in conjunction with the Committee “in conjunction with” the Committee for Safeguarding National Security of the HKSAR, citing NSL 14 and HKSAR v Lai Chee Ying[15]. 

18.  With respect, many of the issues raised by the parties as regard the relationship, if any, between Pt XII of the IGCO and Sch 7 of the IR would not arise in the present case, if the items in dispute under this head are not in fact JM.  Therefore, I would first consider whether the disputed items are JM.  For this purpose, it is necessary for me to consider the meaning and scope of JM. 

What qualifies as JM

19.  As already alluded to in the above, the only place in the IR where JM is referred to is in Sch 6[16] which governs telephone interception and covert surveillance.  Section 27, Sch 6, provides that JM has the meaning given by s 82 of the IGCO.  The latter provision says:

“82. Meaning of journalistic material

(1) Subject to subsection (2), in this Part journalistic material (新聞材料) means any material acquired or created for the purposes of journalism.

(2) Material is only journalistic material for the purposes of this Part if it is in the possession of a person who acquired or created it for the purposes of journalism.

(3) A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes.”

20.  This definition emphasizes the purposes of the creation and acquisition of the item in question and also the intention of the conveyor, so that not everything in the possession of a “journalist” or his/her employer would fall within the scope of JM.   

21.  The word “journalism”, however, is not defined in either the IGCO or the IR.  According to Collins CoBuild English Dictionary, “journalism is the job of collecting news and writing about it for newspapers, magazines, television, or radio.”   That, of course, is no legal definition.   However, it helps to provide a convenient starting point as   to what “journalism” is generally about as commonly understood. 

22.  Mr Harris contends that a generous interpretation should be given to JM.  As to this, I agree.  This is because protection of journalistic material from seizure and exposure is closely connected with freedom of the press which is a fundamental right.  As noted by Ma CJHC (as he then was), who gives the judgment of the Court of Appeal in So Wing Keung v Sing Tao Limited & Anor[17], says,

“… when a fundamental freedom such as the freedom of the press is involved, it was obviously felt necessary and desirable to set out clearly any qualification or derogation of that freedom. Journalistic material forms the backbone of the freedom of the press. As a general rule, such material must be given the greatest possible protection from seizure or public exposure; otherwise the press may become inhibited in informing the public of matters it is entitled to know.”

23.  It should be noted, however, that the Court of Appeal is mindful to enter the caveat immediately after the above quoted passage that:

“However, the protection of journalistic material is of course not absolute either, for sometimes it may be in the public interest that journalistic material should be seized or exposed.”[18]

24.  My attention is also drawn to the case of Commissioner of Police of the Metropolis v Times Newspapers Ltd[19], where Tugendhat J says,

“131 Although journalists enjoy no special status or rights in law, the activity of journalism does. Journalism is given a special status in a number of English statutes, including the Police and Criminal Evidence Act 1984 ss.9 and 13. For example, in the Data Protection Act 1998 (which is relied on in this case by the Claimants) s.32 is headed "Journalism, literature and art”. The section recognises art.10 rights and makes special provision where the processing of data "is undertaken with a view to the publication by any person of any journalistic, literary or artistic material”.

132 It is to be noted that the statute refers to "journalism” and "journalistic material”, and not to "journalists”. This is consistent with the Strasbourg jurisprudence. That distinguishes between types of speech rather than types of speaker. The type of speech to which it gives most protection is that which is directed to informing public debate (or, as it sometimes put, imparting information and ideas on political questions and on other matters of public interest). It is that type of speech which is referred to by a figure of speech as "the press”, or as journalism, in that body of case law. The Strasbourg jurisprudence does not look to the form in which the speech is published, and, if it is in a particular form, categorise it as journalism even if its content is no more than gossip which does not inform public debate.

133 Thus in Castells v Spain (1992) 14 E.H.R.R. 445 the court considered a statement made by Mr Castells in an article published in a weekly magazine. Mr Castells was not a professional journalist. He was a lawyer and a senator. But he was in this instance carrying on the activity of journalism. The court repeated what it has said in many other cases, namely:

‘43. In the case under review Mr Castells did not express his opinion from the senate floor, as he might have done without fear of sanctions, but chose to do so in a periodical.  That does not mean, however, that he lost his right to criticise the Government.  In this respect, the pre-eminent role of the press in a State governed by the rule of law must not be forgotten.  Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest (see, mutatis mutandis, the Sunday Times v.  The United Kingdom judgment of 26 April 1979, Series A no.  30, p.  40, para.  65, and the Observer and Guardian judgment, cited above, Series A no.  216, p.  30, para.  59 (b)).  Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders.  In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (see the Lingens v.  Austria judgment of 8 July 1986, Series A no.  103, p.  26, para.  42).’”

(Emphasis supplied)

25.  I note that that case is not about search warrants or production orders but an application by the Metropolitan Police for an injunction against the defendants (newspapers) for delivery up of certain leaked documents which the newspapers intended to rely upon in their defence of a libel action brought by a third party.   However, since s13 of PACE 1984 (definition of “journalistic material”) is identical to our s82 of the IGCO and the context (freedom of the press[20]) in which Tugendhat J is speaking is also about the constitutional right guaranteed by our BL27 and BL 39, in my view what his lordship says as to the meaning of “journalism” is also apposite to the proper understanding of Pt XII of the IGCO and thus Sch 6 of the IR. 

26.  Based on the above, I summarise the salient features of JM as follows:

(1) the reason for JM enjoying a special status in various statutory provisions is its close connection with the freedom of expression;

(2) however, the mere fact that the material is in possession of a journalist is not determinative of its nature, nor is the form in which the material is published;

(3) the determining factor is the purpose of the creation and acquisition of the material in question and the intention of the conveyor (if applicable);

(4) a speech/ article prepared for the purpose of publication would be JM if it is directed to informing public debate and on other matters of public interest. 

27.  That said, if the material in question is created, acquired or received for the purpose of a crime, then it would not be qualified as JM:  see R v Central Criminal Court ex p Bright[21].   In that case, the English Court of Appeal, when dealing with the meaning of “journalistic materials” as defined in s13 of the Police and Criminal Evidence Act 1984[22], says[23]:

“Although this point was not closely addressed in argument, I shall return to the way in which journalistic material is defined in s13. The journalist must acquire or create the material for the purposes not of crime, but journalism. S13(3) is directed to the intention of the conveyor of the materials. If he intends that it should be used for journalism there is a rebuttable presumption that it was acquired by the recipient for that purpose. But if not, if for example, the recipient’s purpose was to conceal evidence of a crime, the material is not journalistic material. In summary, if a journalist acquires material for the purposes of crime, or receives it other than for the purposes of journalism, it falls outside the ambit of s13(1)…”

(Emphasis supplied)

28.  So far, I have not touched on the arguments as to whether JM enjoys any special status for the purpose of Sch 7 of the IR.  That, I will do in due course.  However, before that it would be convenient for me to consider first whether any of the disputed items are JM.

Whether any of the disputed items are JM

29.  As a matter of necessity and with the consent of the parties, I have opened the Sealed Materials and inspected the items in dispute under this head: HKSAR v Wong Cho Shing[24].  I come to the following findings:

30.  

31.  

32.  

33.  

34.  In short, even if one were to adopt a liberal interpretation as contended by Mr Harris, in my judgment none of the above can be categorised as JM in the sense of Pt XII of the IGCO.  Therefore, the Applicants fail on this ground.

Applicability of Part XII, IGCO

35.  In view of my aforesaid ruling, it would be unnecessary for me to consider whether Pt XII of the IGCO has any application to Sch 7 of the IR.  However, in deference to counsel arguments, I should say a few words on this topic.   

36.  With respect, as a matter of statutory construction I am unable to accept Part XII of the IGCO has any direct application to Sch 7 of the IR.  As pointed out by Ms Cheung:

(1) Section 85, IGCO concerns the power to enter, search, and seize materials in any “Ordinance”.  However, NSL and the IR are not “Ordinance” as defined in s 3, the IGCO.  As noted in Tong Ying Kit v HKSAR (No.  1)[25], whilst the application of the provisions of the IGCO is subject to any “contrary intention” appearing either from that Ordinance or any other Ordinance in force, there is no contrary intention which would lead the court to construe the word “Ordinance” to include the NSL (and the IR for that matter); and

(2) Sections 84 & 85, the IGCO apply to provisions in any Ordinance granting power to “enter”, “search” and “seize” only.  Production orders, on the other hand, do not involve any of those.

37.  Mr Harris submits that “production orders” fall within “seizure” and thus attract the protection scheme under Part XII of the IGCO.  He bases this submission on the following passage in So Wing Keung v Sing Tao Ltd & Anor which I have already quoted above,

“while production orders and search warrants are frequently made or issued by the courts in many varied situations, the search and seizure of journalistic material has been singled out for special consideration”.

38.  With respect, Mr Harris has taken the above passage out of context.  Sing Tao’s case was about search warrants and in that context the Court of Appeal commented on the unique nature of the provisions in Pt XII which aims to set out the requisite criteria to govern “the search and seizure” of JM.  However, the Court of Appeal is not trying to equate “production” with “seizure”.  Whilst production orders and search warrants are both coercive measures, there is an important distinction between the two, as the former does not involved any intrusion to the premises of the subject.  It is also noteworthy that the Court of Appeal says only that “the search and seizure of journalistic material has been singled out for special consideration”, not “the search, seizure and production”.

Whether JM a relevant consideration

39.  By the clear language of s3(2), Sch 7 of the IR, the court is empowered but not bound to make an order granting a production order when the court is satisfied that all the conditions set out in s4 are met. Had it been otherwise, the section would have said, “The Court of First Instance shall … make an order”.  However, this is not what the provision says.

40.  The question is whether, in the exercise of its discretion, the Court is entitled to take into account that the material sought might cover JM.  I am inclined to the view is that the court is so entitled.  I have not ignored the fact that Sch 7 makes no express reference to JM.  However, NSL 4 requires the courts to respect and protect human rights (which expressly includes the freedoms of speech and of the press) in safeguarding the national security in the HKSAR and Sch 7 of the IR is made under NSL 43.  As fairly accepted by Ms Cheung in her written submission[26],  judicial control is a “fundamental feature” of the scheme of Sch 7. In my view, if the court is not allowed to take into account that the material sought might cover JM, the value of this judicial safeguard would be much reduced. In this regard, the judgment of the Court of Final Appeal in P v Commissioner of Independent Commission Against Corruption[27] is instructive.  In P’s case, the Commissioner of the ICAC obtained an ex parte order from the court authorising him to issue a notice demanding X, a non-suspect, to produce certain documents.   In that context, Li CJ, who gives the judgment of the Court, says:

“24. The role of the judge is a fundamental feature of the statutory scheme. Under it, the judge acts as the safeguard in the process. The judge of course is not the investigator. The ICAC as the investigator has the important responsibility of presenting the application fully and fairly to the court. But the judge has the duty of considering the application and deciding whether the special investigatory tool in s. 14(1) should be made available to the ICAC in the case in question. It is an important duty which judges of the CFI should discharge with great care so as to ensure that the judicial safeguard provided for in the scheme is a meaningful and effective one.”[28]

“28. As has been noted, even where the three statutory criteria have been satisfied, it does not follow that the court must make the order authorizing a s. 14(1)(d) notice. The statute uses the word “may” and the court plainly has a discretion in the matter.”[29]

41.  Admittedly, the statutory conditions for the issue of the ex parte order in P’s case are different from the present case[30]. A more similar case, however, can be found in R v Central Criminal Court ex p Bright.  Like our s3(4)(d), Sch 7 of the IR, the conditions which are said expressly to be relevant to the “public interest” in para 2, Sch 1 of the PACE 1984 are limited to (i) the benefit likely to accrue to the investigation if the material is obtained; and (ii) the circumstances under which the person in possession of the material holds it.  The question before the English Court of Appeal was whether a judge, in the exercise of his discretion under para 1, Sch 1 of PACE 1984[31], is entitled to take into account “self-incrimination”[32] and “freedom of expression”.   As to this, the Court in the affirmative[33].  In the words of Judge LJ,

“This provision, as it seems to me, is the final safeguard against an oppressive order, and in an appropriate case provides the judge with the opportunity to reflect on and take account of matters which are not expressly referred to in the set of relevant access conditions and, where they arise, to reflect on all the circumstances, including where appropriate what can without exaggeration be described as fundamental principles. This approach was endorsed in R v Bristol Crown Court, Ex p Bristol Press and Picture Agency Ltd (1986) 85 Cr App R 190, 196 where Glidewell LJ noted with approval that the judge at the Crown Court had rightly taken into account both "the importance of the impartiality and independence of the press” and "the importance of ensuring that members of the press can photograph and report what is going on without fear of their personal safety”. Neither of these considerations is included in the public interest considerations specifically identified in paragraph 2(c).

…

… Again, in my judgment, the judge may take account of an apparent disproportion between what might possibly be gained by the production of the material and the offence to which it is said to relate and, for the reasons set out in detail below, in the case of journalistic material to the potential stifling of public debate, and in cases arising under section 9 of and Schedule 1 to the 1989 Act to the risk of imposing an obligation requiring the individual to whom the order is directed to incriminate himself.”

(Emphasis supplied)

42.  Further, I note that in case of an application for authorization to conduct interception or covert surveillance pursuant to Sch 6 of the IR, one of the matters which is required to be set out in the statement submitted to the Chief Executive for her consideration is whether it is likely that any information which may be the contents of any JM will be contained by conducting interception or surveillance, as the case may be[34].  It would not be necessary to bring that to the attention of the Chief Executive if it was irrelevant.  However, if it is a relevant consideration for an application for authorization to conduct interception and covert surveillance, then I am unable to see why, as a matter of logic or principle, it would not also be a relevant consideration for an application for production order.  That both interception and covert surveillance would involve the taking of intrusive measures against the privacy of the subject without his knowledge cannot be a justification for the distinction, bearing in mind that JM is not about protection of privacy but protection of press freedom. 

43.  For avoidance of doubt, although I am of the view that JM does enjoy a “special status” for the purpose of Sch 7, it is only in the sense that it is a relevant consideration in the exercise of the court’s discretion.  However, it bears repeating the caveat of the Court of Appeal in Sing Tao’s case that the protection of JM is not absolute and that there are occasions where it may be in the public interest that JM should be seized or exposed.  In this regard, I am inclined to agree with Ms Cheung that there is no room to adopt a “remedial interpretation” by reading into Sch 7 a comprehensive scheme similar to the one contained in s84 of the IGCO.  This is because:

(1) by the clear wording of NSL 43, the NPCSC intends to confer on the Police additional powers in handling cases concerning offences under the NSL; and

(2) Sch 7 of the IR has already provided for a comprehensive and self-contained framework governing, amongst other things, the exercise of powers in respect of production orders. 

44.  Nevertheless, in order that the judicial safeguard provided for in Sch 7 could be “meaningful and effective” and that NSL 4 could be given its full effect, the court must be entitled to take into account whether the material sought under a production order might include JM.  This is not based on any “remedial interpretation” as expounded in HKSAR v Lam Kwong Wai & Anor[35].  Instead, it is based on the language actually used in the NSL and the IR which the court must construe as a coherent whole in determining what it is expected to do in the discharge of its judicial gatekeeping role. 

Ex parte application

45.  Production orders under the IR, like ordinary search warrants, are applied for on ex parte basis.  Therefore, the Commissioner bears the important responsibility of presenting the application fully and fairly to the court: see P’s case, ante.   This responsibility entails the duty to place all material information before the judge: cf Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise[36] , a case on search warrant where the Court of Appeal emphasises the importance of careful scrutiny of an application by a judicial officer.

46.  Based on the above, I am more inclined to the view that if the Commissioner has reasons to believe that it is likely that the materials which he seeks to obtain by way of a production order might include JM, then in the fulfilment of his duty to act fairly and to place all material information before the judge, he should bring that to the attention of the judge for his consideration.  In this regard, I am aware that there are passages in the judgment of the Court of Final Court in P’s case[37] to the effect that “material non-disclosure” is not a ground that can be entertained in an application for discharge of an ex parte order under the POBO.  The rational for this is twofold: (1) the legislative intent to preserve the integrity and effectiveness of the investigation; and (2) the confidential nature of the documents relating to the initial application so that the issue about  “material non-disclosure” cannot be meaningfully tested in the application for discharge.  In the present context s3(7), Sch 7 of the IR (application for discharge or variation) and NSL 41(1) (application of the laws of the HKSAR to procedural matters) are relevant.  However, there may be an argument (and I put no higher than that) that the same rationale may not carry equal force when the dispute is restricted to whether or not the court had been informed that the production order being sought is likely to cover JM. 

47.  Since the matter does not actually arise in the present case, the point shall be left for future determination in an appropriate case. 

Constitutionality of the IR

48.  This issue, in my preliminary view, hinges largely on whether the IR is made by the Committee for Safeguarding National Security of the HKSAR and if so, whether NSL 14 is applicable.  However, since the issue does not really arise in the present case and since I do not have the benefit of full argument from counsel, I shall restrain from expressing any view on this. 

Order

49.  Based on the above, I grant a declaration that items 19-22 of the Sealed Materials are subject to LPP and it is ordered that those items be returned to the Applicants after the expiry of the appeal period.

50.  As a corollary, the rest of the items in Sealed Materials (items 1-18) shall be released to the Commissioner after the expiry of the appeal period. 

Costs

51.  The general rule is that costs should follow the event.   Here, the Applicants are only partially successful in the application.  I note, however, that the bulk of the Applicants’ submissions and almost all of the hearing time was spent on the issue of JM on which they fail. Besides, I also take into account that:

(1) the present application was originally advanced on the basis that the Production Orders should have been applied for in accordance with s85 of the IGCO, which is contrary to the express wording of s85 itself;

(2) another original ground that the Production Orders could not cover pre-NSL material was no longer maintained at the hearing of the 2^nd Summons;

(3) the abandonment of the alternative argument that “a temporally unlimited power would be potentially oppressive”, as the Production Orders have clear temporal limits; and

(4) the delay on the part of the Applicants to comply with the Production Orders in respect of documents which are not in dispute[38].

52.  On the other hand, I also bear in mind that this is the first case of its type and that there are only a few case authorities on the NSL and the IR.

53.  Having regards to all the circumstances, in the exercise of my discretion as to costs, I make an order nisi that the Applicants shall pay one-third of the Commissioner’s costs, on party and party basis, to be taxed if not agreed.   

[1] Dated respectively 3.2.2021 (“1^st Summons”) and 2.3.2021 (“2^nd Summons”). 

[2] One against A and the other against B, both of which were made on 24.12.2020.

[3] In fact, in the Skeleton Argument of A and B (dated 16.4.2021), nothing was mentioned about LPP at all.  Even in their Reply (dated 29.4.2021), only two short paragraphs were devoted to this issue. 

[4] [2015] 4 HKLRD 20, at §44.

[5] [2003] EWHC 3028 (Comm), at §64 (per Moore-Bick J)

[6] [2005] 1 AC 610, at §38 (per Lord Scott)

[7] [2004] EWHC (Ch) 373, at §21

[8] [2012] 2 HKLRD 701, at §56.

[9] (1884) 14 Q.B.D.  153

[10] Supra, at §55.

[11] Supra, at §79.

[12] [2004] EWCA Crim 311, at §50.

[13] [2005] 1 WLR 2734, at §37.

[14] [2005] 1 WLR 766, at 771.

[15] (2021) 24 HKCFAR 33, at §37.

[16] See s23(b)(ix) (statement in support of an application for authorization for interception); s24(b)(x) (statement in support of an application for authorization for covert surveillance); & s27 (definition of JM).

[17] [2005] 2 HKLRD 11, at §36(1).

[18] Ibid, at §36(2).

[19] [2014] EMLR 1

[20] Art 10, the European Convention on Human Rights.

[21] [2001] 1 WLR 662

[22] The UK equivalence of our s 82 of the IGCO.

[23] Ibid, at 684C-E.

[24] CACC 38 of 2017 (unreported), dated 26.7.2019, at §120.

[25] [2020] 4 HKLRD 382, at §§70-71.  This part of the judgment has not been overruled by the Court of Final Appeal’s judgment in HKSAR v Lai Chee Ying, supra.

[26] Dated 23.4.2021, at §44.

[27] (2007) 10 HKCFAR 293

[28] Supra, at §24.

[29] Ibid, at §28.

[30] See s14, Prevention Against Bribery Ordinance, Cap 201.  It is noted that “public interest” is not expressively mentioned there as a granting criteria.

[31] Which is similar to our s84(2), the IGCO. 

[32] I note that by s4(11)(a), Sch 7, the IR, a person is not excused from producing any material in relation to which a production order is made on the ground that to do so might tend to incriminate him. 

[33] Supra, 678 G-H, 679C-D (per Judge LJ), 691H-692A (per Maurice Kay J) & 697 B-C (Gibbs J).

[34] ss23(b)(ix) & 24(b)(x), Sch 6, the IR.

[35] (2006) 9 HKCFAR 574

[36] [2016] 2 HKLRD 1372, at §§71-74

[37] Supra, at §§5, 53.

[38] The Production Orders were meant to be complied with even if the Applicants wanted to mount a challenge.  However, the Applicants had failed to produce to the Police even the undisputed items up to 22.2.2021 when the Court had to grant an extension for the Applicants to produce undisputed items.