LEE CHU MING, MARTIN AND OTHERS v. A PERMANENT MAGISTRATE, EASTERN MAGISTRACY AND ANOTHER

HCAL 1396/2020

[2020] HKCFI 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1396 OF 2020

________________________

________________

___________

R U L I N G

___________

A. Introduction

1.  On 4 July 2020, I heard an ex parte application for leave to apply for judicial review and for ancillary interim injunctive relief.  The applications arose in intended administrative law proceedings dealing with the following circumstances.

2.  On 18 April 2020, the Applicants were arrested and charged with incitement to knowingly take part in unauthorised assemblies and/or organising and knowingly taking part in unauthorised assemblies.  The charges relate to unauthorised assemblies which took place on 18 August 2019, 1 October 2019 and 20 October 2019.

3.  The arrests led to prosecution of the Applicants, whose cases were brought before a magistrate on 18 May 2020. On 12 June 2020, transfer bundles were served on the Applicants’ solicitors relating to the transfer of the case to the District Court.  It had originally been expected that transfer might have taken place at a Magistrates’ Court hearing on 15 June 2020, but in the circumstances that some of the defendants to the charges indicated they might wish to take further legal advice and possibly challenge the intended transfer, the matter was adjourned.  However, since that time, those defendants have confirmed that they will not place any obstacle in place of transfer, which it is expected will therefore occur at the next hearing before the Magistrates’ Court on 15 July 2020.

4.  Subsequent to the service of the transfer papers on the Applicants’ solicitors, the Applicants were also served on 26 June 2020 with search warrants in respect of mobile telephone and other electronic devices owned by each of them, and which had been taken from them and held by the police since the date of arrest, 18 April 2020.

5.  The search warrants are all dated 26 June 2020, were issued by a Permanent Magistrate of the Eastern Magistracy, and are in similar terms.  Amongst the terms, the search warrants empower the Police officers executing them to enter the digital devices, and to search for and take possession of articles relevant to the investigation in any format, including all digital contents of the digital device.  The search warrants were obtained, as is entirely typical, on the ex parte application of the Police.

6.  An application was made to the Permanent Magistrate for a hearing to be conducted inter partes to set aside or vary the search warrants.  But the Permanent Magistrate declined to conduct any hearing on the basis that she lacked jurisdiction.

7.  The Applicants’ application for leave to apply for judicial review primarily seeks an order to quash the search warrants, as well as various ancillary orders.  There are four intended grounds of review:

(1)     the search warrants were issued ultra vires, because they lack particularity, are oppressive in scope, and provide a licence to ‘fish’;

(2)     the retention of the mobile devices without warrant was beyond a reasonably necessary time;

(3)     there was a failure to inform of any application for the search warrants, when there were no circumstances justifying secrecy and immediacy;

(4)     the Permanent Magistrate was wrong to decline jurisdiction.

8.  At the hearing on 4 July 2020, I granted leave to apply for judicial review.  I also granted an interim injunction to restrain the Commissioner of Police from executing the search warrants, until a return date hearing on today, 10 July 2020.

9.  By inter partes summons dated 6 July 2020, the applicants seek a continuation of that injunction until the application for judicial review is heard.  As at the ex parte hearing, the applicants are represented by Mr Robert Pang SC and Mr Albert NB Wong, of Counsel.

10.  The 1^st respondent Permanent Magistrate takes a neutral stance in these proceedings, and her attendance has been excused.

11.  The 2^nd respondent, the Commissioner of Police, is represented by Mr William Liu, Deputy Law Officer (Civil Law) (Ag) and Mr Ken Ip, both from the Department of Justice.  Mr Liu submits that the injunctive order should be lifted and replaced by an undertaking (“Undertaking”) from the Commissioner that, on the condition that the Cyber Security and Technology Crime Bureau of the Police is allowed to commence the passcode unlocking process of the mobile phones covered by the search warrants and subsequently generate the corresponding data image (if the mobile phones can be unlocked), the Police should seal up such data image, and should not inspect any digital contents in the mobile phones or such data image (if so generated), until the disposal of this judicial review application at the Court of First Instance level.

12.  The contest this morning is, therefore, whether to maintain the injunction in its current form or to accept that Undertaking in its place.

13.  It may be important to point out that, other than recognising that I have already considered there to be a sufficient basis for the grant of leave to apply for judicial review, it is not necessary to delve into the merits of the judicial review challenge.  I make no comments on those merits, which will be dealt with at the substantive hearing of the application for judicial review.

B.      Applicable Test

14.  I do not think there is any real dispute between the parties as to the relevant principles applicable on applications for the grant of interim relief in public law cases.  Put shortly, the usual principles for the grant of an interim injunction apply, albeit with necessary modifications to take account of the public law context.

15.  That means the court must address the questions (a) whether there is a serious issue to be tried in the judicial review, (b) if so, whether damages are a sufficient remedy for either party, and (c) if damages are not sufficient for both parties, whether the balance of convenience should lie in favour or not in granting the interim relief.

16.  In the public law context, when dealing with the question of the balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application.  The court must take into account the public interest in the balancing exercise.  Sometimes there may be different aspects of the public interest which require recognition and inclusion in the balancing exercise.

17.  Essentially, it is the balance of convenience taking into account the interests of the parties and the wider public interest that gives rise to the main focus on this application.

C.      Analysis

18.  It may be helpful if I clear up one point of confusion which may have arisen from something which I said in my short oral ruling on 4 July 2020.  I referred to the fact that Mr Pang informed me that the service of transfer bundles on the applicants was effectively the indication that the case for the prosecution has been prepared and that the matter is ready to go to a trial in the District Court.  But I did not understand Mr Pang to be submitting to me that it would not be open to the prosecution to adduce any further evidence after the transfer, or even necessarily that the investigation has been completed.  I understood that the transfer bundles would contain the prosecution’s evidence available up to that point, but that further evidence may perhaps be added afterwards.

19.  Indeed, as Mr Pang accepts, there is an ongoing duty of investigation and it is potentially open to the prosecution to continue to adduce evidence until the close of the prosecution case at trial. But the point made by reference to the transfer bundles having been served was that there did not appear to be any particular urgency in the execution of the search warrants.

20.  I therefore accept Mr Liu’s submission that it is possible that the digital contents in the seized mobile phones of the applicants may contain relevant information that adds value to the Police’s investigation.  I also accept that it is or may be in the interests of justice for the Police to obtain and review relevant evidence, and to do so timeously. There is also clearly a wider public interest in the efficient administration of justice, including in the avoidance of any unnecessary delay.

21.  With the benefit of evidence filed making the same point, Mr Liu submits that the process of unlocking mobile devices takes time, in that it might be achieved within a few hours but it may last up to a few months.  Therefore, he says that substantial delay might be caused if the injunctive order remains in place pending the disposal of the judicial review application.

22.  Mr Liu also says there are signs already of delaying tactics, though I do not think I am in a position to judge whether such tactics have in fact been deployed.  The applicants say, and I put it no higher than that, that they have no desire to delay the criminal proceedings. In any event, I accept that the timely completion of investigations is in all parties’ interests, including the interests of the Applicants in preparation for their defence.

23.  Mr Liu submits there is no prejudice to the Applicants.  As he points out, any undertaking to the Court is a solemn one and the proposed undertaking offered by the Commissioner would prevent the Police from reviewing the digital contents in the seized mobile phones and any data image before the resolution of the judicial review application.

24.  Mr Pang has raised concerns about trust. However, I hope I have made clear during the discussions between Bench and Bar that any relevant question of trust is whether I place trust in the Undertaking.  I have made clear that if I accept the Undertaking, it would be because I trust the person who offers it, and that if I do not accept the Undertaking it would not be because I do not trust the person who offers it. Rather, it would be on the wider balancing exercise which I must perform.

25.  Mr Liu says that all the Police are seeking to do is simply to conduct the passcode unlocking exercise in order to save time in future, in the event that the judicial review application is dismissed.  Therefore, if the Undertaking is accepted, there is no proper basis for any concern that the judicial review would be rendered nugatory.  He emphasises that what is proposed will not lead to any Police officers, and certainly not the investigating officers, seeing or being able to see the digital materials generated from unlocking the mobile devices.  By reference to the evidence, he says the process involved is similar to the ordinary process which is adopted in handling claims to legal professional privilege.

26.  Mr Liu also submits that, in any event, any suggested infringement of the Applicants’ privacy rights is sufficiently protected by the giving of the Undertaking, which satisfies the well-settled four-step proportionality analysis designed to strike a proper balance between, in this case, the Applicants’ rights and the public interest.

27.  Mr Pang acknowledges these points, but emphasises that the very purpose of the judicial review is to highlight the fact that everyone, including the Permanent Magistrate who granted access to “all digital contents” is in the dark as to how intrusive such a search can be.  He also says that where the Commissioner’s evidence does not fully explain how the interests of the Applicants will be protected in the interim, that fact remains an issue that can only be resolved through the determination of the judicial review itself.

28.  Put shortly, Mr Pang in effect submits that any commencement of the execution of the search warrants at this stage would still amount to a denial of the rights to be heard in a judicial proceeding about the setting aside or variation of the terms of the search warrants.  He says that proceeding with the unlocking pursuant to the suggested Undertaking would still amount to an interference with the Applicants’ access to justice rights.

29.  At bottom, on the balance of where the lower risk of injustice lies, Mr Pang submits that there would be minimal prejudice to the Commissioner who has sufficient evidence to proceed to trial and who did not apply for the warrants for two months whilst the phone was in possession of the Police.  He says the risk of injustice to the Applicants is higher.

30.  I acknowledge that the delay in seeking the search warrants by the Police may have been as the result of seeking legal advice from the Department of Justice, which perhaps took longer than might have been preferred.  But the chronology remains the same.

31.  The Police had the mobile devices in their possession for more than two months after they had been collected on the Applicants’ arrest.  Before the search warrants were obtained, the transfer papers were served.  The transfer itself will not take place until next week at the earliest, and the first hearing in the District Court may be one month from now, say mid-August 2020.  Even if pleas are taken on that occasion, the likelihood of the matters being brought to trial within only a few months is not very high for various practical reasons, including the diaries of the Court and (if taken into consideration) those of Counsel.

32.  On the other hand, the parties to these proceedings are of the same mind that they should be dealt with on an expedited basis. They propose directions which would complete the filing of evidence by 7 August 2020.  Whether the substantive hearing is fixed for one or two days, I would expect it to be dealt with well within August 2020.  If the injunction is to be continued, it need only being continued for a relatively short period of time.  That time is to be considered against the time needed for unlocking the mobile devices, which might be months, but which might be considerably shorter.

D.      Result

33.  In those circumstances, and balancing the interests of all parties and the wider public interest, it seems to me that the appropriate course in the exercise of my discretion is to order the interim injunction to be continued until the determination of the application for judicial review.

34.  I so order.

35.  I also give the following directions:

(1)     the Applicants will have an opportunity to file any further evidence in support of the application for judicial review by 5pm on 22 July 2020;

(2)     the 2^nd Respondent may file evidence in opposition to the application for judicial review by 5pm on 4 August 2020;

(3)     no further evidence may be filed without leave;

(4)     the substantive hearing will be heard at 10.30am on 13 August 2020 (with 14 August 2020 reserved, so with a time estimate of 1 to 2 days);

(5)     the Applicants will file their skeleton submissions by 5pm on 7 August 2020;

(6)     the 2^nd Respondent will file his skeletons submissions by 5pm on 10 August 2020.

36.  I reserve all questions of costs to the substantive hearing.