YEUNG CHUN PONG AND OTHERS v. THE SECRETARY FOR JUSTICE

HCMP5021/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.5021 of 2003

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R U L I N G

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1. On 18 November 2003, Lunn J granted a restraining order over the realisable property of the respondents pursuant to section 15 of the Organized and Serious Crimes Ordinance, Cap. 455 ("the Ordinance"). That Ordinance provides in part a Legislative Scheme to preserve and identify realisable property of respondents for future confiscation should a conviction of those charged ensue.

2. That order was amended and re-amended by me on various dates. On 15 March 2004, Deputy High Court Judge M. Poon refused further variations sought of the restraining order, ordered the sale of a motor vehicle by the 3rd respondent and the payment of the proceeds with a restrained account and gave the respondents 14 days to comply with my order of 7 January 2004 as amended on 27 January 2004 and varied on 5 February 2004. The order of Deputy High Court Judge M. Poon was subject to a minor amendment on 18 March 2004.

3. This summons now seeks a stay of proceedings of the order of Deputy High Court Judge M. Poon (except paragraph 2 thereof), pending the disposal of appeals against (i) my order dated 7 January 2004 as amended by an order dated 27 January 2004 varied by order dated 5 February 2004 and re-amended by an order dated 19 March 2004 and (ii) the Amended Order.

4. The application for stay is sought pursuant to Order 59, rule 13 of the Rules of the High Court. Order 59, rule 13(1)(a) provides that :

"an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;"

5. The Court of Appeal or a single judge may otherwise direct. Thus I have a discretion to grant the application or not. Normally the appeal should be set down before the stay application is made but may be made before that date if urgency requires. Mr Bruce SC, for the respondents, argues that unless the stay is granted the respondents will be required to comply with the order before the appeal is set down. I am told the application for leave to appeal out of time will be heard on 25 August 2004. Compliance with the Amended Order is presently required by 29 March 2004 by the order of Deputy High Court Judge M. Poon by her order of 15 March 2004. Mr Reading SC, for the applicant, takes no issue with my hearing of the summons notwithstanding the appeal has not been set down.

6. It is for the respondents herein to satisfy the court that there are good reasons for granting a stay.

7. In his written argument, Ms Bruce SC argues this :

"6 In the instant case the information which the Respondents object to provide is not objected to merely on the basis of a right of privacy although, that right is asserted in the instant case. The basis for the objection is far more fundamental than that. The Respondents submit that they would suffer serious, if not irreparable, harm if the information was provided and it was passed to those having the conduct of the investigation or prosecution of the criminal proceedings levelled against the Respondents."

8. Paragraphs 5 and 6 of the Amended Order provides :

"5. No disclosure made in compliance with this order shall be used as evidence against the Respondents in any criminal prosecution of any of the Respondents who are required to make that disclosure, except in proceedings under Section 31 of the Crimes Ordinance, Cap. 200.

6. The information disclosed in compliance with this Order shall not be used for any purposes, other than these proceedings and confiscation proceedings, and shall not be disclosed or otherwise divulged to any third party without the leave of the court."

9. The information ordered to be disclosed is, pursuant to paragraph 3 of the Amended order, to be disclosed to the Secretary for Justice. The exercise of my discretion to grant a stay on the basis that the information if provided may be passed "to those having the conduct of the investigation or prosecution of the criminal proceedings levelled against the respondents" is to accept that on the balance of probabilities the Secretary for Justice may breach paragraphs 5 and 6 of the Amended Order. This is nothing before me to suggest that possibility.

10. Mr Bruce SC further argues that general right of privacy will be breached unless a stay is granted. He refers me to Pt Bank Pembangunan Indonesia (Persero) v. Tan Eddy Tansil & Others, HCA6260A/1994, where Findlay J, as he then was, said :

"The 'execution' would involve the disclosure by the defendants of personal and financial information that they would otherwise be entitled to keep to themselves.

A stay of execution is not, of course, by any means automatic. On the contrary, the law regards the plaintiff as entitled to the fruits of his judgment immediately, unless there is some good reason why he should be deprived of them. One of the reasons the courts have found good is that, if a stay is not ordered, the appeal may be rendered nugatory. It is said that this is the case here. It is not strictly the case here, of course; there is much more at stake in the appeal than this aspect of the matter, but I suppose it can be said that the information once disclosed cannot be 'undisclosed'. On the other hand, the information is protected. Quite apart from the general law, the order of 28 June 1994 requires in express terms that the information be used only for the purpose for which it is disclosed. And there is no suggestion that the defendants will suffer irreparable harm by the disclosure of the information. They are not, for example, in trade competition with the plaintiff, nor is it suggested that the information would reveal anything in the nature of a commercial secret. The most that has been said before me is that, if the appeal succeeds, the disclosure of the information will infringe the defendants' general right of privacy."

11. In the matter before me, I have dealt with the argument of irreparable harm being done to the respondents on the basis the Secretary for Justice might breach the terms of the Amended Order.

12. What is left is the general right to privacy. The Legislative Scheme of ORSO is somewhat harsh in its application for the reason that it was implemented to locate and retain property still the realisable asset of a respondent until an order for confiscation of the assets or an order for discharge is made. Any forced disclosure of private information breaches the right to privacy. To grant a stay on the basis of such breach, I would have to be satisfied there was good reason to suppose the disclosure would do serious harm to the respondents.

13. There is nothing before me to suggest that a breach of the right to privacy would do so in these circumstances.

14. The application for a stay fails. I will however grant an extension of time to comply with the order until 19 April 2004.

Costs

15. Costs in the cause.