TAM SZE LEUNG AND OTHERS v. COMMISSIONER OF POLICE

CACV 152/2022, [2023] HKCA 959

On Appeal From [2023] HKCA 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2022

(ON APPEAL FROM HCAL NO 191 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  On 14 April 2023, we issued our judgment in the appeal[1] setting aside the declaration made by Coleman J that the LNCs and the No Consent Regime as operated by the Commissioner are ultra vires sections 25 and 25A of OSCO, and incompatible with Art. 6 and 105 of the Basic Law because the No Consent Regime as operated by the Commissioner is not prescribed by law and is disproportionate.

2.  The Applicants now apply for leave to appeal to the Court of Final Appeal.  This is our decision on this application on the basis of the parties’ written submissions, and should be read in conjunction with our judgment in the appeal.  We continue to use herein the abbreviations adopted in our judgment.

3.  Broadly described, the four questions of law put forward by the Applicants are based on (1) the ultra vires and improper purpose grounds; (2) the prescribed by law and proportionality grounds; (3) the procedural unfairness and fair hearing grounds; and (4) the contention that Interush Ltd v Commissioner of Police [2019] 1 HKLRD 892 was wrongly decided.

4.  We accept that sections 25 and 25A of OSCO have the potential of having a substantial impact on property rights in the sense that bank accounts may be “frozen” as a combined result of the actions or omissions on the part of the police and relevant banks.  The judge at first instance took the view that the case “raise[d] issues of real public importance in respect of a frequently operated regime with potential application to any bank account held in Hong Kong by any person or corporation” and observed that there were other cases where other parties intended to challenge the No Consent Regime on similar grounds.[2] Nothing has been said by counsel for the Commissioner to gainsay the general importance of the subject matter.

5.  There are several grounds put forward by the Commissioner for opposing the present application.  First it is said that the issues have become academic in light of the Restraint Order granted by the Court of First Instance on 11 October 2021.[3] However, because of the perceived importance of the questions involved, the judge entertained the application before him even though it had become academic in the sense that the LNCs in question had been overtaken by the Restraint Order.  For understandable reasons the Commissioner lodged his appeal to this court even though the LNCs had become academic in the instant case.  The Applicants deny that the case is academic because of, inter alia, their entitlement to compensation under section 29 of OSCO and their right to sue for damages.  But we note that compensation is not payable where the person in question has been arrested or a restraint order has been granted (see §94 of our judgment)  and that there is no claim for damages in the Form 86 even taking into account the amendments proposed after the Restraint Order.  We would proceed therefore on the basis that the case is academic in relation to the LNCs and the Applicants’ accounts affected by them.

6.  As recognised in the authorities such as Re Simpson QC (2021)  24 HKCFAR 187 at §10, however, the fact that the case is academic between the immediate parties is not an absolute bar to an appeal.  Leave to appeal may be given where there is a sufficiently great public interest to be served by having a question or questions of public law decided by the Court of Final Appeal.  It seems to us that this is one of those rare cases where the fact that the proceedings had become academic should not detract from the grant of leave to appeal.

7.  Secondly, it is said that the challenge raised by the Applicants directed as it is against the “No Consent Regime as operated by the Commissioner” is, as this Court observed in our judgment at §51, problematic.  We have explained what the problems with that phrase are in our judgment, but whether we are correct could be tested in the Court of Final Appeal.  Further, it is tolerably clear that there are broadly two possible factual scenarios comprised within the Applicants’ complaints (see §49 of our judgment)  and provided the Applicants make clear on appeal to which scenario their arguments are directed, we do not think that the problems will prevent the Court of Final Appeal from adjudicating on the issues in a way that provides general guidance.

8.  The Commissioner also submits that the Applicants’ challenge is not reasonably arguable, but it should be borne in mind that the judicial review succeeded before the judge on the ultra vires ground and its associated improper purpose ground, the prescribed by law ground and the proportionality ground, and that this court granted leave to apply for judicial review on these grounds, except the proportionality ground because we took the view that both the judge and this court were bound by Interush. The Court of Final Appeal is of course not so bound, and the Applicants had expressly reserved the right to challenge Interush should the case go further.  Even in relation to the procedural unfairness and fair hearing grounds which were rejected by the judge as well as by this court, we take the view that given this would be the first case in which the constitutionality and legal validity of the mechanism for issuing LNCs is debated and determined in the Court of Final Appeal, we should lean on the generous side and not truncate the grounds raised which may give rise to a risk of distortion of the arguments.  As the judge below pointed out,[4] his answer to the fair hearing ground depended in part on the decision in Interush in which art. 10 of the Bill of Rights was also relied upon.

9.  Fourthly, the Commissioner has pointed out that although the Applicants wish to challenge Interush, they have not claimed in their Form 86 a declaration, as was sought in Interush, that sections 25 and 25A of OSCO are unconstitutional and invalid.  In our view this may have an impact on the precise contours of the argument and the ultimate remedies that are available if the Applicant succeed, but is not a reason for refusing to grant leave altogether.  The Court of Final Appeal may itself give directions in that regard to ensure that matters that should be before the Court are properly presented.

10.  For the above reasons, we grant the Applicants leave to appeal in respect of the following questions which are modified from the questions put forward by them:

1.  Whether the No Consent Regime operated by the Commissioner and the LNCs issued by the Commissioner in respect of the Applicants’ bank accounts are ultra vires and/or whether the LNCs were issued for an improper purpose.

2.  Whether the No Consent Regime operated by the Commissioner and the LNCs issued by the Commissioner in respect of the Applicants’ bank accounts comply with the constitutional requirements for protection of the fundamental right to property in arts. 6 and 105 of the Basic Law, the rights to private and family life in art. 14 of the Hong Kong Bill of Rights, and the rights to access to legal advice and to the court in art. 35 of the Basic Law and art. 10 of the Hong Kong Bill of Rights including in particular:

(1)  Whether they fulfil the requirements of being prescribed by law.

(2)  Whether they are proportionate restrictions on such fundamental rights.

3.  Whether the No Consent Regime operated by the Commissioner is and the issue of the LNCs in respect of the Applicants’ bank accounts was procedurally unfair at common law and/or in violation of the right to fair hearing under art. 10 of the Hong Kong Bill of Rights in that there was (1) no or no adequate notice of the decision to issue the LNCs, before or after the issue; (2) no or no adequate opportunity to provide meaningful representations as to whether the LNCs should be maintained; (3) no or no adequate reasons given for the decision to issue the LNCs; and (4) no hearing before an independent and impartial tribunal in terms of art. 10.

4.  Whether the case of Interush Ltd v Commissioner of Police was correct in holding that the “consent regime” (as defined in that judgment)  is a necessary and proportionate restriction on the right to enjoyment of private property under arts. 6 and 105 of the Basic Law.

11.  The costs of the application for leave will be in the cause of the appeal, with certificate for two counsel.