XCHRX TSUN FAT FINANCE CO. LTD. v. COMMISSIONER OF POLICE

HCAL 872/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 872 OF 2000

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D E C I S I O N

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1. This is the Proposed Applicant's application for leave to apply for judicial review. The Proposed Applicant is a licensed money lender and was the pledgee of a quantity of diamonds. Those diamonds were pledged by its customer in order to obtain 4 loans from the Proposed Applicant. This customer defaulted in payment in November 1997.

2. On about 13 March 1998, police officers seized the said diamonds from the Proposed Applicant in exercise of powers conferred by s. 50(7) of the Police Force Ordinance, Cap. 232 in connection with the investigation of suspected criminal offences. On 20 May 1999, the Proposed Respondent informed the Proposed Applicant that criminal investigation had been concluded and no prosecution action would be taken. In the same letter, the Proposed Respondent stated that legal advice was sought from the Department of Justice regarding the disposal of the diamonds. There was a hint that more than one party was claiming ownership of the diamonds. The Proposed Applicant demanded for the return of the diamonds on 25 May 1999. There is no need to go into the details of the subsequent correspondence save to say that by 17 July 1999, the Proposed Respondent made it clear that:-

(a) there were a number of potential claimants to the diamonds and the Proposed Applicant was one of them;

(b) the Proposed Respondent was considering to institute interpleader proceedings.

3. The Proposed Applicant now seeks to quash the decisions made by the Proposed Respondent in about March 2000 not to return to the Proposed Applicant the said diamonds and to commence interpleader proceedings in respect of them.

4. Having examined the materials and heard from the Proposed Applicant, I consider that the alleged wrongful acts of the Proposed Respondent complained of herein were acts clearly following within the private law domain. Save for powers of seizure conferred on the Proposed Respondent by statutes, I am unaware of any power on the part of the Proposed Respondent generally to remove or retain properties belonging to other people. In this respect, there is no difference between the Proposed Respondent and any private individual. If the Proposed Respondent should wrongfully remove and/or retain such properties, he may be liable in the tort of trespass, conversion and/or detinue (as the case may be).

5. In this case, no doubt at one stage the Proposed Respondent relied on the powers conferred by s. 50 of the Police Force Ordinance. However, by 20 May 1999, when the Proposed Respondent stated in effect that there would be no further criminal investigation or prosecution, it does not appear that further reliance could be placed on s. 50 of the Police Force Ordinance. This is because that provision only authorizes the seizure of "article or chattel which is likely to be of value to the investigation of an offence". I do not understand from the materials before me that the Proposed Respondent was relying on s. 50 since 20 May 1999.

6. Finally, Mr Kwok for the Proposed Applicant referred to Ho Shau Hong v. Commissioner of Police [1987] HKLR 945 in support of his application but I consider that decision to be distinguishable on the facts.

7. For the above reasons, I find that the application for leave to apply for the judicial review should be refused.

8. There is power pursuant to RHC Ord. 53, r. 9(5) for the court to order judicial review proceedings to continue as if they had begun by writ. However, I consider that the power is only exercisable at the hearing of the judicial review after leave has been granted.