Case Detail

HCMP 1218/2020

[2022] HKCFI 3003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

________________________

BETWEEN

	LAI CHEE-YING	Plaintiff
	and
	COMMISSIONER OF POLICE	Defendant

________________________

Before:

Hon Wilson Chan J in Chambers (Not Open to Public)

Date of last written submissions:	20 September 2022
Date of Decision:	30 September 2022

________________________

D E C I S I O N

________________________

A. INTRODUCTION

1. This is my determination pursuant to the protocol put in place on 19 November 2020, and as varied on 26 February 2021, 4 August 2022 and 1 September 2022 (“Protocol”), arising out of the search operation which took place on 10 August 2020 at, inter alia, the plaintiff’s residence resulting in the seizure of, inter alia, the plaintiff’s two iPhones namely (i) a white iPhone 11 Pro Max (Police reference: 498) and (ii) a green iPhone 11 Pro Max (Police reference: 499) (together the “Seized Materials”).

A1. Burden on the plaintiff

2. In granting the Protocol, it was decided (inter alia), in line with well-established authorities, that it falls upon the plaintiff to make good any legal professional privilege (“LPP”) or journalistic material (“JM”) claim. Hence, pursuant to paragraph 11(b) of the Protocol, the plaintiff bears the burden of specifying (by way of affidavit and written submissions) the “special basis or bases and the full factual context upon which” any of the Seized Materials was/were “said to constitute” LPP or JM. There was no appeal against the Protocol. In fact, the plaintiff’s solicitors, in a recent letter dated 28 July 2022, stated that they are “well aware that in order to establish those claims and assist the Court, the ‘full factual context’ of those claims must be set out”.

A2. Summary of claims

3. The plaintiff has now filed his 2^nd Affidavit dated 1 August 2022 (“Lai 2^nd”) and skeleton submissions (“P Skel”) pursuant to paragraph 11(b) of the Protocol, as well as written submissions in reply (“P Reply Skel”) pursuant to paragraph 13 of the Protocol. As things now stand:

(1) The plaintiff makes and maintains his LPP claim over items 28 to 76^{^[1]} (ie 49 items) (“LPP Claims”). Upon taking into account duplications^{^[2]}, there are in fact only 40 individual LPP claims; and
(2) The plaintiff makes and maintains 8,098 JM claims (“JM Claims”).

A3. Summary of the Commissioner’s position

4. As mentioned above, the burden lies squarely on the plaintiff to make good his alleged LPP and JM claims. The Commissioner of Police (“Commissioner”) submits that the plaintiff has failed to properly substantiate (i) most of his LPP Claims and (ii) all of his JM Claims.

5. In particular, so far as the LPP Claims are concerned (see Section B below):

(1) Having considered the further information contained in P Skel, the Commissioner agrees not to dispute the LPP claims in relation to: (i) communications between the plaintiff and his Senior Counsel after his arrest for the purpose of seeking legal advice (§§15, 16(6) P Skel); and (ii) communications between the plaintiff and his legal representatives in relation to the XXXXXX action against XXXXXXXX (§§15, 16(5) P Skel).
(2) As to the remaining LPP claims (“Remaining LPP Claims”) (see: Section B2.2 below), the Commissioner submits that the plaintiff is clearly unable to make out the only basis of privilege relied upon, namely litigation privilege. By way of an overview:
(a) To properly invoke litigation privilege, it falls upon the plaintiff to satisfy the court that (i) litigation must be in progress or in contemplation; (ii) the communication must have been made for the sole or dominant purpose of conducting that litigation; and (iii) the litigation must be adversarial, not investigative or inquisitional: Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, §102.
(b) First, the Remaining LPP Claims were instant messages on the ‘Signal’ application which came into existence prior to the search and arrest operation on 10 August 2020. Before the said operation, the criminal investigation against the plaintiff and others remained highly confidential and was not disclosed to the plaintiff. The plaintiff could not have been aware that there was any investigation, let alone possible prosecution against him before the operation. Hence, on the basis of the available information from the plaintiff, there is no basis whatsoever to satisfy the requirement that litigation under the National Security Law (“NSL”) was reasonably contemplated or anticipated. Putting the plaintiff’s case to its highest, there was “a mere possibility of litigation” or a “general apprehension of future litigation”, which (as explained below) does not, as a matter of law, satisfy the requirement so as to attract the protection of LPP. See Section B2.2(i) below.
(c) Second, in any event, there is no evidence to substantiate any suggestion that the materials covered by the Remaining LPP Claims were created for the dominant purpose of conducting litigation. Even based on the plaintiff’s own submissions, the communications were for the purpose of “express[ing] concern over the potential interference of the NSL with the Plaintiff’s constitutional rights” (§11 P Skel), making arrangements to meet up (§14 P Skel), or “to ‘brainstorm’ how best to protect themselves from an anticipated interference into their constitutional rights by the NSL” (§13 P Skel). These communications were, at best, only general discussions in light of developments in society. See Section B2.2(ii) below.
(d) Third, other than the XXXXXX action against XXXX XX which is no longer in dispute, the only actual litigation mentioned by the plaintiff in his evidence was the Tony Chung case (§15 P Skel). However, the plaintiff is not a party or “client” in that matter and the lawyers involved in the relevant discussions are not Chung’s lawyers. Hence, no litigation privilege attaches to the relevant discussions by third parties outside the ordinary remit of the proceedings.

6. As to the JM Claims (see Section C below):

(1) As mentioned above, it was decided by the court, as embodied in paragraph 11(b)(ii) of the Protocol, that it falls upon the plaintiff to prove and make good any JM claims, including to file affidavit and written submissions specifying “the special basis or bases and the full factual context upon which the Disputed JM Materials were said to constitute JM” (Emphasis added). In the face of such clear requirements set out in the Protocol, in Lai 2^nd, the plaintiff has only supplied generic and general descriptions. Indeed, the descriptions - quite apart from their brevity and complete lack of particulars - are self-evidently unhelpful in that they merely contain circular, uninformative self-serving assertions such as “discussions for the purpose of publications by Next Media”, “Images and/or Graphics prepared for consideration for publication by Next Media” or even “self-explanatory”: §23 Lai 2^nd.
(2) Indeed, although JM is given a wide definition under section 82 of the Interpretation and General Clauses Ordinance, Cap 1 (“IGCO”), 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. Among others, the plaintiff must demonstrate that the material in question is directed to informing public debate and on other matters of public interest: A v Commissioner of Police [2021] 3 HKLRD 300, §26.
(3) Further or alternatively, and insofar as is necessary for the Commissioner to rely on this, if the material in question is created, acquired or received for the purpose of a crime, then it would not qualify as JM: R v Central Criminal Court, ex p Bright [2001] 1 WLR 662, applied in A v Commissioner of Police (ibid), §27.

7. This Decision shall first deal with the LPP Claims, before addressing the JM Claims.

B. LPP CLAIMS

B1. Relevant legal principles on Litigation Privilege

8. LPP consists of two categories: legal advice privilege and litigation privilege: Three Rivers (supra), §10. The plaintiff only asserts litigation privilege for his LPP Claims.^{^[3]}

9. Litigation privilege, unlike legal advice privilege, is not confined to communications involving legal advice. It is “wider than [legal advice privilege] but it arises only when litigation is in prospect or pending”. Unlike legal advice privilege, “[f]rom that moment on, any communications between the client and his solicitor or agent, or between one of them and a third party, will be privileged if they come into existence for the sole or dominant purpose of either giving or getting legal advice with regard to the litigation or collecting evidence for use in the litigation” (Phipson on Evidence (20^th ed), §23-79).

10. In Three Rivers (supra), Lord Carswell said at §102 that:

“…communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communication must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitional.”

See also: China Forestry Holdings Co Ltd v KPMG[2020] HKCFI 2614, §13(2).

11. Clearly, given the wider ambit of the litigation privilege (and the potentially wide application of the privilege as it may extend well beyond communications with legal advisors which consist of legal advice), the requirements/conditions must be strictly adhered to.

12. Hence, in relation to the court’s approach to the assessment of evidence in support of a claim for privilege, it has been stated that it is necessary to subject the evidence “to ‘anxious scrutiny’ in particular because of the difﬁculties in going behind that evidence”. “The Court will look at ‘purpose’ from an objective standpoint, looking at all relevant evidence including evidence of subjective purpose”. Further, it is desirable that the party claiming such privilege “should refer to such contemporary material as it is possible to do without making disclosure of the very matters that the claim for privilege is designed to protect”: Phipson (supra), §23-79.

13. In Starbev GP Ltd v Interbrew Central European Holding BV[2013] EWHC 4038 (Comm) at §11, Hamblen J (as Lord Hamblen of Kersey JSC then was) set out the requirements for a claim for litigation privilege (as summarised in Hollander,Documentary Evidence in Hong Kong (2^nd ed) §16-004):

(1) The burden of proof is on the party claiming privilege to establish it.
(2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in a witness statement are not determinative and are evidence of a fact which may require to be independently proved. The court will scrutinise carefully how the claim to privilege is made out and the witness statements should be as specific as possible.
(3) The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation. As Eder J stated in Tchenguiz v Director of the SFO [2013] EWHC 2297 (QB) at §48(iii): “Where litigation has not been commenced at the time of the communication, it has to be ‘reasonably in prospect’; this does not require the prospect of litigation tobe greater than 50% but it must be more than a mere possibility”.
(4) It is not enough for a party to show that proceedings were reasonably anticipated or in contemplation; the party must also show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with such anticipated or contemplated proceedings. Where communications may have taken place for a number of purposes, it is incumbent on the party claiming privilege to establish that the dominant purpose was litigation. If there is another purpose, this test will not be satisfied.

14. The dominant purpose is a matter for a court to determine after consideration of the relevant evidence. It is not one that will necessarily be determined in favour of the party claiming the privilege simply because its deponent asserts that the essential elements of litigation privilege are present: Passmore on Privilege (4^th ed), §3-071 citing Three Rivers District Council v The Governor and Company of the Bank of England (No 5) [2003] QB 1556, §35.

15. Affidavits claiming privilege should be “specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect”: West London Pipeline & Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm), §53.

B2. Analysis on LPP Claims

B2.1 Undisputed claims

16. As mentioned above, the Commissioner does not dispute the LPP Claims in respect of (i) communications between the plaintiff and his Senior Counsel after his arrest for the purpose of seeking legal advice; and (ii) communications between the plaintiff and his legal representatives in relation to the XXXXXX action against XXXXXXX.

17. As pointed out by the plaintiff in paragraph 5 of P Reply Skel, the claims that fall within the above 2 categories are items 53, 59 to 60, and 66 to 68. Having inspected the said documents in question, I would agree with the plaintiff in that regard. After taking out these items, the Remaining LPP Claims are items 28 to 52, 54 to 58, 61 to 65, and 69 to 76.

B2.2 The Remaining LPP Claims

18. Based on information provided by the plaintiff, all the Remaining LPP Claims consist of communications between the plaintiff and other parties during the period from 24 June 2020^{^[4]} to 9 August 2020, which predate 10 August 2020, being the date of the search and arrest operation during which the plaintiff was arrested.^{^[5]} In other words, all the Remaining LPP Claims concern materials which came into existence prior to the arrest and search operation.

19. Hence, for the plaintiff to succeed in his LPP claims, he needs to make out the litigation privilege, specifically that (i) litigation (in which the plaintiff is a party) was in contemplation; and that (ii) the communication was made for the sole or dominant purpose of conducting that litigation. It is the Commissioner’s case that the plaintiff fails on both limbs, either of which suffices for the Remaining LPP Claims to be dismissed.

(i) Litigation in contemplation?

20. First, as a matter of indisputable fact, prior to the arrest and search operation, the criminal investigation against the plaintiff and related persons was highly confidential and was not disclosed to the plaintiff (§12, 4^th Affirmation of Hung Ngan dated 31 August 2022 (“Hung 4^th”)). The plaintiff could not have been aware that there was any investigation, let alone possible prosecution against him before the operation on 10 August 2020.

21. Second, it follows that, perhaps unsurprisingly, the plaintiff has adduced no objective evidence (documentary or otherwise) to substantiate the bare assertions contained in Lai 2^nd as to his alleged contemplation of litigation prior to his arrest.

22. In the words of the learned editor of Passmore (supra) §3-174:

“In summary, the litigant - especially the defendant (since a claimant as the allegedly aggrieved party will know sooner than his opponent, who is unlikely to know the claimant’s state of mind in terms of the extent of his willingness or readiness to sue, if proceedings are likely) - must appreciate that events have occurred which may, in time, cause him to sue or to be sued. Clearly, some form of notification of impending litigation, such as a letter before action, will minimise or remove debates as to whether litigation is properly anticipated at a particular point for the purpose of the privilege. At the other extreme, absent a notification, the party who claims to have anticipated litigation against him must at least be able to point to (i) a set of facts on which (ii) an identifiable claimant is (iii) more likely than not to sue him in respect of (iv) a given cause of action (even if it has not accrued) for (v) a particular type of remedy together with (vi) some justification for his belief that such litigation is thought to be probable or likely.” (Emphasis added)

23. I agree that the plaintiff has singularly failed to condescend upon the necessary particulars as to the basis for his contemplation of litigation under the NSL. This is especially pertinent where it is made clear under NSL 39, that the “Law shall apply to acts committed after its entry into force for the purpose of conviction and imposition of punishment”. Accordingly, by definition, acts committed prior to the coming into force of the NSL (or the mere fact of the promulgation of the NSL itself) would not and cannot, without more, have given rise to any “contemplation” of litigation under the NSL. Hence, on the basis of the dearth of objective evidence from the plaintiff in these proceedings, it defies belief that the plaintiff began to labour under any contemplation of litigation under the NSL on 24 June 2020, prior to the NSL’s promulgation on 30 June 2020.

24. Third, as to what Lai 2^nddoes say, the plaintiff’s bare assertions are clearly insufficient and fall to be rejected.

(1) So far as the Remaining LPP Claims are concerned (which do not relate to the “eventual XXXXXX proceedings against XX XXXXXX”), the plaintiff asserts that “this is the protected sphere of communications in which various parties, anticipating being caught by the new NSL, discuss how to challenge it (which is therefore the defence in criminal proceedings) - namely through constitutional arguments” (§17 P Skel).
(2) However, I agree it is singularly far from sufficient for the plaintiff to merely assert in evidence that the plaintiff “began taking an interest as to whether such a law would affect our constitutional rights” and that the plaintiff “feared” that the NSL would be used against him: §§14-15 Lai 2^nd.
(3) Such contention is comparable to that advanced by the intervener (British American Tobacco (Investments) Ltd (“BAT”)) in United States of America v Philip Morris Inc and others [2003] EWHC 3028. A summary of the facts is helpfully found in Passmore (supra), §§3-169 and 3-170, as follows:
“In United States of America v Philip Morris Inc, the US government sought to depose an English solicitor for the purposes of a US criminal prosecution against tobacco companies. The deposition was challenged on the basis that the solicitor would be asked about matters that were covered by both advice and litigation privileges. The solicitor’s firm had advised the respondents, including BAT, generally in relation to claims arising from smoking related illnesses between 1985 and 1994. It was a central part of the US government’s criminal case that tobacco companies had allegedly destroyed or suppressed documents that might damage them in litigation. BAT had sought the solicitor’s advice because the then increasing volume of tobacco litigation in the United States, coupled with the fact that claims were being made against its parent company, alerted it to the need to consider its own position. BAT was concerned that it might in due course be sued itself and that it might be required to disclose documents generated by its group’s R&D department for the purposes of proceedings ongoing in the US against a related company. The solicitor’s advice had included the creation and implementation of a document management policy for his clients.
BAT accordingly contended that all communications between its solicitor and third parties made between 1986 and 1994 relating to document review procedures were made for the dominant purpose of preparing for litigation already in contemplation and were in principle subject to litigation privilege. …” (Emphasis added)
(4) At first instance, it was held by Moore-Bick J at §§46-47 that:
“46. …The requirement that litigation be ‘reasonably in prospect’ is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.
47. I am unable to accept that litigation against BATCo itself was reasonably in prospect in 1985 and 1986 when Lovells were first instructed. I quite accept that at that time Mr Cannar thought it a distinct possibility that sooner or later someone might make a claim against BATCo for smoking-related illness, if only because the burgeoning litigation in the United States could be expected to provide an example to claimants in other countries, but at that stage no claim had been made or even threatened. The fact that Mr Cannar considered it desirable for BATCo to put its house in order because of a general apprehension of future litigation is not in my view sufficient to entitle it to claim litigation privilege in respect of communications made for that purpose. As time went on, of course, the position changed, but it is sufficient for present purposes to say that I am not persuaded that all communications which Mr Foyle might be asked to disclose in the course of the proposed examination are inevitably privileged on this ground.” (Emphasis added)
(5) To borrow Moore-Bick J’s words, in the present case, putting the plaintiff’s case to its highest, where there was no litigation commenced or even threatened, and merely by the passing of the NSL, the plaintiff developed no more than a “general apprehension of future litigation” because of general circumstances surrounding the plaintiff and those he sympathises with. This is akin to the concern by BAT that being engaged in the tobacco business, it was alerted to an increasing risk of litigation, given an “increasing volume of tobacco litigation in the United States, coupled with the fact that claims were being made against its parent company”. This was rightly rejected as being insufficient.
(6) On appeal, in United States of America v Philip Morris Inc and others [2004] 1 CLC 811, the English Court of Appeal dismissed BAT’s appeal and affirmed the first instance decision. Relevantly for present purposes, Brooke LJ (with whom Chadwick and Scott Baker LJJ agreed) held at §68 that “it is quite clear that the judge correctly considered that a ‘mere possibility’ of litigation did not suffice. He was also correct to conclude that the fact that there was ‘a distinct possibility that sooner or later someone might make a claim’ was insufficient. So was ‘a general apprehension of future litigation’.”
(7) At §69, his Lordship continued to consider that “it would be impossible to conclude that litigation against BATCo itself was reasonably in prospect when that company engaged Mr Foyle's services to advise it. The last time anyone had sued that company had been as long ago as 1969, and there had been no letters before action or other precursors of contentious litigation when Mr Foyle was advising it between 1986 and 1994. In his third witness statement the most that Mr Gilbey could say was that ‘it would be reasonable for BATCo to have anticipated that it might be made a defendant to litigation in the US or elsewhere’. This tentative assessment accords well with the contemporary view…” (Emphasis added).
(8) See also Starbev (supra) (cited in paragraph 13 above), which makes clear at §11 that “it is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation”.
(9) Indeed, the plaintiff’s position can be contrasted with the decision of Director of the Serious Fraud Office v Eurasian Natural Resources Corpn Ltd [2019] 1 WLR 791. In that case, the English Court of Appeal considered that the “contemporaneous documents” adduced by the party asserting privilege (ENRC) demonstrated that “it was ‘aware of circumstances which rendered litigation between itself and the SFO a real likelihood rather than a mere possibility’” (§92). Hence, the court concluded at §93 that “the whole subtext of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a civil settlement”, and at §96 that “when the SFO specifically makes clear to the company the prospect of its criminal prosecution (over and above the general principles set out in the Guidelines), and legal advisers are engaged to deal with that situation … there is a clear ground for contending that criminal prosecution is in reasonable contemplation”.
(10) That, in contrast, no contemporaneous evidence has been adduced by the plaintiff in the present case is particularly telling. There is no reason for the plaintiff, assisted by a strong team of counsel and experienced solicitors, to have withheld relevant information and evidence to make good his claims. The only plausible inference is that no such evidence is available.

25. So far as the plaintiff refers to actual litigation which took place during this period, this was apparently concerned with third parties (ie the students who were arrested) instead of the plaintiff himself. While the plaintiff alleged that the arrest of students gave rise to concern over “NSL’s potential interference into [the plaintiff’s] constitutional right”, he does not in fact go so far as to make clear that this fact gave rise to, or affirmed, any contemplation of litigation against himself (see §17 Lai 2^nd). So far as the plaintiff does say that he feared that the NSL “was being used against other persons, and likely against [himself]” (§17 Lai 2^nd), such general “fear” has been addressed above. Indeed, the true purpose of those discussions appears to be to consider “how they might assist in the Tony Chung case” (§15 Lai 2^nd) which is not the same as being in contemplation of litigation against the plaintiff.

26. Fourth, the fact that legal professionals were involved does not assist the plaintiff. As Etherton LJ held in Westminster International BV v Dornoch Ltd BV [2009] EWCA Civ 1323, §36:

“Each case turns on its own facts and will be judged in the light of the facts as a whole. Neither a statement on behalf of the insurer as to its state of mind, nor the mere fact of retaining solicitors, will separately or together necessarily be sufficient to satisfy the requirements for litigation privilege.” (Emphasis added)

27. In the premises, I hold that the plaintiff has clearly failed to discharge the burden of establishing that litigation was reasonably contemplated or anticipated when the communications pre-dating his arrest and the search operation came into existence. This is sufficient to dispose of the Remaining LPP Claims. Out of completeness, I shall briefly discuss the Commissioner’s further submission that in any event, the further requirement for litigation privilege is also not satisfied by the plaintiff.

(ii) For the sole or dominant purpose of “conducting” the “litigation”?

28. First, the plaintiff’s evidence as to the purpose of the relevant materials is again inadequate. Throughout Lai 2^nd, the plaintiff does not in fact say that the “purpose” of the relevant communications was for the conduct of his litigation. At most, it is asserted that those communications “were made with the expectation of confidentiality regarding actions and strategies for this legal battle” (§11 Lai 2^nd).

29. Similarly, P Skel, at most, refers to the alleged purpose of items 54 and 61 to 63 (which is dealt with below). There is no submission as to the purpose of the remaining items.

30. This is particularly so, as it is observed that some members of the plaintiff’s “NSL team” are not even lawyers.^{^[6]} Communications with these persons could not, without proper explanation/basis, have been made for the purpose of seeking advice for contemplated litigation. Indeed, there are suggestions that while legal advice given by non-lawyers in respect of litigation might attract litigation privilege, an “additional quality that needs to be emphasised in such cases is that the non-lawyer is acting in a professional capacity”, as opposed to a “discussion with a friend who is a professional” (which is not privileged): Passmore (supra), §3-474; Smith v Daniell (1874) LR 18 Eq 649, 654.

31. Second, it is difficult to see how this element is satisfied even taking P Skel at its face value.

(1) As to item 54, §11 P Skel asserts (without evidential basis in Lai 2^nd) that “as can be seen by items 60 and 61, the purpose of that communication was to express concerns over the potential interference of the NSL with the Plaintiff’s constitutional rights”. To “express concerns” clearly does not equate to the “conduct” of litigation.
(2) On items 61 to 63, it is said at §14 P Skel that “further arrangements are made for the NSL team to meet up and conduct the aforementioned brainstorming”.
(3) However, these loose remarks are self-evidently insufficient to make out the relevant purpose of “conducting the litigation”. According to Phipson (supra), §23-81:
“In Rawlinson & Hunter Trustees SA v Akers, the Court of Appeal emphasised that the purpose must be conducting the litigation. There are a number of communications which could logically be regarded as being in connection with litigation but which are not for the purpose of conducting the litigation. An example is communicating with litigation funders. As Popplewell J put it Excalibur Ventures Plc v Texas Keystone Inc:
‘If [counsel’s] formulation were correct, it would cover the case of a litigant who buys a new suit in order to appear as a witness and would make all information and documents in relation to that purchase privileged because its dominant purpose would be the conduct of the litigation. In my view, that illustrates the fallacy in the width of his formulation.’”
(4) So far as these messages were sent to other members of the “NSL team”,^{^[7]} this likewise has no bearing on the nature of those communications. On the contrary, it is confirmed at §§13-14 P Skel that the “purpose of this team is to “brainstorm” how best to protect themselves from an anticipated interference into their constitutional rights by the NSL”. This again simply does not equate to the conduct of any litigation, whether contemplated or otherwise. These amounted to no more than general discussions on the potential impact of the NSL. The brainstorming was not conducted for the purpose of enabling legal advice to be sought or given, and/or seeking or obtaining evidence or information to be used in or in connection with any anticipated or contemplated proceedings.
(5) As to items 37 and 64, these communications were apparently made for the purpose of exploring “how [the NSL team] might assist in the Tony Chung case” (§15 P Skel). The plaintiff is not a party to the Tony Chung case. Hence, the plaintiff has in fact confirmed that these communications were not for the purpose of conducting litigation. No litigation privilege attaches to the relevant discussions by third parties which are outside the ordinary remit of the proceedings.

32. In the circumstances, on the basis of the evidence before the court, the dominant purpose test is clearly not satisfied.

33. Third, for completeness, so far as the plaintiff seeks to rely on the Lyell^{^[8]} exception (by citing Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420, §§65-66) that the materials subject to the Remaining LPP Claims are nevertheless privileged, viz because they were compiled or selected for obtaining legal advice (§17 P Skel):

(1) The relevant principles can be found in Wong Wai Keung v Commissioner of Police[2022] HKCFI 374, at §38, where this court rejected a related party’s reliance on the Lyell exception. Similar considerations apply to the instant case.
(2) First, the plaintiff (similarly) “has not provided any explanation as to why or how the compilation of the Disputed Materials could give any clue on the legal advice” (Wong Wai Keung (ibid), §38(1)). There is simply no attempt by the plaintiff to explain how the exception can be said to apply in the present case, specifically as to how the disclosure of the disputed materials can “fall within the ‘trend of advice doctrine’” (§17 P Skel). Indeed, there is simply no evidence that any compilation or selection exercise was in fact carried out. In fact, this assertion made in P Skel is not borne out by Lai 2^nd; clearly these are questions of fact and such factual matters cannot merely be advanced by way of legal submission.
(3) Second, at most, the plaintiff relies on the fact that instant messages were sent or forwarded to lawyers on ‘Signal’. However, the “general rule [remains] that non-privileged documents do not, without more, acquire privilege simply because they are copied by a solicitor for purposes of an action. A non-privileged original document handed to a solicitor for purposes of an action and not copied would seem to be even more remote from any sustainable claim to privilege”: Wong Wai Keung (ibid), §38(1), citing Ventouris v Mountain [1991] WLR 607, at 616F per Bingham LJ (as he then was).
(4) Third, (again like the plaintiff in Wong Wai Keung (ibid)), “there is no suggestion by the plaintiff that the Disputed Materials are documents collected, selected, or compiled by the plaintiff’s legal representatives/advisors” (Wong Wai Keung, §38(2)). Indeed, “the ratio of [Lyell v Kennedy] is … that where the selection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged” (Emphasis added): Ventouris v Mountain (supra), 615F. Hence, an exchange of messages clearly cannot fall under the Lyell exception.
(5) Accordingly, any such general and unsubstantiated reliance on the Lyell exception by the plaintiff must be rejected.

34. The plaintiff also relies on the common interest privilege (§§8, 16(3) P Skel). However, the “[c]ommon interest privilege does not enable a claim for privilege to be made when previously none was available because it is adjunct to legal advice privilege and litigation privilege, not a separate head of privilege”: Phipson on Evidence (supra) §24-09.

(1) Hence, in order to invoke common interest privilege, the plaintiff needs to first establish that the communications between the plaintiff and other members of the NSL team who are not lawyers are protected by LPP. As mentioned above, it is difficult to see how the communications between the plaintiff and these persons would attract LPP in the first place. In this regard, the observations in paragraphs 20 to 27 above would also apply.
(2) Nor does the plaintiff suggest that any privileged documents were passed to the other members of the NSL team. In any event, no privilege could be attached to such pre-existing documents which were created before the arrest and search operation. In Citic Pacific Ltd v Secretary for Justice (No 2)[2015] 4 HKLRD 20, it was held that “raw material (viz original documents which come into existence during the course of the transaction or event, not created for the purpose of legal advice) is not protected by LPP” (§42) and “copies of such raw material are not protected by privilege even though such copies were forwarded to or made by a solicitor for litigious purposes” (§43).

C. JM CLAIMS

C1. Relevant legal principles on JM

35. The meaning of JM under section 82 of the IGCO is as follows:

“Meaning of journalisticmaterial
(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.”

36. In A v Commissioner of Police (supra), §26, Alex Lee J held that 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. Among others, in order to constitute JM, the speech/article prepared for the purpose of publication should be directed to informing public debate and on other matters of public interest.

C2. Analysis on JM Claims

37. First, as submitted by the Commissioner, it would appear from P Skel that the plaintiff has given up on making good his JM Claims. No explanation or argument has been proffered in all of the 2 paragraphs in P Skel dealing with JM (§§19 & 20) as to why the disputed JM materials constitute JM as alleged. Instead, on the basis that “there was suspected JM” (but without proving the same), the plaintiff then contended that “the burden was on the party seeking disclosure [of JM] … to engage a process with more procedural safeguards” (§§19 & 20 P Skel). This concerns the balancing exercise in ordering production or seizure of JM, not the determination as to whether certain materials constitute JM in the first place. I agree that such contention is irrelevant to the determination of the JM Claims under the Protocol. The issue here is, simply, whether those materials are JM or not. This is because it is common ground that the 2020 search warrant underlying the search and seizure of the two iPhones did not cover JM. Matters as to “alternative procedure” or “procedural safeguards” for the search and seizure of JM (if any) within the two iPhones are separate issues in the judicial review proceedings in HCAL 738/2022.

38. In any event, even under the “alternative procedure” with “procedural safeguards” under the IGCO, section 85(6) thereof provides that: “Subject to subsection (7), it shall be a term of any warrant issued under this section that a person who seizes journalistic material pursuant to the warrant shall seal the material upon seizure and shall hold the sealed material until otherwise authorized or required under section 87” (Emphasis added). In other words, only actual JM would be sealed for further disposal, not materials merely “known or suspected” to be JM.

39. The above analysis is sufficient to dispose of the plaintiff’s half-baked attempt to assert the JM Claims over the Seized Materials.

40. Second, insofar as the plaintiff seeks to rely on what he said about the disputed JM materials in Lai 2^nd, they are clearly deficient:

(1) As mentioned above, paragraph 11(b) of the Protocol requires the plaintiff to specify in his affidavit and submissions “the special basis or bases and the full factual context upon which the Disputed JM Materials were said to constitute JM”. However, in Lai 2^nd, the plaintiff has only supplied generic descriptions, citing the Commissioner’s summons dated 21 July 2022 (which raised separate issues) as an excuse. Apart from a one-line circular description under each category, there is a complete (if not deliberate) lack of particulars on the JM Claims. There is no information on, for example, the circumstances in which the relevant materials were created or the nature of the publication (whether they were local news, commentaries or commercial advertisements etc). This is particularly worrying since JM, by definition, does not command the same level of confidentiality or sensitivity as LPP. Hence, if the plaintiff were serious about his JM Claims, one would have expected that he should have been able to condescend upon proper particulars, having been given more than sufficient opportunity to do so.
(2) Whilst the plaintiff attempted to categorise the disputed JM materials, the categories are no more than self-serving assertions such as “communications for the purposes of publication and/or journalism within the Next Media Group”. The purported descriptions under each category are equally unhelpful. Many of them simply mirror the corresponding category, for example: “Discussions for the purpose of publications by Next Media” or even “self-explanatory”. I agree that such categorisation/descriptions are wholly deficient and provide no meaningful guidance on what the disputed JM materials might include.
(3) Paragraphs 9 to 14 of Chan Yuk Fung’s Affirmation do not assist the plaintiff. As the plaintiff himself pointed out at §24 Lai 2^nd, the contents of Chan’s Affirmation are “just a glimpse of the extent of [the plaintiff’s] interest in journalistic affairs”. At best, they only provide “the factual background to why there would be objective suspicion of [the plaintiff] being in possession of JM” and do not contain particulars or factual context of the disputed JM materials in question.
(4) As Alex Lee J held in A v Commissioner of Police (supra), §26, 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. One has to look at the purpose of the creation and acquisition of the material in question and the intention of the conveyor (if applicable). As the plaintiff himself admits, rather cryptically, “I use my mobile phones for a number of things.” (§25 Lai 2^nd). In the absence of proper evidence on the factual context for the particular materials subject to claim, it is impossible that the plaintiff’s JM Claims can be made out. It would indeed be unfair and impracticable to require the Commissioner to respond to the plaintiff’s empty and hollow JM claims in any meaningful manner.

41. Indeed, in §23 of Lai 2^nd, the plaintiff merely states that “the various categories … illustrate the likelihood of such content being covered by the broad definition of JM” (Emphasis added). And at §36 of P Reply Skel, the plaintiff frankly admitted that: “P has, at §23 of [Lai 2^nd], set out a table, categorised the suspected JM in 8 categories, and provided descriptions for each category” (Original emphasis). This is simply not good enough for the purpose of the Protocol.

42. In view of the above, I agree that the plaintiff has singularly failed to discharge his duty of making good his JM Claims, and the JM Claims fall to be dismissed in limine.

43. Given my view as set out above, it is strictly not necessary for the court to further rule on the Commissioner’s secondary argument, namely, that the disputed JM materials are caught by the “fraud exception”, in that they came into existence as part of the criminal conduct: Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701, §79. The Commissioner’s primary position is that no resort to this exception is necessary at all, given the state of the evidence before the court.

44. However, on the Commissioner’s secondary argument, I tend to agree with the plaintiff’s submission that in the present proceedings, it would be dangerous, and perhaps even unfair, for the court to rely on the charges laid by the prosecution, which are yet to be tried, to hold that the Commissioner could successfully establish the “fraud exception”.

D. CONCLUSION

45. For the reasons set out above, save for items 53, 59 to 60, and 66 to 68, I hold that the plaintiff is unable to make good his LPP Claims and JM Claims. Accordingly, the Remaining LPP Claims and the JM Claims are dismissed.

46. I direct that the Commissioner shall be at liberty to inspect, extract and/or otherwise access or use for investigation any part of the disputed materials under the LPP Claims and the JM Claims (except items 53, 59 to 60, and 66 to 68).

47. I order that the costs of the plaintiff’s claims of LPP and JM over the Seized Materials be paid by the plaintiff to the Commissioner, such costs are to be taxed if not agreed (with a Certificate for 3 Counsel).

48. The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

49. Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

	(Wilson Chan)
	Judge of the Court of First Instance
	High Court

Mr Albert N B Wong and Ms Samantha Lau, instructed by Messrs Robertsons, for the plaintiff

Mr Jenkin Suen, SC, leading Mr Michael Lok and Ms Ellen Pang, instructed by the Department of Justice, for the defendant

[1] Refers to the serial number in the first column from the left in the Schedule of Disputed LPP Claims.

[2] According to §20 Lai 2^nd, items 29, 31, 32, 42, 43, 50, 51, 52, 69 are duplicates of other items.

[3] See §10 Lai 2^nd.

[4] While it was said at §13 Lai 2^nd that the remaining communication started on 20 July 2020, item 70 covered the period 24 June 2020 to 25 July 2020.

[5] Affirmation of Lee Shu-Kuen filed on 9 September 2020, §§2, 8.

[6] LEE Wing-tat and LEE Cheuk-yan. See paragraph 11 of Hung 4^th.

[7] Based on information provided by the plaintiff, the NSL team includes (i) Paul Harris, SC (lawyer), (ii) HO Chuen-yan Albert (lawyer), (iii) LEE Wing-tat (non-lawyer) and (iv) LEE Cheuk-yan (non-lawyer). However, it is unclear whether there are other members in the NSL team.

[8] Lyell v Kennedy (No 3) [1884] 27 Ch D 1.

HCMP 1218/2020 and
HCAL 738/2022
(Heard together)

[2022] HKCFI 2688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

________________________

BETWEEN
	LAI CHEE-YING	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 738 OF 2022

________________________

BETWEEN
	LAI CHEE-YING	Applicant
and
	COMMISSIONER OF POLICE	Putative
		Respondent

________________________

Before:

Hon Wilson Chan J in Court

Date of Hearing:	22 August 2022
Date of Judgment:	30 August 2022

____________________

J U D G M E N T

____________________

A. INTRODUCTION AND BACKGROUND

1. This is the rolled-up hearing of Mr Lai Chee-Ying (the “plaintiff”)’s application for leave to apply for judicial review and the substantive application for judicial review (if leave to apply for judicial review were to be granted) (“JR Application”) in HCAL 738/2022; and the adjourned hearing of the Commissioner of Police (the “Commissioner”)’s summons in HCMP 1218/2020 dated 21 July 2022 (“21 July Summons”) for directions.

2. The background leading up to the JR Application has been summarised in the Commissioner’s Skeleton Submissions as follows:

(1)  On 10 August 2020, Police officers conducted a search at the plaintiff’s residence on the strength of a search warrant (writ no 7531/2020) issued on 6 August 2020 (the “2020 Warrant”). Various items were seized during the search (“Seized Materials”), including the plaintiff’s two iPhones namely (i) a white iPhone 11 Pro Max (Police reference: 498, the “White iPhone”) and (ii) a green iPhone 11 Pro Max (Police reference: 499, the “Green iPhone”). During the execution of the 2020 Warrant, steps were taken by the Police to avoid the search and seizure of journalistic materials (“JM”).^{^[1]}
(2)  As the 2020 Warrant did not authorise the search and seizure of JM and the plaintiff claims in HCMP 1218/2020 inter alia that the Seized Materials may contain JM, a protocol has been put in place by order of this court dated 19 November 2020 and as varied on 26 February 2021 and 4 August 2022 (“Protocol”) in HCMP 1218/2020 to determine claims made by the plaintiff in respect of Legal Professional Privilege (“LPP”) as well as JM.
(3)  On 8 July 2022, as part of the ongoing criminal investigation and based on the latest circumstances and evidence available before the Police, the Commissioner has applied for, and obtained, a search warrant from a (designated) Magistrate under section 2 of Schedule 1 of the Implementation Rules for Article 43 of the National Security Law (“NSL”) (“Implementation Rules”) (the “2022 Warrant”).
(4)  The 2022 Warrant specifically authorizes the search etc of any parts of the digital contents of the two iPhones and their copies, including such digital contents which are subject to JM claims in HCMP 1218/2020 (“Digital Contents”). In view of HCMP 1218/2020 and the Protocol, the 2022 Warrant expressly provides that the two iPhones and their copies may only be unsealed pursuant to this court’s further order/directions, since the Seized Materials and their Master and Working Copies produced under the Protocol had hitherto been sealed pursuant to this court’s orders.
(5)  Therefore, on 21 July 2022, the Commissioner filed the 21 July Summons for directions that the Digital Contents including those parts on which JM claims have been made but excluding those on which LPP is claimed be made available to the Police.
(6)  At the directions hearing on 5 August 2022, upon the plaintiff’s undertaking to commence judicial review proceedings to challenge the validity of the 2022 Warrant, the 21 July Summons was adjourned to be heard together with the plaintiff’s JR Application.

3. As can be gleaned from the Form 86, and as confirmed by the plaintiff’s skeleton submissions lodged on 15 August 2022 (“P Skel”) and at the hearing, the plaintiff puts forward one sole ground for challenging the validity of the 2022 Warrant, namely, that, as a matter of construction, the phrase “specified evidence” as defined in section 1 of Schedule 1 of the Implementation Rules somehow does not cover JM, so that the Magistrate simply did not have the power to order the search and seizure of JM.

4. Section 1 of Schedule 1 of the Implementation Rules provides, inter alia, that:

“specified evidence (指明證據) means anything that is or contains, or that is likely to be or contain, evidence of an offence endangering national security.”

5. Section 2(2) of Schedule 1 of the Implementation Rules in turn provides as follow:

“(2) A magistrate may issue a warrant authorizing a police officer with such assistants as may be necessary to enter and search any place if the magistrate is satisfied by information on oath that there is reasonable ground for suspecting that any specified evidence is in the place.” (Emphasis supplied)

6. The plaintiff submits that the legislature designed the protections in Part XII of the Interpretation and General Clauses Ordinance, Cap 1 (“IGCO”) to allow law enforcement bodies access to JM only on them first complying with strict procedures supervised by a judge, not a magistrate. These protections are absent from Schedule 1 of the Implementation Rules. Where the NSL or the Implementation Rules intend to derogate from existing protections, they say so in clear terms. The plaintiff goes on to submit that against this background, “specified evidence” defined in section 1 of Schedule 1 of the Implementation Rules does not include JM as defined in Part XII of the IGCO. The 2022 Warrant is unlawful in so far as it authorises the seizure of JM as “specified evidence”.

7. The Commissioner, on the other hand, submits that the plaintiff’s contention is a construction argument contrary to the express language of NSL 43 and Schedule 1 to the Implementation Rules. Accordingly, the Commissioner submits that the plaintiff’s ground of review is devoid of merits and that leave should be refused.

(1) First, the Commissioner submits that there is no basis for the plaintiff to contend that section 2 of Schedule 1 of the Implementation Rules should, notwithstanding the absence of any express provision to such effect, exclude JM in its entirety (by carving out all JM from “specified evidence” without any discretion for the Magistrate) so as to give way to Part XII of the IGCO. In contending that Schedule 1 of the Implementation Rules does not cover JM because no such balancing exercise as the IGCOregime is found therein, the plaintiff is labouring under serious misconceptions. Once such misconceptions are clarified, the fundamental premise of the plaintiff’s argument falls away, ie that somehow respect for press freedom equates the exclusion of JM from the scope of “specified evidence” under the Implementation Rules. Read in its proper context, the clear wording of the Implementation Rules accordingly does not permit the construction advanced by the plaintiff.
(2) Second, the Commissioner deals with the six points advanced under Section F of P Skel, none of which (whether singularly or cumulatively) support the construction put forth by the plaintiff.

8. At this juncture, it is also important to highlight and bear in mind what this JR Application is not about:

(1)  There is, rightly, no systemic challenge against the constitutionality of the Implementation Rules (and/or the sufficiency or inadequacy of the requirements thereunder).
(2)  There is no attempt by the plaintiff to seek, and the court has no room to adopt, any remedial interpretation. Indeed, it is not the plaintiff’s case that the Hong Kong courts have jurisdiction to authorize search and seizure of JM under Schedule 1 of the Implementation Rules but that the requirements of Part XII of the IGCO (or alternatively similar requirements) should be read into Schedule 1 – instead, on the plaintiff’s construction, the courts simply have no jurisdiction over JM under Schedule 1. The plaintiff confirms at paragraph 2 of the P Skel that the plaintiff “does not rely on s 83 of IGCO, nor does he argue that Part XII of IGCO needs to be “read into” Schedule 1 of IR”.
(3)  The challenge is not against the Commissioner’s decision to apply for the 2022 Warrant and/or the manner in which it was applied for. In any event, the Commissioner’s decision to apply for the 2022 Warrant is not amenable to judicial review as it does not by itself bring about substantive legal consequences: Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 at §31.

9. It is of course trite that leave to apply for judicial review will only be granted if it is demonstrated that the intended grounds of challenge are reasonably arguable with a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, §15.

B. THE PLAINTIFF’S CONSTRUCTION IS BOUND TO FAIL

B1. Fundamental misconceptions in the plaintiff’s construction

10. First, whilst the plaintiff says that he is not arguing that “Part XII of IGCO needs to be “read into” Schedule 1 of IR”, he is in fact going a step further, which is to say that Part XII of IGCO is theonly lawful regime to protect JM (as if the regime itself, as opposed to the right to freedom of the press and of speech that the regime seeks to protect, were somehow “entrenched” in, for example, the Basic Law). However, Part XII of IGCO cannot be taken as the only way in which procedural safeguards can be meaningfully imposed in relation to the search and seizure of JMs.

(1)  Such argument was considered but rejected by Alex Lee J in A v Commissioner of Police [2021] 3 HKLRD 300, §36. As further explained by Alex Lee J in §§39-44, JM as a relevant consideration in the exercise of its discretion could be duly taken into account by the court under Schedule 7 of the Implementation Rules. Such reasoning should apply mutatis mutandis to Schedule 1. It can be noted that the word “may” is contained in section 2(2) of Schedule 1, just like it is contained in section 3(2) of Schedule 7 of the Implementation Rules.
(2)  It needs to be borne in mind that the IGCOwas a response by the legislature in the form of a “complete, self-contained code” (So Wing Keung v Sing Tao Ltd [2005] 2 HKLRD 11, §37(1))which is only applicable (i) where the court is dealing with “a person on whom there is or may be conferred under a provision in any Ordinance, being a provision to which section 83 applies” (IGCO, section 84(1)), and (ii) “in the absence of an express provision to the contrary” (IGCO, section 83). Hence, as the plaintiff accepts (at paragraph 2 of P Skel), that the Implementation Rules is “not an ordinance”, it follows that the IGCO simply has no application.
(3)  In any event, unlike the applicants in A v Commissioner of Police (supra), it is not even the plaintiff’s case that the courts should read into Schedule 1 a comprehensive scheme similar to the one contained in Part XII (specifically section 85) of the IGCO - instead the plaintiff boldly asserts that the courts have no jurisdiction over JM under Schedule 1. The construction advocated by the plaintiff would result in deprivation of the court’s jurisdiction over JM under the NSL and the Implementation Rules.
(4)  I agree that these are plainly objectionable, absurd and anomalous consequences which militate strongly against the plaintiff’s construction.

11. Second, to take a step back, press freedom simply does not equate any blanket prohibition against the seizure, production or disclosure of JM.

(1) As held by Ma CJHC (as he then was) in So Wing Keung (ibid), §36(2), “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. …” (Emphasis supplied)
(2) In fact, Ma CJHC went on at §43 to emphasise that in carrying out the balancing exercise, JM cannot even be regarded as a “paramount consideration”.
“(1) First, the Judge said in para. 46 of his judgment that the scheme contained in Pt.XII of the IGCO had to be viewed ‘through the prism’ of art.27 of the Basic Law of the Hong Kong Special Administrative Region guaranteeing the freedom of the press. This is apt to confuse. If all that was meant was that Pt.XII deals with the permissible limits to the freedom of the press, then I would have no quarrel with this as a proposition. If, however, what was meant was that in approaching Pt. XII applications there should be a bias in favour of this basic freedom and to regard that as some sort of paramount consideration, I would disagree. … If there is any paramount consideration at all, it is the public interest which is mentioned in at least three provisions: s.84(3)(d), s.87(2) and the catch-all s.89(2) … The public interest requires the Court to consider all aspects of any given case, with no bias or predisposition towards any particular factor. Often, a balancing exercise between competing interests is involved.
(2) The balancing exercise that Pt.XII focuses on is the freedom of the press seen against the need effectively to investigate and deal with crime. In Apple Daily Ltd v Commissioner of the Independent Commission Against Corruption (No 2) [2000] 1 HKLRD 647, Chan CJHC said at p 674D-E:
‘The court in discharging this constitutional duty must balance two competing aspects of the public interest, namely, the interest in the detection of crimes and bringing criminals to justice on the one hand and the interest in the protection of the citizens’ rights and privacy on the other … ’” (Emphasis supplied)
(3) This is consistent with the common law position in England. In British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1174F-1175A, Lord Wilberforce said this:
“… Although, as I have said, the media, and journalists, have no immunity, it remains true that there may be an element of public interest in protecting the revelation of the source. … The court ought not to compel confidence bona fide given to be breached unless necessary in the interests of justice … There is a public interest in the free flow of information, the strength of which will vary from case to case. In some cases it may be very weak; in others it may be very strong. The court must take this into account. …” (Emphasis supplied)
(4) Thus, Alex Lee J was clearly right when his Lordship held at §43 of A v Commissioner of Police (supra) that JM is a relevant consideration in the exercise of the court’s discretion, but no more than that.
(5) This is particularly so given that “the law has not developed and crystallised the confidential relationship in which they stand to an informant into one of the classes of privilege known to the law” (Attorney General v Clough [1963] 1 QB 773, 792, citing McGuinness v AG of Victoria (1940) 63 CLR 73; see also Passmore on Privilege (4^th ed, 2019), §1-289).
(6) Thus, it has never been the law that, save where some form of balancing exercise is specifically prescribed in the same legislation, the default position is that any statutory power ordering disclosure or production etc must automatically be construed as excluding JM from its scope of application. That has never been, and cannot be, the law.

12. Third, it follows that the plaintiff’s attempted comparison between JM and LPP (or, for that matter, any established class of privilege) is hopelessly inapt.

(1) Whilst statutory safeguards for search and seizure of JM stem from the need to protect the closely connected right to freedom of the press and the freedom of expression (cf A v Commissioner of Police (supra), §26(1)), LPP, unlike JM, is “entrenched by Article 35 of the Basic Law” and “does not involve a balance of interests” ie “we should not engage in the exercise of assessing whether the public interest in having relevant information for the prosecuting authority should outweigh the public interest of protecting materials which are subject to LPP” (Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20, §38).
(2) Accordingly, unlike JM, where LPP is involved - in whatever factual or legal context - there can only be one answer^{^[2]} (as entrenched in our constitution) ie no disclosure or production may be ordered or allowed.

13. Fourth, that the NSL or the Implementation Rules operate separately and additionally to the IGCO regime is further reinforced by the text itself as well as the surrounding context.

(1)  By the clear wording of NSL 43, the NPCSC self-evidently intended to confer on the Police additional powers in handling cases concerning offences under the NSL. Indeed, this court accepted, at §59(5) of its decision dated 10 June 2021 in Next Digital Ltd v Commissioner of Police (No 2) [2021] 5 HKC 411 (“June 2021 Decision”), that “the Police is vested with power both under the NSL and the PFO in investigating offences against national security and is entitled to invoke both powers in their investigations”. Hence, “the investigating authority [is entitled] to choose whichever provision most conveniently suits its purpose, provided only that the conditions precedent prescribed by that [statute] for such an application are met” (Philip KH Wong, Kennedy YH Wong & Co v Commissioner of ICAC [2008] 3 HKLRD 565, §52), thereby recognising that different statutes, bearing different conditions precedent, may serve different purposes depending on the relevant circumstances.
(2)  Further, Schedule 6 of the Implementation Rules specifically refers to JM, which is expressly defined as having “the meaning given by section 82 of the [IGCO]”. This is significant for at least two reasons.
(a)  First, it confirms that the IGCO has no direct application to the Implementation Rules, for otherwise the drafters need not specifically import the definition from the IGCO.
(b)  Second, it means that the drafters, who clearly had in mind the IGCO regime, chose to introduce only the definition of JM but decided not to import the entire IGCO regime. The omission of the IGCO regime was therefore a deliberate decision.
(c)  Indeed, this is consistent with the “expression unius”principle, ie that “there was no reason for the drafter to mention some only of the possible items unless the intention was that they were to be the only ones dealt with, so that the rest are excluded” (Bennion, Bailey and Norbury on Statutory Interpretation (8^th ed, 2020) §23.12).
(d)  The Court of Appeal applied the said principle in Sze Hei Fa v Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong [2005] 1 HKLRD 58, §94, indicating that the principle “in modern language means ‘to express one thing is to exclude another’”. In that case, it was held at §§93-94 that that the authority is expressly compelled by other provisions of the Chinese Medicine Ordinance, Cap 549, to carry out a review reinforces the conclusion that no review mechanism exists under section 92 where there is no provision for review.
(e)  It is also entirely proper to take into account Schedule 6, for a “legislative instrument is to be read as a whole, so that an enactment within it is not treated as standing alone but is interpreted in its context as part of the instrument” (Bennion, §21.1) and that the drafters “may be assumed to have intended to create a rational and coherent legislative scheme” such that “where what is expressed in one place frequently throws light on the meaning intended elsewhere” (Bennion, §23.14).
(3)  Moreover, in the absence of any constitutional status enjoyed by the IGCO regime, there is - putting the plaintiff’s case to its highest - at most and at best a conflict between the IGCO regime and the framework under the Implementation Rules. In this regard, NSL 62 expressly provides that:
“This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.”
(4)  As mentioned above, NSL 43 confers additional powers on the Police in handling cases concerning offence endangering national security and authorises the Chief Executive, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make the Implementation Rules. The Implementation Rules are “a necessary part of the NSL and its implementation”: HKSAR v Leung Kam Wai[2021] HKCFI 3214, §9. Hence, in case of any inconsistencies between local laws (including IGCO) and the Implementation Rules (which are made pursuant to NSL 43), the latter should clearly prevail.

14. Fifth, it follows that, as a matter of statutory interpretation, and contrary to the plaintiff’s submission, “specified evidence” clearly cannot be construed to somehow exclude JM.

(1)  As mentioned above, the absolute exclusion of JM does not flow or follow from the protection of a free press as if night follows day. See above at paragraph 11.
(2)  “Specified evidence” is defined in section 1 of Schedule 1 of the Implementation Rules to mean “anything that is or contains, or that is likely to be or contain, evidence of an offence endangering national security” (emphasis added). According to the Shorter Oxford English Dictionary (2007 ed), “anything” means “a thing of any kind”. In Chinese, the wording used is “任何物件”. According to 現代漢語詞典, “任何” again denotes “不論什麼”.
(3)  It bears emphasis that “[i]n determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning which leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute”: Pinner v Everett [1969] 1 WLR 1266, 1273C (Lord Reid).
(4)  Thus, on a plain and ordinary reading, the word “anything” or “任何物件” covers all types of materials so long as they contain (or is likely to contain) evidence of an offence endangering national security. The definition is drafted in “wide and embracing terms” (cf Lai Chee Ying v Secretary for Security [2021] 4 HKLRD 695, §56 in the context of the phrase “deal with” as found in section 3 of Schedule 3 of the Implementation Rules).
(5)  Indeed, “any statutory provision must be understood in its context taken in its widest sense”: Town Planning Board v Society for the Protection of the Harbour Limited (2004) 7 HKCFAR 1, §28; see also Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 534, §66 and HKSAR v Ma Chun Man[2020] HKCFI 3132, §16 (in which the principles were applied in the construction of NSL 20 and 21). In the present context, the wide ambit of the natural and ordinary meaning of “specified evidence” is consistent with the intention of NSL 43 and the Implementation Rules which is to provide the law enforcement authorities with wider investigating measures as well as the legislative intention of the NSL ie to “effectively prevent, suppress and impose punishment for any act or activity endangering national security”: Lai Chee Ying v Secretary for Security (supra), §§42-43. It follows that there is no reason to read down “specified evidence” to exclude JM in a manner that is contrary to the plain meaning it is capable of bearing (cf Lai Chee Ying v Secretary for Security (supra), §§59-63). Such a restricted definition does not accord with the above stated legislative intention of NSL.
(6)  Accordingly, the plaintiff’s approach (of limiting the definition of “specified evidence”) would equate to asking this court “to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained” or, indeed, to “read in” section 83 of IGCO into NSL as if the latter is an “Ordinance”, which is simply impermissible: HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, §63. As held by the Court of Final Appeal, at §§62-63:
“62. Much of the argument presented to the Court has proceeded on the footing that remedial interpretation mandates an approach to statutory construction which differs from, and is more radical than, that permitted by accepted principles of common law statutory interpretation. Strong English authority supports this view (R v A(No 2) [2002] 1 AC 45 at pp 67G-68E, per Lord Steyn; Ghaidan v Godin-Mendoza [2004] 2 AC 557 at pp 570G-572C, per Lord Nicholls of Birkenhead; Sheldrake v DPP [2005] 1 AC 264 at pp 303G-304C, per Lord Bingham of Cornhill). It is, however, necessary to establish precisely what that difference is.
63.   The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise (Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p 154B-C; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at p 315 per Mason J (dissenting, but not on this point); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384). Nevertheless it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v A(No 2) [2002] 1 AC 45 at pp 67G-68H, per Lord Steyn). A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.” (Emphasis supplied)
(7)  In the circumstances, it is wrong for the plaintiff to argue that, in the absence of an express deeming provision (such as section 83 of IGCO), the definition of “specified evidence” should somehow be construed as excluding JM. On a proper interpretation, “specified evidence” is wide enough to cover anything that contains or is likely to contain evidence of an offence endangering national security, including JM. There is no need for any express wording referring to JM. To contend otherwise would necessitate a statutory deeming provision (section 83 of IGCO) which the plaintiff does not (and cannot) rely on.
(8)  In paragraph 60 of P Skel, the plaintiff submits that the constitutional and common law protection of the freedom of the press requires the court that issued the warrant to carry out a balancing exercise between the freedom of the press and the public interest of criminal investigation. In my view, such a balancing exercise indeed comes with the word “may” in section 2(2) of Schedule 1 of the Implementation Rules (see: A v Commissioner of Police (supra), §39). In that regard, JM is only a relevant consideration in the exercise of the court’s discretion which the court is entitled to take into account (see: A v Commissioner of Police (supra), §§43 & 44). However, in carrying out the balancing exercise, JM cannot be regarded as some sort of “paramount consideration”. Rather, the paramount consideration is the public interest, which includes the need effectively to investigate and deal with crime (see: So Wing Keung (supra), §43(1)&(2)). Although there is a public interest in the free flow of information, the strength of which will vary from case to case. In some cases it may be very weak; in others it may be very strong (see: British Steel Corporation v Granada Television Ltd (supra)).

15. Sixth, the plaintiff’s reliance on the principle of legality does not assist him.

(1)  It is important to bear in mind that in the first place, there is no right for JM to be excluded altogether from the subject of a search warrant. There is, at most, a right to have freedom of the press as a relevant consideration to be duly taken into account in the issuance of a search warrant, but as held above the IGCO regime is not the only lawful way to carry out such consideration.
(2)  Further, in any event:
(a)  The principle of legality refers to the presumption that “‘fundamental’ common law rights cannot be overridden by general words but only by express words or necessary implication”: Bennion, §27.1. However, whether the statutory provision “may impose restrictions on fundamental rights and freedom is a matter of proper construction. The authorities do not suggest as a general principle that general wording can never be so interpreted”, and the court can still give primacy to the statutory provision’s context and purpose: Leung Kwok Hung v Secretary for Justice (No 2) [2020] 2 HKLRD 771, §§346-351 (Poon CJHC, Lam VP, as he then was, and Au JA). The principle of legality therefore does not permit the court to “disregard an unambiguous expression of Parliament’s intention”: Ahmed v HM Treasury (No 2) [2010] 2 AC 534, §117 (Lord Phillips PSC).
(b)  Indeed, the principle of legality “is meant to guard against the risk that the full implications of general or ambiguous statutory language said to have abrogated or curtailed fundamental rights or freedoms went unnoticed by the legislature”: A v Commissioner of ICAC (2012) 15 HKCFAR 362, §29. However, the present case is not one of the scenarios caught by the rule. For example, as mentioned above, Schedule 6 of the Implementation Rules specifically refers to the definition of JM given by section 82 of the IGCO but not the rest of Part XII of IGCO. This means the drafters had in mind the IGCO regime, but chose not to incorporate the same. For argument’s sake, if there had been any abrogation of freedom of the press by the Implementation Rules, that was not “unnoticed by the legislature”.
(c)  As Lord Dyson MR and Elias LJ noted in R (Nicklinson) v Ministry of Justice [2015] AC 657, §65 (717C), the principle of legality has been adopted in a number of cases, and “it is to be noted that they are all detailed and specific rights”.
(d)  The comparison between NSL 42 (bail) and NSL 46 (jury trial), on the one hand, and section 2 of Schedule 1 of the Implementation Rules, on the other, is therefore inapt. NSL 42 and 46 operate as an exception to the local legislations or practices, while NSL 43 provides additional power to law enforcement authorities. In any event, the mere fact that IGCO has no application to section 2 of Schedule 1 does not mean that it is an “exception” to IGCO. Rather, Part XII of IGCO and section 2 of Schedule 1 are two independent and self-contained regimes (A v Commissioner of Police (supra), §43).

16. Properly understood, therefore, the plaintiff’s argument (ie that press freedom means that the IGCO regime is the only route by which law enforcement officers may obtain a search warrant covering JM, and hence Schedule 1 of the Implementation Rules somehow cannot cover JM) is completely untenable and falls to be rejected.

B2. The plaintiff’s contentions are of no merit

17. Furthermore, as submitted by the Commissioner, in so far as the plaintiff elaborates on his “ground of review” under Section G of P Skel, such contentions do not assist the plaintiff.

18. In Section G of P Skel, the plaintiff makes 6 points which culminate in the conclusion at paragraph 65 that “the Magistrate erred in authorising the [Commissioner]’s officers to seize JM under s 2 of Sch 1 of” the Implementation Rules:

(1)  That “the general words deployed in ss 1 and 2 show no intention to displace the guarantee of press freedom” (§57 P Skel);
(2)  That “the general words in ss 1 and 2 need to be contrasted to the language of NSL 42 (bail) and NSL 46 (jury trial)” which “make incontrovertible inroads on existing fundamental rights” (§58 P Skel);
(3)  That “even within Sch 1, there is an express derogation of a judicial norm” (§59 P Skel);
(4)  That “the intention of the drafters is made even more evident by the absence of an express mechanism requiring a magistrate to conduct any balancing exercise” (§60 P Skel) and that “the Magistrate cannot carry on any actual balancing exercise in the circumstances envisaged under s 2” (§61 P Skel);
(5)  That the term “specified evidence”, if “given such a wide construction as to encompass JM, by the same logic, it would authorise the search and seizure of legal professional privilege” (§§35-36, 62 P Skel); and
(6)  That the plaintiff’s construction “in no way diminishes the Commissioner’s power to access JM when investigating offences endangering national security” (§64 P Skel).

19. I agree the 6 points advanced are devoid of merit and do not advance the plaintiff’s case on the construction of “specified evidence”.

20. As to Points 1, 2 and 3 (see paragraph 18 above), they are essentially of the same point viz that clear words are required to displace press freedom which is protected under the Basic Law. However:

(1)  That the Basic Law protects the freedom of the press does not mean that JM cannot be disclosed or ordered for production save under the IGCO (see paragraph 14(8) above).
(2)  There is no basis to assert that press freedom means that JM cannot be disclosed or ordered for production unless (i) an application is made under Part XII of IGCO only and (ii) the very requirements of Part XII of IGCO (and nothing else) are complied with.
(3)  Press freedom itself has never translated into an absolute ban against the search or seizure of JM unless and until (i) an application is made under Part XII of IGCO and (ii) the IGCO requirements are fulfilled.
(4)  Indeed, even for the provision in any Ordinance which authorizes the issue of a search warrant, all that section 83 of the IGCO does is to provide a rebuttable presumption (ie a deeming provision), in the absence of an express provision to the contrary, that such Ordinance shall not be construed as authorising the search of JM. It does not purport to confer on the IGCO any exclusive or constitutional status. A fortiori (and in the absence of such deeming provision), no such presumption could apply to the NSL or the Implementation Rules which, not being Ordinances, confer additional powers.
(5)  Hence, there is simply no need for the NSL or the Implementation Rules to “refer to JM as evidence excepted from the protections of Part XII of IGCO” (paragraph 57.3 of P Skel). This is a red herring and really puts the cart before the horse. There is nothing to substantiate the contention that the IGCO regime indiscriminately applies “by default” in the first place. Hence, no express wording is required to exclude JM from something which was not applicable in the first place. In other words, the correct analysis is the other way round: that the drafters of the NSL could have but did not incorporate the IGCO regime in the Implementation Rules.

21. As to Point 4(see paragraph 18 above), “the absence of an express mechanism requiring a magistrate to conduct any balancing exercise” does not mean the drafters intended to exclude JM.

(1)  The basis of the plaintiff’s contention is that some “balancing exercise” identical or akin to the IGCO regime needs to feature in any legislation which prima facie covers JM, otherwise JM is automatically and by default excluded.
(2)  However, that Schedule 1 contains no express mechanism does not mean that a Magistrate would not conduct any balancing exercise, particularly where section 2(2) of Schedule 1 provides that a Magistrate “may” (not “must” or “shall”) issue a warrant, and hence it plainly involves an exercise of judicial discretion after balancing all relevant factors. As Alex Lee J held in A v Commissioner of Police (supra)§§40-43, although Schedule 7 of the Implementation Rules “makes no express reference to JM”, JM still enjoys a “special status” under the Implementation Rules, in the sense that it is a relevant consideration in the exercise of the court’s discretion (see further, paragraph 14(8) above).
(3)  Importantly, it bears emphasis that there is no basis to suggest that a “balancing exercise” identical or akin to the IGCO regime is mandatory to give effect to press freedom. Indeed, in his discussion on the relevance of JM in A v Commissioner of Police (supra), Alex Lee J made clear at §43 that “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”; hence his Lordship specifically rejected any attempt of reading the IGCO regime into the Implementation Rules.
(4)  Whilst the likely existence of JM must be brought to the Magistrate’s attention, there is no basis to suggest that the Magistrate would not (or should not) properly consider such factor in any balance exercise, or that the Magistrate would somehow fail to exercise his judicial discretion properly. In any case, once the factor is brought to the Magistrate’s attention and consideration, in the absence of any constitutional or statutory guidelines, it is not for the court to superimpose or “read in” any prescribed form of “balancing exercise” (which would be the effect of the plaintiff’s contention that in the absence of any such “balancing exercise”, no JM can be touched upon). Insofar as it is necessary, the following should be borne in mind:
(a)  Whilst “it is for the courts…to decide what is a relevant consideration…it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense…”: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 764G per Lord Keith;
(b)  Hence, “where a material consideration has been considered, it is up to the relevant authority to determine the weight to be attached to it”: Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, §97 per Ma CJ, citing with approval the following remarks by Lord Hoffmann in Tesco Stores, 780F-G:
“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.”
(5)  In the premises, the Magistrate is entitled to and capable of considering the relevance of potential implications on the freedom of expression and freedom of the press as a result of search and seizure of JM in an application made under section 2 of Schedule 1, even though there is no express mechanism akin to Part XII of IGCO (or the one in Schedule 6 of the Implementation Rules). Indeed, Schedule 7 of the Implementation Rules similarly contains no express mechanism akin to Part XII of IGCO (hence the applicants’ arguments in A v Commissioner of Police (supra) to read in IGCO requirements into Schedule 7).

22. For completeness, contrary to the plaintiff’s contention at paragraphs 61 and 66 of P Skel that the Magistrate “did not” carry out any balancing exercise, there is no evidence by the plaintiff that the Magistrate did not take into account considerations of the competing public interests underlying search and seizure of JM.

(1)  Applying A v Commissioner of Police (supra) §46, that which ought to be drawn to the Magistrate’s attention, ie that “it is likely that the materials which [the Commissioner] seeks to obtain…might include JM” was fairly and squarely brought to the Magistrate’s attention.
(2)  On the face of the 2022 Warrant, the Magistrate was clearly informed of and had taken into account the fact that (i) the Digital Contents may contain JM and (ii) the plaintiff’s JM claims in respect of the Digital Contents are subject to determination in HCMP 1218/2020. Having considered these matters, the Magistrate was satisfied that the Digital Contents should be made available for search etc.
(3)  The above is reflected in the wording of the 2022 Warrant which specifically authorised the search etc of any parts of the Digital Contents “that are: (i) subject to any claims of journalistic materials by the plaintiff in HCMP 1218/2020 (which are pending determination by the Court of First Instance in HCMP 1218/2020), or (ii) journalistic materials (whether as agreed by the parties in HCMP 1218/2020, or as determined by the Court of First Instance in HCMP 1218/2020)”.
(4)  Notwithstanding these, the plaintiff boldly asserts that because “on the face of the NSL Warrant, the Magistrate authorised police officers to search and seize digital content ‘regardless’ of whether it amounted to JM”, that constitutes “a blanket authorisation relieving the Magistrate of the burden to carry out a balancing exercise before the police can access the JM”. I agree that this is a bad argument. That the Magistrate, upon considering the evidence before him and after balancing all relevant factors, decided to authorise search and seizure even though (ie regardless of whether) the digital content might contain JM, does not mean that the Magistrate did not carry out any balancing exercise at all in reaching his conclusion.
(5)  Indeed, what the plaintiff alleges is a bare assertion contradicted by what is stated on the face of the 2022 Warrant. In this regard, it has always been held that what is stated on the face of a warrant can be legally significant in that it demonstrates, for example, that specific requirements have been considered and satisfied: see Y v The Commissioner of ICAC[2020] HKCFI 161, §§24-25, citing Apple Daily Ltd v Commissioner of ICAC (No 2) [2000] 1 HKLRD 647 and Philip KH Wong, Kennedy YH Wong & Co v Commissioner of ICAC (No 2) [2009] 5 HKLRD 379.
(6)  As this court held in its June 2021 Decision at §70(1):
“Rule 2(2) of Schedule 1 to the NSL Implementation Rules provides that a magistrate may issue a warrant ‘if the magistrate is satisfied by information on oath that there is reasonable ground for suspecting that any specified evidence is in the place.’ In considering the police officer’s application, the Chief Magistrate must have directed himself to the aforesaid requirement. It goes without saying that, by his very act of issuing the Warrant, he must have been satisfied by the information laid before him that the requirement under rule 2(2) was met.”
(7)  It follows that, as mentioned above, given that the Magistrate did consider the likely existence of JM, there can be no complaint that he failed to take into account relevant factors in issuing the 2022 Warrant (nor can the plaintiff suggest that the Magistrate did not carry out any balancing exercise). Indeed, what the plaintiff alleges is a bare assertion contradicted by what is stated on the face of the 2022 Warrant.
(8)  In any event, in so far as the plaintiff seeks to delve into what was placed before the Magistrate in support of the application for the 2022 Warrant, this is simply not permissible. This is because “affidavits or affirmations used to support applications for search warrants constitute one of the classes of documents to which public interest immunity attaches, so long as the investigation in aid of which the warrants were sought continues”: Apple Daily Ltd v The Commissioner of ICAC (No 2) (supra), 663C-D per Keith JA (with whom Chan CJHC, as he then was, and Nazareth V-P agreed). See also So Wing Keung (supra), §47, in which Ma CJHC summarised the position as follows:
“In Apple Daily Ltd…the Court of Appeal held that public interest immunity attached to the whole of the affidavit used to support an application for a search warrant under section 85 and they were therefore privileged from disclosure: see 659E-664C. This Court is bound by that decision on this aspect, forming as it does part of the ratio decidendi of the case. Mr Dykes cited to us various authorities to suggest that if public interest immunity attached at all, this could not be automatically applied to the whole document. It was necessary, he contended, to go through each part of the supporting affidavit to see whether public interest immunity attached. These submissions, interesting and important though they are, will have to await the decision of the Court of Final Appeal. I might perhaps add that even if Mr Dykes were right in his submissions, having read the affirmation in support of the section 85 application, I think it is abundantly clear that public interest immunity should attach to the whole of it in the present case.” (Emphasis supplied)
(9)  In P v Commissioner of ICAC (2007) 10 HKCFAR 293, §5, the Court of Final Appeal confirms that the affirmation used at the ex parte stage “is protected by public interest immunity”, approving So Wing Keung (supra), 59F-J (ie §47 as excerpted above). The court went on to hold at §53 that:
“As has been noted (see para 24), in applying for an ex parte order under s 14(1)(d), the ICAC has the responsibility of putting the matter fully and fairly before the court. But material non-disclosure in the sense in which it is used as a ground of discharge of interlocutory orders obtained ex parte in civil cases cannot be entertained as a ground for the discharge of an ex parte order authorizing a s 14(1)(d) notice as such a ground would be incompatible with the statutory scheme. The intent of the scheme is that the integrity and effectiveness of the investigation should not be affected. And the documents relating to the application are protected by the confidentiality provision in O 119 and public interest immunity. In these circumstances, in order not to jeopardize the investigation, questions as to what has or has not been disclosed at the ex parte stage and whether the matter allegedly not disclosed is material cannot be meaningfully tested and the ground of material non-disclosure cannot apply in this context. This ground should not have been entertained by the Judge in the present case. In any event, the ICAC maintained that its visit to the Mainland subsidiary in Zhongshan on 21 June 2005 was not material and did not have to be disclosed as the records obtained did not relate to the sums they were investigating.” (Emphasis supplied)
(10)  See also R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 999B-D, 1001A-B, 1011A-1012D (as cited with approval by the Court of Final Appeal in P v Commissioner of ICAC (ibid), §5). See also, recently, YvCommissioner of ICAC (supra), §20.
(11)  Accordingly, there is simply no basis to attack the Magistrate’s exercise of his discretion in issuing the 2022 Warrant (which is in any case outside the scope of the Form 86).

23. Similarly, there cannot be any plausible basis for suggesting that the Magistrate “cannot” or “could not” have conducted any such balancing exercise.

(1)  First, in so far as it is directed at this Magistrate’s exercise of his discretion on this application it is untenable for reasons explained above at paragraph 22.
(2)  Second, so far as it is suggested that somehow no (designated) Magistrate can plausibly conduct such a balancing exercise:
(a)  Such contention is without merit. It is well-established that whether to issue a search warrant is a discretionary power. See, for example, A v Commissioner of Police (supra). Hence, whilst Schedule 1 spells out the requirements that have to be satisfied on any application, they do not exhaust the considerations that can be taken into account by the Magistrate in considering whether, and how, to exercise the discretionary power in question. Nothing in Schedule 1 restricts or limits that exercise.
(b)  Furthermore, in the absence of any specific statutory provision, there is no basis to presume that a Magistrate is somehow not sufficiently qualified to carry out such an exercise (insofar as this is indeed suggested by the plaintiff). That it is the responsibility of CFI and District Judges to consider the question of JM under the IGCO is again part and parcel of that regime. It in no way suggests that any question concerning JM must necessarily go beyond the capability or jurisdiction of a Magistrate.
(3)  Third, the plaintiff contradicts himself because, whilst alleging that the Magistrate cannot carry out any such balancing exercise, the plaintiff is perfectly able to suggest, at paragraph 67 of P Skel, the several factors which the Magistrate should balance “[i]f authorised to carry out a balancing exercise”. Hence, even on the plaintiff’s case, the plaintiff must accept that, if authorised to carry out a balancing exercise, the Magistrate can and could(as opposed to “cannot” or “could not”) carry out a balancing exercise.
(4)  Indeed, at §46 of A v Commissioner of Police (supra), Alex Lee J provided the answer by stating 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”. That would be sufficient to enable the Magistrate to carry out the balancing exercise.

24. As to Point 5 (see paragraph 18 above), the plaintiff’s argument that “specified evidence” cannot not cover LPP does not avail him:

(1)  The comparison between LPP and JM is inapt for the reasons set out at paragraph 12 above.
(2)  As mentioned above, it is accepted that LPP is a well-established and constitutionally protected ground for refusing disclosure which is recognised by the Implementation Rules: see, for example, section 3(10)(a) of Schedule 7 of the Implementation Rules. The Commissioner does not seek to inspect or otherwise access Seized Materials which are protected by LPP, whether under the 2020 Warrant or the 2022 Warrant.
(3)  In any event, even on the wording of the Implementation Rules itself, LPP merely operates as an exception to the disclosure requirements under the Implementation Rules. It necessarily follows that LPP in fact prima facie falls within the definition of “specified evidence”.

25. As to Point 6(see paragraph 18 above), it is disingenuous for the plaintiff to argue that excluding JM from section 2 of Schedule 1 would not diminish the Police’s power to access JM when investigating offences endangering national security.

(1)  As mentioned above, the plaintiff’s challenge is one that goes to the court’s jurisdiction. If the plaintiff’s challenge is successful, this means the Hong Kong courts would have no jurisdiction to exercise any coercive power over any JM under Schedule 1 of the Implementation Rules.
(2)  Worse still, applying the plaintiff’s logic, whenever a local legislation provides for a different set of procedural safeguards for a particular right or measure, all provisions under NSL and the Implementation Rules related to that right or measure would be disapplied in the absence of an express provision to the contrary. This would no doubt adversely affect the legislative intention of NSL ie to “effectively prevent, suppress and impose punishment for any act or activity endangering national security”: Lai Chee Ying v Secretary for Security (supra), §§42-43.
(3)  It is not open to the plaintiff to argue that the Police could still obtain JM under the IGCO. The clear intention of NSL 43 is to confer additional powers on the police in investigating offences endangering national security (A v Commissioner of Police (supra), §43). There is no reason why the Police should be confined to the IGCO regime when section 2 of Schedule 1 is capable of covering JM, and the Police should be free to choose whichever provision that suits its purpose (Philip KH Wong v Commissioner of ICAC (No 2) (supra)).
(4)  Accordingly, contrary to the plaintiff’s argument, to accept the plaintiff’s construction would indeed fundamentally and drastically restrict the Commissioner’s powers under the NSL/Implementation Rules which clearly cannot be permissible.

B3. Conclusion as to the JR Application

26. In the premises, I accept the Commissioner’s submission that the intended judicial review by the plaintiff is bound to fail and leave should accordingly be refused.

C. THE 21 JULY SUMMONS AND ORDER OF THE COURT

27. For the reasons set out above, the grounds raised by the plaintiff are not reasonably arguable with a realistic prospect of success. Accordingly, I refuse the plaintiff’s application for leave to apply for judicial review in HCAL 738/2022.

28. As the court is with the Commissioner that leave should be refused, it follows that the 2022 Warrant remains valid and open for execution.

29. The directions sought in the 21 July Summons are simply to give effect to the 2022 Warrant by making available to the Police such Digital Contents including those parts on which JM claims have been made but excluding those on which LPP is claimed.

30. Accordingly, I make an order in terms of paragraph 1 of the 21 July Summons.

31. For the avoidance of doubt, I order that the Protocol in so far as it relates to JM claims be dispensed with.

32. I see no reason why costs should not follow the event. Accordingly, I order that the costs of the proceedings in HCAL 738/2022 and the costs of and occasioned by the 21 July Summons (including all costs reserved, if any) be paid by the plaintiff to the Commissioner, such costs are to be taxed if not agreed with a certificate for 3 counsel.

33. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

34. Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

	(Wilson Chan)
	Judge of the Court of First Instance
	High Court

Mr Philip J Dykes, SC, leading Mr Steven Kwan, Mr Albert N B Wong and Ms Samantha Lau, instructed by Messrs Robertsons, for the plaintiff/applicant

Mr Jenkin Suen, SC, leading Mr Michael Lok (for preparing written submissions only) and Ms Ellen Pang, instructed by the Department of Justice, for the defendant/putative respondent

[1] Paragraph 5 of the Affirmation of Hung Ngan filed on 12 August 2022.

[2] Subject of course to the application of the ‘fraud exception’ in which case, technically, LPP does not in fact apply or arise.

HCMP 1218/2020

[2022] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

________________________

	IN THE MATTER of the Search Warrant Nos 7531/2020 and 7655/2020 granted in favour of the Commissioner of Police against the Plaintiff herein under s 50(7) of the Police Force Ordinance (Cap 232) and the execution thereof on 10 August 2020 (the “Warrants”)
	and
	IN THE MATTER of the Inherent Jurisdiction of the Court

________________________

BETWEEN

	LAI CHEE-YING	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

Before: Hon Wilson Chan J in Chambers

Date of last written submissions: 22 March 2022

Date of Decision: 25 March 2022

________________________

D E C I S I O N

________________________

INTRODUCTION

1. There are two applications before the court:

(1) The plaintiff’s application to seek an extension of time of 42 days to serve the P’s Digital Schedule in relation to the Plaintiff’s Copy identified as 498 (ie in respect of White iPhone 11 Pro Max (TEPE B0190674) (the “White iPhone”)) received by the plaintiff on 19 January 2022 by way of Summons filed herein on 4 March 2022 (the “White iPhone Time Summons”); and
(2) The plaintiff’s application to seek an extension of time also of 42 days to serve the P’s Digital Schedule in relation to the Plaintiff’s Copy identified as 499 (ie in respect of Green iPhone 11 Pro Max (TEPE B0190676) (the “Green iPhone”)) received by the plaintiff on 11 February 2022 by way of Summons filed herein on 10 March 2022 (the “Green iPhone Time Summons”).

BACKGROUND

2. On 10 August 2020, the Police searched the plaintiff’s residential address and seized various materials (the “Materials Seized”) therein, including the plaintiff’s White iPhone and Green iPhone.

3. On 13 August 2020, since the Materials Seized may contain journalistic materials (“JM”) or be subject to legal professional privilege (“LPP”), the plaintiff commenced the present proceedings to seek directions for, inter alia, inspection and examination of the Materials Seized and determination of whether the Materials Seized are journalistic materials or subject to LPP.

4. This court made an Order dated 19 November 2020 as varied on 26 February 2021 (the “Protocol”) setting out the protocol for the examination and identification of the LPP and JM in the Materials Seized.

White iPhone

5. Pursuant to the Protocol, the original deadline for the plaintiff to serve the P’s Digital Schedule in relation to the White iPhone was 9 February 2022.

6. The parties agreed to extend the deadline to 9 March 2022 for the plaintiff to serve the P’s Digital Schedule in relation to the White iPhone and filed a Consent Summons on 21 February 2022 (the “Consent Summons”) accordingly. The court then made an order in terms of the Consent Summons on the same day.

7. On 4 March 2022, the plaintiff filed the White iPhone Time Summons, seeking a further 42-day time extension.

Green iPhone

8. The original deadline for the plaintiff to serve the P’s Digital Schedule in relation to the Green iPhone was 4 March 2022.

9. On 1 March 2022, rather than taking out an application for time extension, the plaintiff merely wrote to the defendant (the “Commissioner”) requesting further time. The extension sought was for 28 days, ie by 1 April 2022.

10. It was not until after the court’s unless order dated 8 March 2022 that the plaintiff took out the Green iPhone Time Summons on 10 March 2022, now seeking a much longer extension of 42 days.

GROUNDS FOR TIME EXTENSION

11. The plaintiff has put forward three main grounds in support of his time extension applications, which are common in respect of the applications regarding the White iPhone and the Green iPhone.

12. Enormous amount of data - The plaintiff submits that the White iPhone and the Green iPhone contain enormous amount of data. Further time is genuinely required to physically review the content therein and for the plaintiff’s solicitors to be able to provide proper legal advice to the plaintiff.

13. Difficulties in taking instructions - The plaintiff is currently remanded in Stanley Prison in relation to other criminal cases. The plaintiff submits that there are considerable difficulties for the plaintiff’s solicitors to take instructions from the plaintiff, as further time will be required to arrange legal visit to the plaintiff, especially in the midst of the recent outbreak of the COVID-19 pandemic in Hong Kong. The Correctional Services Department (“CSD”) has suspended all legal visits for the period from 7 March 2022 to 20 March 2022 in light of the recent epidemic development.

14. Interruptions to business operation - During February and March 2022, various staff members of the plaintiff’s solicitors were tested positive for COVID-19. As a result, the office of the plaintiff’s solicitors was closed on several occasions for disinfection and deep cleaning, thereby causing significant interruptions to the operation of the plaintiff’s solicitors.

15. The White iPhone Time Summons and the Green iPhone Time Summons are opposed by the Commissioner. The Commissioner submits that the three main grounds relied on, namely: (i) the volume of data; (ii) the plaintiff’s incarceration; and (iii) the public health situation are unmeritorious. Further, if an extension is to be granted, the court should impose an unless order.

DISCUSSION

16. I agree with the plaintiff’s submissions made in reply that there has been a change in circumstances since entering the Consent Summons in February 2022, namely: (i) the suspension of legal visits announced by the CSD on 4 March 2022; and (ii) the public health situation in Hong Kong has also rapidly deteriorated since 21 February 2022, thereby affecting the work efficiency of the plaintiff’s legal team.

17. Moreover, the recent announcement by the CSD on 18 March 2022 clearly stated that official visits would only be resumed on a limited basis from 24 March 2022 to 24 April 2022, and the visit arrangements may be subject to change according to the epidemic developments in correctional institutions.

18. In all the circumstances of this case, I would extend the time for the plaintiff to serve the P’s Digital Schedule both in respect of the White iPhone and the Green iPhone to 13 April 2022 (ie an extension of 35 days for the White iPhone from the original deadline of 9 March 2022, and an extension of 40 days for the Green iPhone from the original deadline of 4 March 2022).

19. I note that the new deadline of 13 April 2022 is 14 days more generous than the one proposed by the Commissioner, and is in fact more generous than the original time extension sought by the plaintiff in respect of the Green iPhone (see: paragraph 9 above).

20. As submitted by the Commissioner, the plaintiff has a demonstrable history and pattern of failure to meet deadlines to serve the plaintiff’s Schedules pursuant to the Protocol (see: the summary table at page C/65 of the Hearing Bundle). These delays ranged from 75 to 97 days. In the circumstances, an unless order is necessary to ensure the proper conduct of these proceedings and instill a necessary sense of discipline in the plaintiff’s compliance of court-imposed deadlines: Wong Wai Keung v Commissioner of Police[2021] HKCFI 3609, §5.

DISPOSITION

21. For the reasons set out above, I order as follows:

“1. Unless the plaintiff serves the P’s Digital Schedules in respect of the Plaintiff’s Copies identified as 499 (Green iPhone 11 Pro Max (TEPE B0190676)) and 498 (White iPhone 11 Pro Max (TEPE B0190674)) by 3:30 pm on 13 April 2022:
(1) the plaintiff shall be debarred from serving any P’s Digital Schedule in respect of the relevant Plaintiff’s Copy(ies), and his legal professional privilege and journalistic material claims in respect of materials covered by the said Plaintiff’s Copy(ies) shall be dismissed; and
(2) The defendant shall be at liberty to inspect, extract and/or otherwise access or use for investigation the relevant Working Copy(ies) of the said Plaintiff’s Copy(ies).
2. Notwithstanding paragraph 3 of the Annex to the protocol as ordered by the Honourable Mr Justice Wilson Chan dated 19 November 2020 and varied by the Order of the Honourable Mr Justice Wilson Chan dated 26 February 2021 (the “Protocol”), unless the plaintiff and/or the plaintiff’s Designated Representatives attends Ma On Shan Police Station for the purpose of compliance of paragraph 3(a)-(c) of the Annex to the Protocol, within 3 working days of the plaintiff’s service of the P’s Digital Schedules referred to in the preceding paragraph:
(1) The plaintiff shall be deemed to have waived his right to have his Designated Representatives be present; and
(2) The defendant shall be at liberty to conduct extraction (under paragraph 3 of the Annex to the Protocol) in respect of the relevant P’s Digital Schedule(s) referred to in the preceding paragraph, in the absence of the plaintiff and the plaintiff’s Designated Representatives.
3. Costs of and incidental to the Summonses be to the defendant, such costs are to be taxed if not agreed on a party-and-party basis.”

22. Paragraph 2 of the above order is to ensure that the Police will have an early opportunity to review and follow up on those parts of the materials on which the plaintiff in fact makes no LPP/JM claim.

	(Wilson Chan)
	Judge of the Court of First Instance
	High Court

Messrs Robertsons, for the plaintiff

Mr Alan Wong, SGC (Ag) of the Department of Justice, for the defendant

HCMP 1217/2020,
HCMP 1218/2020,
HCMP 1221/2020,
HCMP 1222/2020,
HCMP 1239/2020 and
HCMP 1240/2020

[2021] HKCFI 1677

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1217 OF 2020

________________________

BETWEEN
	NEXT DIGITAL LIMITED	1^st Plaintiff
	(壹傳媒有限公司)
	APPLE DAILY	2^nd Plaintiff
	CHARITABLE FOUNDATION
	(蘋果日報慈善基金)
	APPLE DAILY LTD	3^rd Plaintiff
	(蘋果日報有限公司)
	NEXT MEDIA MANAGEMENT	4^th Plaintiff
	SERVICES LIMITED
	(壹傳媒管理服務有限公司)
and
	COMMISSIONER OF POLICE	Defendant
________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

________________________
BETWEEN
	LAI CHEE YING	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant
________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1221 OF 2020

________________________
BETWEEN
	NG TAT KONG KITH	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant
________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

________________________
BETWEEN
	WONG WAI KEUNG	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant
________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1239 OF 2020

________________________
BETWEEN
	LAI KIN YANG TIMOTHY	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant
________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1240 OF 2020

________________________
BETWEEN
	LAI YIU YAN IAN	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

Before:

Hon Wilson Chan J in Chambers

Dates of Hearing:	24-27 May 2021
Date of Decision:	10 June 2021

________________________

D E C I S I O N

________________________

A. INTRODUCTION ANDOVERVIEW

1. These proceedings first came before this court on 19 November 2020 (“19 Nov Hearing”). At the 19 Nov Hearing, the following applications were adjourned for determination at the present occasion:

(1) The Plaintiffs’ summonses for the amendment of the respective Originating Summonses (“Amendment Summonses”); and
(2) The Plaintiffs’ summons in HCMP 1217/2020 (“HCMP 1217”) for interlocutory injunction (“1217 Injunction Summons”).

2. The present hearing only concerns the Plaintiffs in HCMP 1217, 1218 & 1239-1240, 1221 and 1222 of 2020 (“Subject HCMP”) (“Subject Plaintiffs”), as (i) the Plaintiff in HCMP 1219/2020 did not put forward any amendment application (and whose attendance was excused) and (ii)the Plaintiff in HCMP 1220/2020 has withdrawn his amendment application.

3. In this Decision, I shall first address the Amendment Summonses, before dealing with the 1217 Injunction Summons.

B. AMENDMENTSUMMONSES

B1. Overview and summary

4. The intended amendments can be divided into the following categories, namely:

(1)  Lawfulness Challenge (in HCMP 1217, 1218, 1239-1240/2020): amendments which introduce a challenge against the validity of the relevant Search Warrant(s) on a myriad of grounds (references below are to paragraph numbers in the latest proposed Amended Originating Summonses):
(a)  HCMP 1217: §1
(b)  HCMP 1218: §§1A-1K
(c)  HCMP 1239: §§1A-1C
(d)  HCMP 1240: §§1A-(1^st) 1E^{^[1]}
(2)  Return of the seized materials on grounds of irrelevance (all Subject Plaintiffs), in addition to the originally pleaded grounds based on legal professional privilege (“LPP”), journalistic materials (“JM”), and the scope of the Search Warrants. More specifically, there are two sub-categories:
(a)  Allegations of irrelevance of the seized materials to the offences which the Plaintiffs contend are not covered by the Search Warrant relying on the marginal note of the Search Warrant;
(i)  HCMP 1217: §1A(iv)
(ii)  HCMP 1221: §1A(d)
(iii)     HCMP 1222: §1A(v)
(b)  General allegations of irrelevance of the seized materials to the offences named in the Search Warrant;
(i)  HCMP 1217: §1A(ii)
(ii)  HCMP 1218: §1M(iv)
(iii)  HCMP 1221: §1A(d)
(iv)  HCMP 1222: §1A(iv)
(v)  HCMP 1239: §1D(ii)
(vi)  HCMP 1240: (2^nd) §1E(iii)^{^[2]}
(3)  A new claim of trespass, conversion and/or detinue (all Subject Plaintiffs), with new prayers for damages and interest;
(a)  HCMP 1217: 2^nd paragraph; §§1C & 1D
(b)  HCMP 1218: 2^nd paragraph; §§1O & 1P
(c)  HCMP 1221: 2^nd paragraph; §§1C & 1D
(d)  HCMP 1222: 2^nd paragraph; §§1C & 1D
(e)  HCMP 1239: 2^nd paragraph; §§1F & 1G
(f)  HCMP 1240: 2^nd paragraph; (2^nd) §1C & (2^nd) §1D^{^[3]}
(4)  A new prayer for interlocutory and/or final injunction(all Subject Plaintiffs), to restrain the defendant (the “Commissioner”) from accessing, reviewing and/or making any use of the seized materials which fall within the proposed categories for return of materials.
(a)  HCMP 1217: §1B
(b)  HCMP 1218: §1N
(c)  HCMP 1221: §1B
(d)  HCMP 1222: §1B
(e)  HCMP 1239: §1E
(f)  HCMP 1240: §1F

5. In summary, the Commissioner opposes the proposed amendments at paragraphs 4(1), (2) and (4) above, because:

(1)  The proposed Lawfulness Challengeis outside the jurisdiction of this court in the present Originating Summons proceedings. Further, it would be an abuse of process for the Plaintiffs in HCMP 1217/2020 (the “1217 Plaintiffs”) and the Plaintiffs in HCMP 1218, 1239 & 1240/2020 (the “Lai Family”) to attempt to introduce these public law challenges in the present proceedings circumventing the leave requirement of judicial review.
(2)  The proposed prayer for return of materials on grounds of irrelevance amounts to an invitation to this court to undertake premature determination of the relevance of investigatory materials in an ongoing criminal investigation, and should not be allowed.
(3)  The proposed prayer for injunction is inappropriate and unnecessary. Insofar as an interlocutory injunction is concerned, that is unworkable because it requires the court to conduct a screening process of seized materials as to what falls within the relevant return categories pending completion of the running of the Protocol (which is precisely for the purpose of the screening the materials). Insofar as a final injunction is concerned, that is unnecessary because upon the completion of the running of the Protocol and any of the materials is determined or agreed to fall within a relevant return category, the relevant materials would be returned to them.
(4)  For all the above proposed amendments, they are doomed to fail.
(5)  For the avoidance of doubt, whilst the Commissioner does not oppose the proposed amendments at paragraph 4(3) above, such proposed claim involves factual disputes. The Commissioner has reserved his right, depending on the state of evidence in future, to apply for conversion into a writ action where appropriate and/or necessary.

6. The court shall deal with the above in turn.

B2. LawfulnessChallenge

7. The Commissioner submits that there are a number of difficulties with the proposed introduction of the Lawfulness Challenge. In short, the relevant Plaintiffs have to satisfy the court that:

(1) This court has the jurisdictionto rule on the Lawfulness Challenge and the Lawfulness Challenge is not an abuse of process; and
(2) The purported unlawfulness grounds are, individually, not bound to fail.

8. Against the above, the Commissioner submits that the 1217 Plaintiffs and the Lai family should not be allowed to mount the Lawfulness Challenge for the following reasons:

(1)  First, as a matter of legal principle, this court simply has no jurisdiction in these proceedings to entertain a challenge as to the lawfulness of a search warrant, as this falls within the exclusive purview of the judicial review procedure;
(2)  Second, further or alternatively, as a matter of law and substance, it is an abuse of process for the relevant Plaintiffs to mount the Lawfulness Challenge in the present proceedings, given in particular (i) the significance of the question of lawfulness which is not merely incidental or collateral to the private law claims, and (ii) the clear need for the necessary safeguards to defendants under the judicial review procedure;
(3)  Third, as a matter of substance, the purported Unlawfulness Grounds are wholly devoid of merit.

B2(a). Does this court have jurisdiction to entertain the Lawfulness Challenge?

9. It is well-established that any challenge against the lawfulness of a search warrant is within the exclusive purview of judicial review. As illustrations:

(1)  Bell v The Chief Constable of Greater Manchester Police [2005] EWCA Civ 902: the claimant sought to challenge the validity of a search warrant in a private action, complaining of, inter alia, trespass as a result of an unlawful search (see §§25-26). At §35, Sir Mark Potter P (sitting as the President of the Civil Division of the Court of Appeal) held in unequivocal terms that:
“Finally, I consider that the judge was right in any event to take the view that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review and that, as the judge held, Mr Bell's failure to appeal against the striking out of his claim that the warrant had been maliciously applied for, put paid to his efforts to attack the validity of the warrant before the judge.” (emphasis added)
(2)  R (ex p Goode) v Nottingham Crown Court [2013] EWHC 1726: the claimant challenged the validity of two search warrants issued by the Nottingham Crown Court. The Divisional Court (consisting of Pitchford LJ and Burnett J, as the Lord Chief Justice of England and Wales then was) considered, obiter, the “Crown Court’s power to review the validity of a warrant” (§49). At §50, it was noted that “[C]hallenges to the validity of a warrant to search and seize property were, before the 2001 Act, made and continue to be made in the Administrative Court and not in the Crown Court”, and a question arose as to whether the effect of section 59 of the Criminal Justice and Police Act 2001 (“2001 Act”) “handed to the Crown Court the jurisdiction to adjudicate upon the lawfulness of the issue of a warrant”.
(3)  At §51, it was held by Pitchford LJ (with whom Burnett J agreed) that:
“The issue of a warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another. Stanley Burnton LJ expressed the view, obiter, in Dulai at paragraph 39 that the Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates court. With respect, I agree. It seems to me that the ground of challenge to seizure provided by section 59(3)(a) does not enable the applicant to challenge the validity of the warrant in the Crown Court. The challenge under section 59(3)(a) is not, in any event, limited to occasions when property has been seized in execution of a warrant. Section 19(1) of the 1984 Act gives limited power to a constable to seize certain property if he is ‘lawfully on any premises’. Section 18 enables a constable to search for evidence upon the premises of a person who has been arrested for an indictable offence. In my judgment, the term ‘there was no power to make the seizure’ describes either a seizure in excess of a statutory power of search or a seizure in excess of the power of search given by a warrant. It does not describe a seizure made under a warrant issued with judicial authority which might subsequently be quashed or declared unlawful by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court. Should the warrant subsequently be declared invalid, the Administrative Court may in the exercise of its discretionary powers order the return of the property seized, but when considering such an order it will no doubt have in mind that if property is retained as evidence in forthcoming criminal proceedings the Magistrates Court or the Crown Court can in appropriate cases use its discretion to exclude evidence improperly obtained; also, that the property would, if returned, immediately be the subject of a fresh application for a warrant or an order for production under paragraph 4 of schedule 1 (as to which see section 59(6) and (7) ).” (emphasis added)
(4)  Lees v Solihull Magistrates’ Court and Her Majesty’s Revenue & Customs [2013] EWHC 3779: the claimants sought judicial review of the grant of search warrants. In allowing the application, the Divisional Court (consisting of Treacy LJ and King J) rejected the 2^nd defendant (HMRC)’s submission as to “the availability of an alternative remedy”viz the “availability of an application to the Crown Court for the return of the seized property under section 59 of the [2001 Act]” (§54). In rejecting this submission, at §56, Treacy LJ (with whom King J agreed) applied Goode (supra) and held that:
“As to Section 59 of the 2001 Act, it is clear that the only forum for a challenge to the validity of a warrant is in judicial review proceedings. See R (Goode) v The Crown Court at Nottingham [2013] EWHC 1726 (Admin) at paragraphs 50-52. The legality of the warrant cannot be challenged in the Crown Court, and that court's powers do not extend to the quashing of a warrant or the granting of a declaration as to the unlawfulness of entry, search and seizure. In those circumstances I do not regard Section 59 as an available alternative remedy.”
(5)  R (ex p Chaudhary) v Bristol Crown Court [2015] 1 Cr App R 18: the claimant applied to a second judge at the Crown Court under section 59 of the 2001 Act to seek the return of items seized pursuant to search warrants granted by another judge of the same court. In affirming the decision of the second judge that he had no jurisdiction to grant the application, the Divisional Court rejected an argument (as summarised at §38) that “judicial review is not the only means of challenging seizures pursuant to a warrant that is alleged to be bad on its face…that a court in a private law action for trespass to land and goods is entitled to make its own determination concerning s 15(1) [of the Police and Criminal Evidence Act 1984 (“1984 Act”)]”.
(6)  Again, in unequivocal terms, Fulford LJ (with whom Nicol J agreed) at §61 applied, inter alia, Bell and Goode, in arriving at the clear conclusion that:
“In my view the jurisprudence on this issue is clear: the only route to challenge whether a warrant is lawful is by way of judicial review. In particular, in Goode at [51] Pitchford LJ, having highlighted that it is a judicial act to issue a warrant, disavowed the notion that a court of equal jurisdiction has the power to invalidate the judicial act of another and he expressly approved the obiter dicta observation by Stanley Burnton LJ in Dulai that the Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates’ court (“…in cases in which there is a challenge to a relevant warrant, the claimant must bring proceedings for judicial review in the Administrative Court to quash the warrant…” at [37]). In unequivocal terms, Pitchford LJ determined that a challenge to seizure under s 59(3)(a) “does not enable the applicant to challenge the validity of the warrant in the Crown Court”. This matches entirely the decision of Sir Mark Potter P in Bell that the proper avenue to challenge the validity of a warrant is by way of judicial review. For my part, I agree entirely with this approach, and whether or not some of these observations were, strictly speaking, obiter dicta, they undoubtedly reveal the correct approach–it is not open to a Crown Court judge on a s 59 application to decide that a warrant issued by another Crown Court judge was unlawful, whether the suggestion is that it was “bad on its face” or otherwise. In either situation, this would constitute a challenge to the validity of the warrant and (to borrow the words of Pitchford LJ) a court of equal jurisdiction does not enjoy the power to declare invalid the judicial act of another.” (emphasis added)

10. Applying the above authorities, it is patently clear that any challenge as to the lawfulness of a search warrant can only be brought by way of judicial review proceedings.

11. Finally, it can be seen that the (unsuccessful) suggestion in the above cases that an alternative remedy is available (other than judicial review in the English Administrative Court) is premised on section 59 of the 2001 Act (which provides specific legislative mechanisms for applying to an appropriate judicial authority). In the absence of similar provisions in Hong Kong, any challenge as to the lawfulness of the search warrants must a fortiori remain in the purview of judicial review.

12. Indeed, in DPP v T(DC) [2007] 1 WLR 209, Richards LJ and David Clarke J held that, in the context of an anti-social behaviour order against a defendant, which may be made by the county court, magistrates’ court or Crown Court, any issue as to the validity of the original order should be raised by way of an appeal against the order or a claim for judicial review, rather than as a defence to breach proceedings.

13. Accordingly, on the above analysis, this court simply has no jurisdiction to entertain the Lawfulness Challenge by way of these ordinary civil proceedings.

14. This is based on well-established principle that any challenge against the lawfulness of a search warrant falls within the exclusive purview of judicial review. This springs from the public nature of the remedy sought – a declaration of invalidity of the Search Warrants, which is by nature a public law matter.

15. The 1217 Plaintiffs rely on Keen Lloyd Holdings Ltdv Commissioner of Customs and Excise [2016] 2 HKLRD 1372 (CA) and Kv Commissioner of Police and another [2020] 1 HKLRD 606 (CFI) and K v Commissioner of Police[2021] HKCA 523 (CA) in support of their contention that the validity of a search warrant may be challenged otherwise than by judicial review. However, on closer analysis, I agree with the Commissioner that these cases do not assist them.

16. The 1217 Plaintiffs’ Skeleton relies on the comment of the Court of Appeal in Keen Lloyd at §42 that, following the completed execution of the warrants in question (as applied by the Customs and Excise Department (“C&E”)):

“…there was no prospect of reversing the process in terms of the decisions of C&E in applying for the warrants and executing the same. Practically, the only reliefs that the applicants could obtain if they were successful in their challenges were injunctions (to restrain further misuse of documents and to procure the return of the documents) and damages. Notwithstanding public law issues being involved, these reliefs are also available in an ordinary civil action, see Richard Stone, The Law of Entry, Search and Seizure, 5^th Edn, paragraphs 3.106 to 3.110. In view of the delay in the commencement of proceedings and given the dispute of facts involved, it was more appropriate to proceed by an ordinary civil action.” (emphasis added)

17. The above was referenced in the first instance decision of K v Commissioner of Policeat §48(3).

18. However, as submitted by the Commissioner, Keen Lloyd and K must be read in their proper context:

(1)  First, as the underlined words in the passage cited at paragraph 16 above demonstrate, the remarks on the appropriateness to proceed by an ordinary civil action were made in relation to applications for injunction and damages, as opposed to applying to challenge the lawfulness of the warrants.
(2)  Rather, in Keen Lloyd at §29, it is made clear that there were at least four challenges brought in respect of the warrants in question: (i) the decisions of C&E to applying for the warrants; (ii) the decision of a magistrate in issuing the warrants; (iii) the execution of the warrants by C&E; and (iv) the provision of information and copies to the Mainland Customs. An ordinary civil action to apply for injunctions and damages may not involve a challenge on the lawfulness of the warrant itself.
(3)  The court’s remarks at §45 (“an entry without consent (express or implied) and the seizure of materials will attract tortious liabilities in terms of trespass and conversion”) were similarly concerned with civil tortious claims following an unconsented entry and seizure, rather than a challenge against the lawfulness of the warrant itself.
(4)  Similarly, K (CFI) §48 does not advance the 1217 Plaintiffs’ case. There, the court was merely summarising the potential legal redress a person may have against the “legality of the search and seizure” (not “the legality of search warrants”), namely, the options of: (i) applying to set aside search warrants granted on an ex parte basis; (ii) applying for judicial review “against decisions of magistrates to issue search warrants”; and (iii) taking out a civil action “for injunction to restrain use of the documents seized and to procure their return or for damages”.

19. Hence, there is nothing in the authorities which supports the relevant Plaintiffs’ contention that the appropriate avenue for a public law challenge against the validity of a search warrant is by way of an ordinary civil action.

20. The above is made clear when one considers Richard Stone, The Law of Entry, Search and Seizure (5^th ed) at §§3.106-3.110 (as cited by the Court of Appeal in Keen Lloyd):

(1)  §3.106 opens with the very broad and general remark that “there is a wide range of remedies available to the person whose premises have been entered, or whose property has been seized or damaged unlawfully” (emphasis added).
(2)  Likewise, the conclusion at §3.108 is in similarly broad terms, “[T]here seems little doubt that, even under the narrow approach, a claimant who has a strong case to argue in relation to trespass, conversion, or even negligence, will not now be prevented from proceeding by way of a civil claim even though the lawfulness of the actions constituting the alleged tort is to some extent dependent on a decision (for example, to issue a warrant, or to authorize an inspection) which would be susceptible to judicial review” (emphasis added).
(3)  Furthermore, in support of the proposition at §3.108, the learned author cites three decisions, namely R (ex p Fitzpatrick) v Chief Constable of Warwickshire [1998^{^[4]}] 1 All ER 65; Webb v Chief Constable of Merseyside [2000] 1 All ER 209; and Costello v Chief Constable of Derbyshire [2001] 3 All ER 150. It is clear that none of these authorities assists the Plaintiffs.
(a)  Fitzpatrick was an application for judicial review:
(i)  At 80c-e, it is said that:
“Judicial review is not a fact finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure in breach of section 16(8) should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles. In an appropriate case the court in a private law action is able to grant interlocutory relief on a speedy basis on well recognised principles so that in all but the clearest cases of a breach of section 16(8) judicial review has only disadvantages and no advantages when compared with the private law remedy.”
(ii)  It is clear from the passage itself that it is dealing with a situation of unlawful search by reason of “excessive seizure” in breach of a valid and lawfulsearch warrant. That this is so is apparent from the wording of section 16(8) of the 1984 Act which is set out at 575D, namely “[A] search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued”.
(b)  Webb: the three plaintiffs in two actions brought proceedings for the return of money lawfully seized by the police on suspicion that it constituted the proceeds of drug trafficking. Two of the three plaintiffs were not convicted of drug trafficking offences and the third was convicted of possession but no drug trafficking inquiry was undertaken. The Chief Constable nevertheless sought to rely in the civil proceedings on evidence that the money did proceed from drug trafficking. It was held by the Court of Appeal (in the course of this civil action) at 217j that “in each of these cases the police lawfully seized the money which is claimed, but their statutory power to retain it is exhausted”(emphasis added).
(c)  Hence, this case simply has nothing to do with search warrants, let alone their lawfulness.
(d)  Costello: this is a very similar case as Webb. The action again concerned the right of the police to retain property seized pursuant to relevant statutory provisions. Again, no question of warrant arises.

21. As to K v Commissioner of Police (Court of Appeal):

(1)  First, any supposed endorsement of the 1217 Plaintiffs’ position must be viewed with utmost caution. This is so, in particular, given that, according to the leading judgment of Lam VP:
(a)  At §87: Counsel for the appellant “accepted…that it would have been possible for K to bring a judicial review on the present facts…”;
(b)  At §93, that the Court of Appeal was “not impressed” by the submission that the appellant “could not effectively bring an application to the magistrate to set aside the Warrants or alternatively bring an application for judicial review to challenge the issue of the Warrants on the ground of intrusion of her right to privacy” (emphasis added);
(c)  Thus, at §95, the court held that “it is clear that [the appellant] could have mounted legal challenge by way of application to set aside the Warrants or judicial review even without sight of the Warrants” (emphasis added).
(2)  In other words, in determining whether the appellant’s access to the courts has been impaired by reason of the fact that the subject search warrant had not been produced to her, the court’s main consideration was focused on whether she was prevented from applying to the magistrate to set aside the warrant or from bringing judicial review.
(3)  The present question was simply not engaged at all by the Court of Appeal. The obiter remarks of Poon CJHC (within 2-3 paragraphs of a judgment agreeing with Lam VP) cannot be relied upon as support for the 1217 Plaintiffs’ proposition which flies in the face of, and is contradicted by, the well-established principle that public law challenge concerning the lawfulness of search warrants lie in the exclusive realm of judicial review.
(4)  In any event, it must be remembered that K v Commissioner of Police concerned the narrow question of the production of search warrants, prior to any challenge of the validity or the execution of the search warrants was even launched. Thus, both the CA decision and the CFI decision did not and needed notdiscuss any question as to the proper forum for bringing challenges against the validity of search warrants in Hong Kong.

22. Accordingly, I agree that neither Keen Lloyd, K, the text of Richard Stone, nor the cases cited therein, support any suggestion that the Lawfulness Challenge can be brought before this court as part of these private law proceedings.

B2(b). Is the Lawfulness Challenge an abuse of process?

23. Further or alternatively, the Lawfulness Challenge is caught by the well-established “Exclusivity Principle”.

24. As a general rule, it would be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringes rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 of the Rules of the High Court (“RHC”) for the protection of such authorities: O’Reilly v Mackman [1983] 2 AC 237 at 285 per Lord Diplock.

25. According to Lord Diplock in the same decision:

(1)  A civil action can be struck out if it contravenes this general rule and is an abuse of process of the court (per Lord Diplock at page 285);
(2)  The reason for the general rule of procedural exclusivity is to give effect to the protection of public interest inherent in the judicial review procedure. The uniqueness of the judicial review procedure lies in the procedural safeguards afforded to the public authorities. The procedural safeguards identified expressly by Lord Diplock include:
(a)  The leave requirement for judicial review against groundless or unmeritorious claims (p 280);
(b)  The requirement for the applicant to come to court with full and candid disclosure of material facts (p 280);
(c)  A time limit of 3 months unless delay can be justified (p 281); and
(d)  The exclusion of automatic discovery (p 281).
(3)  Procedural exclusivity is only a general rule. There are exceptions to this rule: “for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons” (p 285F per Lord Diplock) (emphasis supplied).

26. The seminal decision of O’Reilly is cited in the Hong Kong Civil Procedure 2021 at Practice Note 53/14/31 (p 1151) for the proposition that there exists a “[general rule] requiring persons seeking to establish a public law wrong to proceed by way of judicial review and not otherwise.” O’Reilly has also been widely and generally applied in Hong Kong.

27. The rule in O’Reilly was recognised by the Hong Kong courts since at least the 1990s. In Lau Wong Fat v Attorney General, both the Court of First Instance (Unrep, HCA 6016/1994, 18 November 1996) and the Court of Appeal ([1997] HKLRD 533) acknowledged that as a general rule it is contrary to public policy and is an abuse of the process for the court to permit a person who seeks to establish the decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action.

28. In Wong Fuk Tim v HKSAR Government and Others (Unrep, HCA 1008/2011, 12 October 2011), Lam J (as Lam VP then was) had this to say at §§6-11:

“6. The matters relied upon by the Plaintiff in his Statement of Claim are patently public law challenges. Yet, instead of proceeding by way of judicial review, the Plaintiff issued the writ in this action and in so doing he circumvented the usual procedure for advancing public law challenges in terms of seeking leave for judicial review under Section 27K(3) of the High Court Ordinance and Order 53 Rule 3 of the Rules of the High Court.
7. This is not a mere arid procedural point. On a leave application, the court will consider whether a challenge is reasonably arguable and whether the challenge has been mounted promptly. If a challenge is advanced later than three months from the date of the decision, requirement was explained by the Court of Final Appeal in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319. Chief Justice Li said at para 14,
‘Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges. Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.’
8. To the same effect is the judgment of Ma CJHC (as he then was) in Leung v Secretary for Justice [2006] 4 HKLRD 211 at para 21,
‘The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.’
9. Though there are exceptions as recognized by His Lordship at para 22, the general rule was stated as follows at para 21,
‘As a general rule, where the subject matter of an action involves public law, judicial review proceedings should be the norm.’
10. The same rule was stated by Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 at p 285D,
‘…it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means evade the provisions of Order 53 for the protection of such authorities.’
11. The present case does not fall within any established category of exceptions to this general rule (and the Plaintiff did not argue that it does).”

29. I agree with the Commissioner’s submission that the rule applies with full force to render the Lawfulness Challenge in the present case an abuse of process.

30. First, the starting point is the well-established position that a warrant issued by a magistrate is valid until and unless it is quashed. See: McGrath v Chief Constable of the Royal Ulster Constabulary [2001] 3 WLR 312 at §§16-17 per Lord Clyde (with whom Lords Steyn, Browne-Wilkinson, Cooke of Thorndon and Hutton agreed):

“16. Of more direct relevance is one of the other cases to which we were referred, Hoye v Bush (1840) 1 Man & G 775. It was held in that case that an arrest was wrongful where the constable had applied for a warrant to arrest Richard Hoye, the warrant had been mistakenly issued in the name of John Hoye and the constable had arrested Richard Hoye. Thus a police officer cannot under a warrant arrest someone who is not named in it even although he knows the person intended to be covered by it. Tindal CJ observed, at 786: ‘It would be dangerous if a person whose office is wholly ministerial, were allowed to sit in judgment, and say who is the unnamed person intended by the warrant which he is required to execute.’ One principle which can be found in Hoye is that the person executing a warrant should follow and be entitled to rely on the face of the warrant. He may not act outside the terms of the warrant. That was what happened in Hoye. But he should not be held to have acted unlawfully if he carries out the instruction which appears from the face of the warrant. It is not for him to question that instruction if it is clear.
17. Warrants issued by a court of law require to be treated with the same respect as must be accorded to any order of the court. The general rule was stated by Romer LJ in Hadkinson v Hadkinson [1952] P 285, 288:
‘It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. ‘A person who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it...It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void–whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed’ (per Lord Cottenham LC in Chuck v Cremer (1846) Coop temp Cott 205, 338).’
That passage was followed in R v Oldham Justices, Ex p Cawley [1997] QB 1, where it was held that a prison governor did not require to question the order contained in a warrant of committal.” (emphasis added)

31. The above was applied in the specific context of search warrants in Goode (supra) at §50 and Chaudhary (supra) at §51.

32. Second, section 60 of the Police Force Ordinance, Cap 232 (“PFO”) provides that:

“In case any action is brought against any police officer for any act done in obedience to the warrant of any magistrate, such officer shall not be responsible for any irregularity in the issuing of the warrant or for any want of jurisdiction in the magistrate issuing the same and he may plead the general issue and give such warrant in evidence; and on production of the warrant and proof that the signature thereto is the handwriting of a person reputed to be a magistrate and that the act was done in obedience to the warrant, the jury or court shall find a verdict or give judgment for the defendant who shall also recover double his costs of suit.”

33. In Mouncher v Chief Constable of South Wales [2016] EWHC 1367 (QB), it was held by Wyn Williams J (in respect of the similar section 6 of the Constables Protection Act 1750 (“1750 Act”)) at §§452-453 that:

“452. …The search warrants in question were issued by a magistrate. Mr Johnson accepts that such a decision is susceptible to a challenge by way of judicial review. He submits, however, that no civil action can lie against the defendant in respect of the searches because the warrants issued by the magistrate in respect of the homes of Mrs Coliandris and Mr Morgan have never been quashed. The quashing of the warrant, in the submission of Mr Johnson QC is a necessary pre-requisite to the bringing of a civil actionby virtue of Section 6 Constables’ Protection Act 1750. That Section is in arcane language and I do not propose to set it out in this judgment.
453. In the absence of any oral or written submissions to suggest that the analysis of Mr Johnson QC is incorrect I am disposed to accept it. Accordingly the Human Rights claim made by Mrs Coliandris in respect of the search of her home must fail.…” (emphasis added)

34. Accordingly, the fundamental basis of the Lawfulness Challenge is the validity, lawfulness and legality of the Search Warrants. This can hardly be said to be merely collateral or incidental to the private claims for damages based on trespass, detinue and conversion (applying, for example, Lau Shiu Ming v The Correctional Services Department (Unrep, HCMP 320/2000, 18 October 2000, at p 6).

35. Indeed, as mentioned above at paragraph 9(5), the English Divisional Court in Chaudhary (supra) specifically rejected a submission “that a court in a private law action for trespass to land and goods is entitled to make its own determination” on the lawfulness of the search warrant.

36. Third, the procedural safeguardsof the judicial review mechanism must be reiterated, both generally and in the present specific context.

37. Generally speaking, it is important to bear in mind the general safeguards which the Commissioner (and an authority in a comparable position in future cases) would be deprived of, if a private law action can henceforth be used as an alternative avenue to challenge the lawfulness of a search warrant:

(1)  In Leung v Secretary for Justice [2006] 4 HKLRD 211, Ma CJHC (as he then was) at 222H discussed the public interest underlying the judicial review procedure safeguards:
“21. …The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.” (emphasis added)
(2)  Similarly, in the context of discussing the leave requirement in the judicial review procedure, Li CJ made the observation in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at 326that:
“14. …[The leave requirement’s] purpose is to prevent public authorities from being unduly vexed with unarguable challenges. Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.” (emphasis added)
(3)  Therefore, the overalleffect of the procedural safeguards reflects the delicate constitutional balance and should be seen as giving effect to the public interest in good administration. This was recognised by Lord Diplock in O’Reilly(supra) at 280:
“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.” (emphasis added)

38. In the present specific case, particularly in the context of an on-going criminal investigation into, inter alia, a suspected serious crime under The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the “NSL”), it is a fortiori that safeguards such as the leave procedure remain in place. The leave requirement thus serves a particularly important filtering purpose and prevents investigating authorities from being vexed with unmeritorious legal challenges that may result in undue delay in investigation and affect and compromise its effectiveness.

39. In P v The Commissioner of the ICAC (2007) 10 HKCFAR 293 at §§45-48, where the CFA considered the permissible scope of challenge against an ex parte production order made under section 14(1)(d) of the Prevention of Bribery Ordinance, Cap 201 (“POBO”), the court was acutely aware of the need not to compromise the integrity and effectiveness of investigation in crimes such as corruption, and emphasised (at §48) that “it is important for the court to deal with any application on this ground in a way which does not affect the integrity and effectiveness of the investigation, bearing in mind that undue delay in investigation may well affect its effectiveness”.

40. The same canplainly be said (and with even greater force) in relation to the investigation of cases concerning offences endangering national security:

(1) In HKSAR v Tong Ying Kit[2020] HKCFI 2196, Alex Lee J recognised at §15 that offences endangering national security involve “conducts with strike at the foundation of the “One Country, Two Systems” upon which the very existence and stability of Hong Kong as a Special Administrative Region depends” and that “grave harm that can be done if the national security is put at peril” (emphasis added); and
(2) According to NSL Article 42(1), which spells out the positive duties of the law enforcement and judicial authorities in handling cases concerning offence endangering national security expeditiously so as to ensure the effective prevention, suppression and punishment of acts and activities endangering national security:
“香港特別行政區執法、司法機關在適用香港特別行政區現行法律有關羈押、審理期限等方面的規定時，應當確保危害國家安全犯罪案件公正、及時辦理，有效防範、制止和懲治危害國家安全犯罪。” (emphasis added)
The duties of the law enforcement and judicial authorities to effectively prevent, suppress and punish acts and activities endangering national security and thereby safeguarding national security effectively are also emphasised in NSL Articles 3(3) and 8.

41. In the premises, I accept that the Exclusivity Principle must apply with full force in the present case, such that the Lawfulness Challenge is ruled to be an abuse of process and should not be allowed to run.

42. The 1217 Plaintiffs attempt to answer the Exclusivity Principle by contending that:

(1) It is “highly questionable” whether the “Exclusivity Principle” remains good law;
(2) The “Exclusivity Principle” has “no application” given “(a) the limited public law element, (b) the collateral nature of the Unlawfulness Challenge and (c) the established legal position that such a challenge to search warrants can take the form of an ordinary civil action”.

43. In relation to their first argument, the reliance on R v Employment Secretary, Ex p EOC [1995] 1 AC 1 at 34C does not assist, where Lord Lowry merely aired his sentiment that “I have never been entirely happy with the wide procedural restriction for which O’Reilly v Mackman…is an authority, and I hope that that case will one day be the subject of your Lordships’ further consideration” (emphasis added). Hence, so far as such a well-established principle is to be capable of being revisited and disturbed at all, this is clearly an exercise to be undertaken at the highest level. The current position in Hong Kong is as summarised above.

44. In relation to their second argument:

(1)  First, a lawfulness challenge against a search warrant is squarely and clearly a public law matter. The self-serving assertion of “limited public law element” is entirely baseless.
(2)  Second, the collateral challenge exception to the Exclusivity Principle has no application on the facts of the present case. The Plaintiffs do not need to have the search warrant declared unlawful to seek return of materials or to claim for damages against the Government. Rather than being a collateral challenge, the proposed Unlawfulness Challenge is a separate and standalone challenge to the other proposed reliefs sought in the Originating Summonses.
(3)  Third, the alleged “established legal position that such a challenge to search warrants can take the form of an ordinary civil action”has been addressed above.

45. It is difficult to understand the assertion that “none of the public law protective mechanism can be said to have been evaded”. By commencing the present action by originating summons and not by way of a judiciary review, the 1217 Plaintiffs effectively bypassed the need to obtain leave. This includes the requirement for promptitude (Order 53, rule 4(1) of the RHC), and the need to satisfy the court upon a full and frank disclosure that the proposed grounds for review are reasonably arguable (which is a higher hurdle to surpass than that application for leave to amend an originating summons). Had the proceedings been properly brought by way of judicial review (which was never the case), leave would in all probabilities have been refused as the application is short on merits (to be further dealt with below).

46. Further and importantly, they are now grossly out of time if they are to apply for leave to bring judicial review proceedings at this instant (which is likely to be fatal). Faced with such fundamental flaw, it is now belatedly sought to “convert” these HCMP proceedings into a leave application. In this regard, the date of the original Originating Summons is a red-herring, because the original Originating Summons did not raise any Unlawfulness Challenge. The suggestion to “convert” these proceedings into a leave application was only first raised in the 1217 Plaintiffs’ Skeleton dated 12 May 2021. This constitutes serious undue delay.

47. Fundamentally, the suggestion in the 1217 Plaintiffs’ Skeleton is not an option open to them to circumvent the procedure to apply for leave to bring judicial review out of time (where well-established principles apply: see: eg AW v Director of Immigration [2016] 2 HKC 393 at §27(3)). None of the authorities cited (whether in Hong Kong or elsewhere) suggest that the court can “direct proceedings begun by originating summons…be continued as if it was by way of an application for leave for judicial review”. That no authority has been found for such a bold proposition is unsurprising:

(1)  First, the requirements of obtaining leave to commence judicial review proceedings are not mere formalities. The failure to comply with such requirements are clearly not mere irregularities.
(2)  The safeguards of the important filtering function of the leave requirement are of significance (see paragraphs 37 to 40 above).
(3)  Finally, suffice it to repeat what was said by Andrew Cheung J (as the Chief Justice then was) in Right to Inherent Dignity Movement Association vHKSAR Government and Others (unrep, HCAL 104/2008, 31 October 2008) at §57:
“In my view, the challenge against the rule in O’Reilly v Mackman is a highly relevant argument to the challenge against the Order 53, rule 3 leave requirement for launching judicial review proceedings. If public law proceedings could be commenced in the High Court as an ordinary action by writ or originating summons, rather than by way of an application for judicial review, the justification for requiring leave to be obtained before an application for judicial review could be mounted would arguably disappear, because the commencement of an ordinary action does not require the obtaining of leave.” (emphasis added)

48. It is also wrong to suggest that there is “no real prejudice to D”. To permit a recipient of a search warrant to mount a public law challenge of the lawfulness of the warrant almost a year after the issuance and execution of the same would wreak havoc to law enforcement in Hong Kong. If a proper application for leave for judicial review out of time is to be taken out now, the Commissioner would be entitled to oppose leave and adduce evidence and make submissions on the detriments to good administration. Of course, no such application is before this court.

49. The Lai Family advances the same arguments as those raised by the 1217 Plaintiffs, which have already been addressed above:

(1)  In relying on English cases on search warrants, the Commissioner allegedly failed to have regard to “the comprehensively distinct statutory regimes regarding powers of arrest, entry, search, and seizure, and the judicial structure of England and Wales”;
(2)  “The flexibility in transferring actions between judicial procedures is now common”;
(3)  As with the 1217 Plaintiffs, the Lai Family seeks to rely on the Court of Appeal’s remarks in Keen Lloyd at §§42-43.

50. In addition, the Lai Family also argues that it is more appropriate to resolve the present dispute by civil proceedings in light of the “risk of factual disputes” and “the potential need for a range of remedies”.

51. However, I agree with the Commissioner that the existence of factual dispute is not a reason to depart from the Exclusivity Principle. In Trim v North Dorset District Council [2011] 1 WLR 1901, Carnwath LJ (as he then was, with whom Laws LJ and Patten LJ agreed) said at §§24-25 that:

“24. Nor do I find in the textbooks support for the suggestion that the existence of factual disputes is a reason for an exception to the exclusivity principle. The need to resolve such disputes does not often arise, because of the nature of most judicial review proceedings. But, when it does arise, it does not create any particular conceptual or procedural problems. The permission stage gives the court full control of the proceedings. It may give any necessary directions for the attendance of witnesses and cross-examination (CPR r 8.6(2)(3)), not disapplied by CPR r 54.16…
25. It is true that in the Dilieto case [2000] QB 381, 394 e-g Sullivan J referred to the possible shortcomings of judicial review proceedings to resolve factual disputes. However, that was in a different context, in which he was comparing that procedure with the alternative of the magistrates' court. If, which I doubt, he was intending to imply that judicial review cannot effectively cater for such disputes where they arise, I would respectfully disagree.” (emphasis added)

52. The issuance of warrant is clearly a public law act. There is strong public interest in its validity, if in issue, being challenged promptly and properly.

53. For the reasons stated in Section B2(a) above, none of the grounds advanced by the relevant Plaintiffs answers the question of jurisdiction. Hence, in the absence of jurisdiction, this court clearly cannot entertain the intended amendments.

54. Further or alternatively, for the reasons stated in Section B2(b) above, the Lawfulness Challenge, being an attempt to circumvent the “Exclusivity Principle”, amounts to an abuse of process. Given the importance of judicial review safeguards, coupled with the pertinence of not compromising the integrity and effectiveness of criminal investigations (see: P v Commissioner of ICAC), especially in the NSL context, the “Exclusivity Principle” must apply with full force to prevent abuse.

B2(c). Is the Lawfulness Challenge bound to fail?

55. As the court agrees with the Commissioner’s position on “lack of jurisdiction” and the Lawfulness Challenge being an “abuse of process”, it is not strictly necessary to consider the merits of the proposed amendments. This is discussed as a matter of completeness.

56. In summary, the Commissioner submits that the 1217 Plaintiffs and the Lai Family are attempting to introduce a scattergun attack on the validity of the warrants. The Commissioner submits that the proposed grounds of challenge are in fact trivial, pedantic and clearly untenable on the facts or as a matter of law. They are doomed to fail and should not be permitted to proceed.

57. Unlawfulness Grounds 1 to 7 were put forward at the 19 Nov Hearing. Since then, the 1217 Plaintiffs have sought to introduce two further grounds:

(1) That the Warrant was applied for on information laid by a Senior Inspector of the Commercial Crime Bureau (“CCB”), rather than an officer in the National Security Department (“NSD”) (“Additional Unlawfulness Ground 1”);
(2) That the Warrant failed to show that the Chief Magistrate (as opposed to the relevant Inspector) was satisfied that there is reasonable ground for suspecting that any specified evidence is in the place (“Additional Unlawfulness Ground 2”).

58. The grounds are grouped by the Commissioner into the following categories for the purpose of analysis:

(1)  Marginal Note Challenges – There are two varieties:
(a)  Unlawfulness Ground 1: As the marginal note of the warrant cites PFO section 50(7), the coverage of the warrant of the Collusion Offence (an NSL offence) is said to be unlawful;
(i)  HCMP 1218 §1A (First Warrant)
(ii)  HCMP 1240 §1A (1240 Warrants)
(b)  Unlawfulness Ground 2: As the marginal note cites Schedule 1 of the NSL Implementation Rules, the coverage of the Conspiracy Offence (a common law offence) is said to be unlawful.
(i)  HCMP 1217 §1(3) (TKO Warrant)
(ii)  HCMP 1218 §1F (TKO Warrant)
(2)  Particularity Challenges – The relevant search warrants are said to be unlawful because they allegedly fail to expressly refer to:
(a)  Unlawfulness Ground 3: “specified evidence” under Schedule 1 to the NSL Implementation Rules and the authority to search for the same under rule 2 of Schedule 1;
(i)  HCMP 1217 §1(2) (TKO Warrant)
(ii)  HCMP 1218 §1B (First Warrant); §1G (TKO Warrant)
(iii)  HCMP 1240 §1B (1240 Warrants)
(b)  Unlawfulness Grounds 4 and 5: the particulars and dates of the offence under investigation;
(i)  HCMP 1217: §§1(4), (5) & (6) (TKO Warrant)
(ii)  HCMP 1218: §§1C & 1D (First Warrant); §§1H & 1I (TKO Warrant)
(iii)  HCMP 1239: §1A (1239 Warrant)
(iv)  HCMP 1240: §1C (1240 Warrants)
(c)  Additional Unlawfulness Ground 2: the fact that the Chief Magistrate was satisfied that there was reasonable ground for suspecting that any specified evidence was in the place.
(i)  HCMP 1217: §1(1) (TKO Warrant)
(3)  Digital Devices Challenge – The relevant search warrant is said to be unlawful because it authorises the search and seizure of personal mobile communication devices along with other materials (Unlawfulness Ground 6).
(a)  HCMP 1218: §1E (First Warrant) & §1J (TKO Warrant)
(b)  HCMP 1239: §1B (1239 Warrant)
(c)  HCMP 1240: §1D (1240 Warrants)
(4)  Take and Sift Challenge – The execution of the search warrant is said to be unlawful because instead of sifting through the materials on the spot, the Police officers took them away for examination at places other than the premises specified in the warrants (Unlawfulness Ground 7).
(a)  HCMP 1218: §1K (First Warrant and TKO Warrant)
(b)  HCMP 1239: §1C (1239 Warrant)
(c)  HCMP 1240: 1^st §1E (1240 Warrants) ^{^[4]}
(5)  Post of Informant Challenge – The relevant search warrant is said to be unlawful because the Police officer who laid the information was posted in the Commercial Crime Bureau rather than the National Security Department of the Police (Additional Unlawfulness Ground 1).
(a)  HCMP 1217: §1(1A) (TKO Warrant)

B2(c)(i). MarginalNote Challenges -UnlawfulnessGrounds 1 & 2

59. I agree with the Commissioner’s submission as follows, in short:

(1)  First, it is wrong to assume that the PFO section 50(7) power cannot cover NSL offences and therefore the warrants citing PFO section 50(7) must be unlawful when it covers the Collusion Offence.
(2)  Second, the suspected Conspiracy Offence was part and parcel of an ongoing investigation into offence endangering national security. The 1217 Plaintiffs’ assertions as to the relevance (or the lack thereof) of the investigatory materials to particular offences are but their speculations and bare assertions. As observed by Chan CJHC (as Chan PJ then was) in Apple DailyLtd v Commissioner of the ICAC (No 2) [2000] 1 HKLRD 647 at 680G-H, “some materials by themselves may not be considered as evidence at a particular stage of the investigation but their relevance and importance will only become clear when considered in conjunction with other materials gathered at some other stage of the investigation”. The 1217 Plaintiffs are assuming that the materials in the present proceedings form the entirety of the evidence gathered by the Police in their relevant investigations. Their speculation, based on such a narrow view of the matter, cannot be given any material weight. It also ignores the fact that Police investigations are of course still ongoing and evolving.
(3)  In any event, insofar as the intended challenge is directed against the lawfulness of the search warrants, then at least on the 1217 Plaintiffs’ case the relevant point in time for the purposes of this enquiry should be the state of police investigation at the time when the search warrants were issued,as opposed to any subsequent state of affairs (such as the prosecution for the “fraud” case, or such other progress of investigation by the Police, which are in any case subject to ongoing investigations). As such, the 1217 Plaintiffs’ proposed reliance on an SCMP article dated 6 May 2021 is entirely irrelevant for the purposes of this enquiry.
(4)  Third, in executing a warrant, the Police is empowered under the common law to reasonably take and detain goods which they come upon and reasonably believe to be material evidence in some other crime.
(5)  Fourth, the Police is vested with power both under the NSL and the PFO in investigating offences against national security and is entitled to invoke both powers in their investigations. But for the marginal note, there is nothing on the face of the warrants to suggest that the Police and the Chief Magistrate were not exercising their power under both the NSL and the PFO. Indeed, the content of the TKO Warrant is identical to the other warrants issued under the PFO, and the body of the warrant referred to both the offence of Collusion and Conspiracy to Defraud, indicating that the Police and the Chief Magistrate were intending to exercise the same powers when making those warrants.
(6)  Thus, at best, the 1217 Plaintiffs have a complaint that the marginal note in the relevant warrants was defective. This, I agree, is a mere technical defect which cannot affect the validity of the warrant.
(7)  Fifth, in relation to the TKO Warrant, given that its wording in fact mirrors the precise wording of section 50(7) of the PFO, the Chief Magistrate must have, at the very least, directed himself to the enquiry under inter alia section 50(7) of the PFO. Thus, given the foregoing and bearing in mind that the court should look to the substance rather than the form, by issuing the TKO Warrant as it is, the Chief Magistrate was invoking inter alia the measures under s 50(7) of the PFO.

B2(c)(ii). ParticularityChallenges

60. There is a distinction between what is desirable to be included in a warrant and that which if absent renders a warrant invalid. A warrant is valid as long as it contains the basic details provided for in the statute. Once such distinction is recognised, it is clear the relevant Plaintiffs’ proposed contentions are doomed to fail.

Express reference to “specified evidence” and s 2 of Sch 1-UnlawfulnessGround 3

61. I agree with the Commissioner that there is no substance in the complaint:

(1)  First, there is no requirement in either Schedule 1 to the NSL Implementation Rules or PFO section 50(7) that the definition of “specified evidence” must be expressly set out.
(2)  Second, the requirements for a valid warrant under Schedule 1 to the NSL Implementation Rulesare clearly satisfied on the face of the TKO Warrant itself.
(3)  Third, if anything, because of the way that the TKO Warrant is framed, the Commissioner has (on this occasion and without prejudice to future cases) applied for a more limited form of warrant than would otherwise be available under Schedule 1 of the NSL Implementation Rules.
(4)  Fourth, so far as the difference in wording between the TKO Warrant and the empowering provision (ie Schedule 1 of the NSL Implementation Rules) can be characterised as any defect at all, this clearly cannot be a sufficient basis to nullify or render unlawful the TKO Warrant.
(5)  Fifth, insofar as the other relevant warrants are concerned (ie the 1218 First Warrant and the 1240 Warrants), they expressly restricted the seizure to materials which are “likely to be of value” to the investigation of (inter alia) the relevant offence. This sufficiently conveys the scope of the search, which is the same in substance as “specified evidence” under Schedule 1 of the NSL Implementation Rules (defined as “anything that is or contains, or that is likely to be or contain, evidence of an offence endangering national security”).

62. The Commissioner does not quarrel with the suggestion that “the statutory requirements must be strictly applied and the search and seizure be carefully scrutinizied”. However, at the same time, such general remarks must be read subject to the well-established positions that:

(1)  “If the empowering statute does not require any particular form for the warrant, it would be held valid so long as it contains the basic details which are provided for in the statute” (Apple Daily (No 2) at 674I-J).
(2)  Because of the “uncertainties and difficulties” which occur within the context of applying for search warrants, “officers are not expected to be very precise and exact on what they are looking for and seize upon a search. They are even less expected to decide quickly what may in law constitute evidence for use in a future prosecution. If too strict and literal a construction is given to a power of search or seizure, this may tamper the effectiveness of an investigation. In order to make a search and seizure operation meaningful, a fair balance has to be struck between the interest in bringing criminals to justice and the interest of protecting citizens' right and privacy”: Apple Daily(No 2) at 680H-I per Chan CJHC.
(3)  Thus, it has subsequently been held that a pragmatic approach is to be adopted in assessing the sufficiency of information, and the difficulty of the officer to specify a particular piece of information to be relevant should be recognised especially when an investigation is at its initial stage: Y v The Commissioner of the Independent Commission Against Corruption [2020] 4 HKC 206 at 215C. Emphasis is placed on the desirability of a construction which leads to practical justice: Lee Chu Ming Martin and Others[2020] HKCFI 2028 at §126 per Alex Lee and Coleman JJ.
(4)  Hence, the central point of the analysis is that Schedule 1 to the NSL Implementation Rules does not provide any specific form for the warrant. As to the submission that the warrant issued thereunder “must” specify a number of details, this is neither supported by the wording of rule 2 of Schedule 1 of the NSL Implementation Rules northe above authorities on warrants generally.
(5)  Insofar as the 1217 Plaintiffs rely on their speculation that the seized items under the TKO Warrant cannot be relevant to the Collusion Offence and hence the scope of seizure went beyond the scope of “specified evidence”, that is, again, pure speculation as to the details of the investigations and confidential contents of the information laid before the Chief Magistrate.

Particulars and dates of offences -UnlawfulnessGrounds 4 & 5

63. In short, I agree that they too are devoid of merits:

(1)  As a general principle, as discussed above, if the empowering statute does not require any particular form for the warrant, the warrant would be held valid so long as it contains the basic details which are provided for in the statute: Apple Daily (No 2) at 680H-I. Neither section 50(7) of the PFO nor Schedule 1 of the NSL Implementation Rules provide for any prescribed form for a search warrant. The only remaining question before the court is whether the relevant Search Warrants contain the basic details provided for in the empowering statute.
(2)  In considering this issue, the courts have repeatedly emphasized that it may be impracticable to be specific about the offences at the investigation stage and secrecy considerations may come into play (which would be a fortiori in criminal investigations in the NSL context). Hence, it is desirable to adopt a construction that leads to practical justice.
(3)  Unlawfulness Ground 4 relates to the TKO Warrant for the Collusion Offence under NSL Article 29. There is no dispute that the TKO Warrant specifically referred to the said offence. The complaint is that it did not go on to spell out which of the “offences” under NSL Article 29 is relied on. Such argument is I agree premised upon an erroneous interpretation of NSL Article 29. The various “limbs” under NSL Article 29 are different possible acts which can constitute the Collusion Offence instead of “separate offences” as alleged by the 1217 Plaintiffs.
(4)  Unlawfulness Ground 5 is concerned with the search warrants with respect to the Conspiracy Offence. The warrants contain all the basic requirements as identified by G Lam J (as G Lam JA then was) in K v Commissioner of Police at §46, namely:
“…it must be an authorisation directed to the police; it must specify the premises to be searched; it must specify the offence that has been committed or reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, to the investigation of which the articles sought are likely to be of value; it must indicate the articles which are sought; and it must show that the magistrate is satisfied there is reasonable cause to suspect that there is in the specified premises such articles likely to be of value to the investigation.” (emphasis added)

64. The 1217 Plaintiffs pray in aid (i) Re Ip and Willis (Unrep, HCMP 1472/1989, 8 August 1989); (ii) Alder [1997] AJ No 756, a decision of the Alberta Supreme Court; (iii) Re United Distillers Ltd [1946] BCJ No 134; and (iv) the decision of High Court of Australia in Smethurst (2020) 94 ALJR 502.

65. I agree with the Commissioner that they do not assist the Plaintiffs:

(1)  Re Ip and Willis is clearly distinguishable from the present case. The search warrant in Re Ip and Willis did not specify the precise offence, and merely mentioned “an offence referred to in section 10 of the Independent Commission Against Corruption Ordinance”. Section 10 of the ICACO in turn provides at section 10(5) a number of “offences…specified for the purposes of subsection (2)”. In reaching the conclusion that the description of the offence is too general, Sears J specifically pointed to the fact that “Section 10 contains a large number of offences ranging from perverting or obstructing the course of the justice, to theft, evading liability by deception, making off without payment etc. This warrant was silent as to the particular offence” (p 11).
(2)  As mentioned above, there is only one single offence under NSL Article 29, that is the Collusion Offence. The existence of different possible acts which can constitute the offence under NSL Article 29 does not detract from the fact that the relevant Search Warrants have clearly identified NSL Article 29 as the relevant offence in question. There is no requirement at law that the Search Warrants themselves must specify any particular limb of possible acts under NSL Article 29 to be valid and lawful.
(3)  In the circumstances, the requirement that “[t]he warrant should describe the alleged offence in respect of which the search is authorised so as not to mislead the reader as to the nature of the alleged offence”is clearly satisfied: Re Ip and Willis at p 9.
(4)  Alder, Re United Distillers and Smethurst are not decisions by the English or Hong Kong courts. These cases must be approached with caution as the relevant empowering statute may be very different.
(5)  The search warrant in Alder is issued under section 443 of the Criminal Code of Canada, which requires a magistrate “to be satisfied by information upon oath, not only that the informant suspects and that he has just and reasonable grounds to suspect, but also setting forth the causes of suspicion in order that he may be able to judge whether the case is a proper one to grant his warrant for search or not” (§3). That explains why the Alberta Supreme Court held that a search warrant issued under the Criminal Code of Canada has to disclose “how the alleged offence of fraud took place” (§38). There is no such requirement under the empowering statues in the present case.
(6)  Re United Distillers, which is also a Canadian case, should also be distinguished on the same basis.
(7)  More importantly, the principles governing the validity requirements of a search warrant in these jurisdictions are different from those set out in the Hong Kong cases. In this regard, as Chow J (as Chow JA then was) and Alex Lee J cautioned in Tong Ying Kit v HKSAR[2020] HKCFI 2133 at §47, overseas cases “must, of course, be read in the context of the relevant constitutional regimes and the specific provisions under challenge, and cannot be applied to Hong Kong directly”. For example, in Smethurst, the Australian Court took the view that the warrant has to state particulars including “[the party] to whom the document or article was said to have been communicated” (§32). These are clearly particulars of offences which are not required to be stated under Hong Kong law: K v Commissioner of Policeat §46. As such, the reasoning in Smethurst has no direct application to search warrants governed by and granted under Hong Kong law.

66. For reasons set out above, the contentions advanced by the 1217 Plaintiffs based on Alder, Re United Distillers and Smethurst should not be entertained. Furthermore:

(1)  The scope of search is dependent upon the facts of the case and the exigencies of the investigation in question. That it covers a smaller or larger area or fewer or more entities is neither here nor there.
(2)  On a plain reading of the TKO Warrant, it is clear that the documents or records of the 19 companies “are likely to be value (whether by itself or together with anything else) to the investigation of [the two offences]”. That is the information that was required to be conveyed to the recipient of the search warrant. It needs not provide information to enable speculations as to targets of the ongoing investigations.
(3)  In any event, the Commissioner is entitled to rely on public interest immunity: Apple Daily (No 2) at 663E, 664B per Keith JA. It is nonsensical to suggest that details provided in an affirmation should have been included in a search warrant.

67. The Lai Family in their submissions also submitted that the offence is not “sufficiently indicated”. This really adds no more to the arguments put forward by the 1217 Plaintiffs.

68. As to the Plaintiffs’ disagreement over the technical nature of the so-called defects:

(1)  Again, there is no real quarrel by the Commissioner with the need to construe an empowering statutory provision strictly.
(2)  However, over-emphasis on form (above substance) is against the authorities, including Chan CJHC’s pertinent remarks in Apple Daily (No 2). Further, at 666E-667B, Keith JA cited and adopted Lord Hoffmann’s remarks that “it would be wrong” to create “formal requirements for the validity of a warrant which the statute did not impose”. Unfortunately, this is precisely what the 1217 Plaintiffs are seeking to invite this court to do.
(3)  In addition, there is no answer to the principles derived from Apple Daily (No 2) namely, inter alia, where the technical defects “have caused little or no prejudice to the applicants…it would be wrong to treat them as punishable by invalidity of the entire search”.

69. As to the assertion that the Commissioner’s submission as to the construction of the TKO Warrant as being “circular, non-sensical and wholly devoid of merits”, again the 1217 Plaintiffs’ submission misses the point. The fact of the matter is, one needs to construe as a matter of substance the Chief Magistrate’s grant of the TKO Warrant. As discussed above, where the wording of the TKO Warrant tracks the wording of section 50(7) of the PFO, it confirms that the Chief Magistrate would have been satisfied (at the very least) that the PFO requirements had been satisfied. The marginal note or the subjective intention of the Commissioner is neither here nor there.

70. As regards the 1217 Plaintiffs’ further new complaint that the TKO Warrant failed to show that the Chief Magistrate was satisfied that “there is reasonable ground for suspecting that any specified evidence is in the place” (ie Additional Unlawfulness Ground 2), again, it is clearly doomed to fail:

(1)  Rule 2(2) of Schedule 1 to the NSL Implementation Rules provides that a magistrate may issue a warrant “if the magistrate is satisfied by information on oath that there is reasonable ground for suspecting that any specified evidence is in the place.” In considering the police officer’s application, the Chief Magistrate must have directed himself to the aforesaid requirement. It goes without saying that, by his very act of issuing the Warrant, he must have been satisfied by the information laid before him that the requirement under rule 2(2) was met. If the Chief Magistrate was not so satisfied, he would have refused to grant the TKO Warrant. With respect, this is a highly pedantic complaint.
(2)  In Attorney General of Jamaica v Williams [1998] AC 351, the Privy Council held that the issuer of the warrant should be presumed to have acted in accordance with what is required of him under the Statute. Lord Hoffmann cited the following passage in Forte JA’s judgment with approval (361H-362A):
“The justice of the peace, having issued the warrants on the basis of the ‘information on oath’ must have been so satisfied, and it is not open to the court, in the absence of the details of what transpired before the justice of the peace, to assume he acted contrary to what is required of him in the Act. For those reasons I would hold that the search warrants were lawfully issued.” (emphasis added)
(3)  In fact, the same approach was adopted in IRC vRossminster Ltd [1980] AC 952, where the court rejected a similar challenge (with Lord Salmon dissenting). As Lord Wilberforce observed at 1000A-B, such complaint is “technical” and “irrational”:
“There is no mystery about the word “warrant”: it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal. The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity. To complain of its absence in the present case when, as is admitted, no challenge can be made as to the satisfaction, in fact, of the judge, would be technical and indeed irrational. I can find no ground for holding these warrants invalid.” (emphasis added)
(4)  Likewise, Lord Scarman considered that it is desirable for a warrant to make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with, but he made it clear that the omission “was not fatal to the validity of the warrants” (1024D).
(5)  It should be noted that the TKO Warrant is a standard form warrant. As Lord Wilberforce pointed out in Rossminster Ltd, a warrant is simply a document issued by a person after having been satisfied that the statutory conditions are met. There is no requirement under rule 2(2) of Schedule 1 of the NSL Implementation Rules that the warrant must contain a statement to point out the obvious, ie that the magistrate was satisfied that the statutory conditions are met.
(6)  Reference is made to Lord Salmon’s dissenting opinion in Rossminster Ltdby the 1217 Plaintiffs. However, the dissenting speech does not assist the 1217 Plaintiffs, as the majority clearly took the view that the absence of a statement of satisfaction on the part of the judicial authority does not affect the validity of a warrant.

B2(c)(iii). Digital DevicesChallenge-UnlawfulnessGround 6

71. Unlawfulness Ground 6 is concerned with the search and seizure of digital devices which may be personal mobile communications devices along with other materials. In essence, the Lai Family is arguing that a “separate warrant” is required for the contents of such digital devices.

72. This can be disposed of shortly. The answer is that Schedule 1 to the TKO Warrant specifically provided for “business records, accounting documents, personnel documents, digital documents, digital devices, company kit or any other articles relating to the business operations of the following companies”. It plainly authorised the search and seizure of both the physical digital devices and the digital documents therein.

73. The Lai Family’s contention is based on a clearly wrong reading of the Court of Appeal’s decision in Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529.

B2(c)(iv). Take andSiftChallenge - UnlawfulnessGround 7

74. Unlawfulness Ground 7 concerns the taking away from premises of materials seized. In this regard, the reliance by the relevant Plaintiffs on R v Chesterfield Justices, ex pBramley [2000] QB 576 is misguided.

B2(c)(v). Post ofInformantChallenge -Additional Unlawfulness Ground 1

75. This is a new complaint which was not before the court at the 19 Nov Hearing.

76. I agree with the Commissioner that this proposed Ground is doomed to fail as a matter of law. It is incorrect that NSL only confers power on police officers posted in the NSD to apply the measures under the first paragraph of NSL Article 43:

(1)  NSL Article 43 and Schedule 1 of the NSL Implementation Rules have to be read as a whole.
(2)  It is clear from the second paragraph of NSL Article 43 that the measures stipulated in the first paragraph of NSL Article 43 were to be applied by law enforcement authorities not limited to the NSD. The second paragraph of NSL Article 43 provides that “[the Committee] shall be responsible for supervising the implementationof the measures stipulated in the first paragraph of this Article by law enforcement authorities including the department for safeguarding national security of the Hong Kong Police Force.” (The Chinese authentic text: “香港特別行政區維護國家安全委員會對警務處維護國家安全部門等執法機構採取本條第一款規定措施負有監督責任。”) (emphasis supplied)
(3)  It is also clear from the third paragraph of NSL Article 43 that the phrase “the measures stipulated in the first paragraph of this Article” (“本條第一款規定措施”) refers to the powers under the first paragraph of NSL Article 43(1) to (7). The third paragraph of NSL Article 43 authorises the Chief Executive, in conjunction with the Committee, to make the NSL Implementation Rules for the purpose of applying “the measures under the first paragraph of this Article”. The NSL Implementation Rules were then accordingly made, with its 7 Schedules each dealing with one measure under the first paragraph of NSL Article 43(1) to (7), including Schedule 1 concerning search warrants.
(4)  The above is reinforced by the wording of Rule 2(1) of the NSL Implementation Rules (“A police officer may, in accordance with Schedule 1, exercise the power to search places for evidence” “警務人員可按照附表1所訂，行使以下方面的權力：為搜證而搜查有關地方”), as well as rule 2(1) of Schedule 1 which similarly refers to “a police officer” as opposed to an officer in the NSD.

77. Accordingly, I agree that all grounds of the proposed Unlawfulness Challenge are clearly devoid of merits. This is a further reason why the amendments should not be permitted to be introduced, in addition to the want of jurisdiction and/or the breach of the Exclusivity Rule.

B3. Delivery-Up/Return/Injunction

78. In addition to the originally pleaded LPP, JM and Out of Scope grounds, the Subject Plaintiffs have raised, inter alia, the following new prayers in their Draft Amended Originating Summonses:

(1) New plea for return of materials on grounds of irrelevance (see paragraph 4(2) above); and
(2) New prayer for interlocutory and/or final injunction (see paragraph 4(4) above).

79. The Commissioner has made the following observations on the Subject Plaintiffs’ amendment applications in general:

(1)  It has been said that the Amendment Summonses are merely “clarifying” the original Originating Summonses. This is clearly not the case as the proposed amendments include (i) deletion of previous pleas and (ii) adding new pleas.
(2)  Indeed, if the sole purpose of the Amendment Summonses is to “clarify” the original cause of action or relief sought, then the proposed amendments are unnecessary. These matters are already clear from the original plea. It is not necessary to revise the subject Originating Summonses to include legal arguments.
(3)  Insofar as the proposed amendments are addition of new pleas, the court should not order a pleading to be amended “unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”: Order 20, rule 8(1A) of the RHC.
(4)  For reasons set out below, the above proposed amendments are bound to fail even taking the Plaintiffs’ proposed pleaded case to the highest, and thus leave to amend should not be granted: Hsu Ming Chi v Lam Shu Chit (Unrep, HCCL 8/2013, 22 October 2014) at §15.

80. Insofar as LPP and JM are concerned, the request for immediate delivery-up has been overtaken by events. Following the Commissioner’s LPP Direction Summons, a Protocol for joint inspection has been laid down for the parties to identify items which are subject to LPP and/or JM. The joint inspection is now in progress.

B3(a). New prayer for return of materials on grounds of irrelevance

81. This head of complaint can be divided into the following two subcategories:

(1) Allegations of irrelevance of the seized materials to the offences which the Plaintiff contends are not covered by the Search Warrant relying on the marginal note of the Search Warrant;^{^[6]}
(2) General allegations of irrelevance of the seized materials to the offences named in the Search Warrant.^{^[7]}

82. Under both subcategories, the Plaintiffs are essentially asking this court to predetermine the question of relevance before the criminal investigation comes to an end. This is impermissible. In short:

(1) There is no basis for a law enforcement agency to deliver up or return materials seized as part of an ongoing police investigation subject to completion of investigation and criminal proceedings: Apple Daily (No 2) at 680C-E; 680F-I.
(2) By seeking any sort of directions to determine the question of relevance, the court is being asked to impede on existing criminal investigation, and to carry out the impossible task of determining at this stage what are and what are not relevant materials for an on-going criminal investigation. This should not be allowed: Faisaltex Ltd v Chief Constable of Lancashire Constabulary [2009] EWHC 1884 (QB) at §§ 10, 19-26.

83. There is no answer provided to this impermissible approach by the Subject Plaintiffs.

B3(b). New prayer for interlocutory/final injunction^{^[8]}

84. I agree the proposed amendment serves no useful purpose and is not necessary for determining the real question in controversy between the parties:

(1) Insofar as an interlocutory injunction is concerned, that is overtaken by events because the treatment of all seized materials (save for HCMP 1239-1240/2020 where no LPP claim is asserted) are now covered by the Protocol as ordered by the court on 19 November 2020 and varied on 26 February 2021 (see §§3 & 4 of the Annex to the Protocol on “Extraction and Access”). To the extent the Plaintiffs are now asking for a new requirement that the Commissioner be somehow restricted from accessing the part of the materials to which he may have access under the Protocol pending the final resolution of the Originating Summonses, that is in effect and in substance an application for variation of the Protocol (through the backdoor) that should not be allowed. Further, such interlocutory injunction is in any event circular and unworkable, because it requires the court to conduct a screening and determination exercise as to what falls within the relevant categories for return in the interim pending the resolution of these proceedings which are for the very purpose of conducting such screening and determination. In effect, I agree that such interlocutory injunction would only have the effect of paralysing criminal investigations in the interim, which is also contrary to both the spirit and letter of the Protocol currently in place.
(2) Insofar as a final injunction is concerned, that is unnecessary because upon the resolution of the Originating Summonses in these proceedings, materials which ought to be returned would be returned according to the court's determination or parties’ agreement as to the relevant claims.

85. The Plaintiffs also seek an injunction to restrain the Commissioner from accessing, reviewing and/or making any use of the seized materials which fall within the proposed categories for return of materials. Again, this suffers from the same deficiency as discussed above.

86. Moreover, I agree that this court cannot be asked to grant any injunctive relief against the Commissioner acting in his official capacity.

87. Section 16 of the Crown Proceedings Ordinance, Cap 300 (“CPO”) provides that:

“(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Ordinance, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:
Provided that—
(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and
(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.
(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.”

88. Section 2 of the CPO provides that:

“civil proceedings includes proceedings in the Supreme Court or the District Court for the recovery of fines or penalties, but does not include proceedings of a nature such as in England are taken on the Crown side of the Queen’s Bench Division of Her Majesty’s High Court of Justice;”
“(4) Any reference in Part IV or V of this Ordinance to civil proceedings by or against the Crown, or to civil proceedings to which the Crown is a party, shall be construed as including a reference to civil proceedings to which the Secretary for Justice, or any Government department, or any officer of the Crown as such, is a party.” (emphasis added)

89. Further, following the resumption of sovereignty in 1997, pursuant to paragraph 2, Schedule 8 of the Interpretation and General Clauses Ordinance, Cap 1, the reference to “Crown” under the CPO shall be taken to be a reference to the Government of the HKSAR.

90. The following Hong Kong cases have referred to section 16 of the CPO:

(1)  In Hall v Commissioner of the Independent Commission Against Corruption [1987] HKLR 210, the Court of Appeal held that section 16 precludes the granting of an injunction against the Crown. It is to be noted that Hall is a judicial review application(at 212G). The remedy sought by the plaintiff includes three declarations and one injunction. It was observed by Cons VP at 213D that:
“The Attorney General, who has appeared in this Court for the Commissioner, observes that the final part of the relief granted is in effect an injunction against the Crown, a relief precluded by s 16 of the Crown Proceedings Ordinance (Cap 300). Mr Litton who has appeared throughout for Mr Hall, has not argued against that observation, but the crux of the appeal is the correctness of the three declarations.”
(2)  In Supreme Finance Ltd v Wan Hang Trading Ltd and Others (Unrep, HCA 11877/1983, 12 August 1983), Mr Commissioner Lee Q C held that the court does not have jurisdiction to order the Director of Immigration to put the name of an individual on the stop list. The relevant words in the order proposed by the applicant was that “The bailiff shall upon information by the Director of Immigration that...the 2^nd Defendant...is passing through a point of immigration...”. Mr Commissioner Lee Q C refused to grant the order, at p 18:
“All the Director of Immigration is required to do is to render assistance to the bailiff if so called upon to assist him to arrest and deliver the 2^nd Defendant to the debtors' jail. Miss Yuen submitted that the Director ought, upon the service on him of the proposed order, to put the 2^nd Defendant's name on the stop list. I do not agree. The proposed order does not require him to do so; and the court has no power to direct him to do so by virtue of section 16(2) of the Crown Proceedings Ordinance.”
(3)  In Fung Man Ying Doris t/a Good Fit Garment Factory v Chief Bailiff of the Supreme Court of Hong Kong & Anor [1980] HKC 454, Rhind J refused an application for interim injunction against the court bailiff for wrongful seizure of its goods. At 459E, it was held that:
“Secondly, insofar as the plaintiff’s application for an interlocutory injunction was concerned, this was a complete non-starter all along. The plaintiff was, in effect, seeking injunctive relief against the Crown or Crown servants, a type of remedy ruled out by the provisions of s 16 of the Crown Proceedings Ordinance.” (emphasis added)
(4)  Further, Rhind J refused the application of the plaintiff for an interim declaration against the court bailiff:
“Nor could the plaintiff achieve the same result by seeking, in effect, an interim declaration against the Crown, or its servants, for that is a form of remedy unknown to the law. (See Constitutional and Administrative law (3^rd Ed) by SA de Smith at 607).” (at 460A)
(5)  In Wong Tsz Jam v Commissioner of Police [2008] 5 HKLRD 164, the Court of Appeal dismissed an interim injunction application against the Commissioner of Police and the Secretary for Justice. While the court discussed the American Cyanamid principles and held that the injunction would have been dismissed, the Court of Appeal also dismissed a constitutional challenge against section 16 of the CPO. At §§43-48:
“43. 本庭認爲，就記錄受查人士的個人資料是否有違反《香港人權法案》第14條須視乎情況。即使有任何認真的爭論，考慮到損害賠償及包括公共利益的相對方便的衡量，撇開《官方法律程序條例》而論，拒絕非正審強制令是對的。
44. 至於《官方法律程序條例》，第16條適用於由官方提出或針對官方提出的任何民事法律程序。
45. 根據《官方法律程序條例》第2(2) 條釋義：
「民事法律程序」包括為追討罰款或罰金而在最高法院或地方法院進行的法律程序，但不包括性質屬假若在英格蘭則於女皇陛下高等司法院皇座法庭公訴部進行的法律程序；
46. 皇座法庭的公訴部 (Crown side of the Queen's Bench Division) 是指皇座法庭處理刑事及君主特權轄權(prerogative jurisdiction)的部分，有別於處理民事訴訟的申訴部分(plea side) (見Jowitt’s Dictionary of English Law (2^nd ed, 1977))。
47. 《官方法律程序條例》第16條只適用於由官方提出或針對官方提出的任何民事法律程序，屬私法範疇。根據《高等法院條例》(第4章)第21K條及《高等法院規則》(第4章,附屬法例)第53號命令第3(10)(b)條規則，法庭可於司法覆核(即舊有的君主特權轄權)的程序中向官員發出正審與非正審強制令，屬公法範疇。其實，有關對官員濫用權力或行事偏頗的指稱屬於公法範疇。
48. 顯而易見，第16條的立法意圖在於官方一向尊重法庭的裁決，法庭向官方發出宣佈各方權利的命令已足夠，毋須發出強制令。這與強制令屬酌情權是相符的。”

91. Therefore, to draw the threads together, section 16 applies to preclude the court from granting any form of injunctions against the Government, interlocutory or otherwise, at least in private law proceedings.

92. Relying on In re M [1994] 1 AC 377 (HL), the Plaintiffs argue that injunction could be obtained against an officer personally although he had been acting in his official capacity. I agree with the Commissioner’s submission that the passages relied on by the Plaintiffs are cited out of context:

(1)  The scope of section 21 of theCrown Proceedings Act 1947 has been explained in Lord Woolf’s judgment at 412E-G:
“Where, prior to 1947, an injunction could be obtained against an officer of the Crown, because he had personally committed or authorised a tort, an injunction could still be granted on precisely the same basis as previously since, as already explained, to grant an injunction could not affect the Crown because of the assumption that the Crown could do no wrong. The proceedings would, however, have to be brought against the tortfeasor personally in the same manner as they would have been brought prior to the Act of 1947. If, on the other hand, the officer was being sued in a representative capacity, whether as an authorised government department, for example, one of the named Director Generals, or as Attorney-General, no injunction could be granted because in such a situation the effect would be to give relief against the Crown. The position would be the same in those situations where proceedings would previously have been brought by petition of right or for a declaration but could now be brought against the authorised department.” (emphasis added)
(2)  In sum, where an officer is sued in his personal capacity, an injunction could be obtained against him. But where he is sued in a representative capacity, no injunction should be granted. Such proposition is consistent with Lord Woolf’s analysis at 409H-410B:
“The position so far as civil wrongs are concerned, prior to the Act of 1947, can be summarised, therefore, by saying that as long as the plaintiff sued the actual wrongdoer or the person who ordered the wrongdoing he could bring an action against officials personally, in particular as to torts committed by them, and they were not able to hide behind the immunity of the Crown. This was the position even though at the time they committed the alleged tort they were acting in their official capacity. In those proceedings an injunction, including, if appropriate, an interlocutory injunction, could be granted. The problem which existed in seeking a remedy against the Crown was not confined to injunctions…” (emphasis added)
(3)  In the said passage, Lord Woolf is clearly referring to wrongs committed by the officer in his personal capacity.
(4)  On the contrary, in the present case, the Commissioner is clearly sued in his representative capacity. The acts complained of are the application for and execution of Search Warrants. It is difficult to see how such acts can be classified as a personal wrong on the part of the Commissioner himself.

C. 1217INJUNCTIONSUMMONS

93. This application can be dealt with relatively briefly in the rest of this Decision.

94. First and foremost, I agree there is no utility in the 1217 Injunction Summons. In particular:

(1)  At paragraph 1, the 1217 Plaintiffs seek an order that the Commissioner be retrained from reviewing the seized materials pending the determination of the Originating Summons. As mentioned above, this request has been overtaken by events as the court has already put in place the Protocol for the handling and viewing of the seized materials.
(2)  Paragraphs 2 and 3 of the 1217 Injunction Summons are (at best) essentially request for discovery by interrogatories under Order 26 of the RHC. The Plaintiffs would have to satisfy the court that such requests are “necessary either for disposing fairly of the cause or matter or for saving costs”: Hong Kong Civil Procedure 2021 Practice Note 26/4/11. Applying the test:
(a)  Paragraph 2 requires the Commissioner to disclose the documents it has reviewed. This request is plainly unnecessary as the parties already know which of the seized items have been (or could have been) reviewed by the Commissioner. They include the unsealed materials and those sealed materials which have since been confirmed to be not subject to LPP/JM claim upon the Plaintiffs’ Schedules under the Protocol and extracted in accordance with the Protocol.
(b)  Paragraph 3 requires the Commissioner to disclose which of the items fall under “specified evidence” for the Collusion Offence and Conspiracy Offence. As the court disallows the proposed amendment to add the prayer for return based on the ground of irrelevance, there is no basis to order such disclosure.
(3)  Paragraph 4 seeks an order for the return of materials. This is clearly impermissible (see: Section B3 above).

95. Second, as to the balance of convenience, I agree that the 1217 Plaintiffs have failed to address the Commissioner’s detailed submissions in this regard. In summary:

(1)  There is no (and there has never been any) suggestion of irreparable damage caused to the 1217 Plaintiffs unless the 1217 Injunction Summons is allowed.
(2)  On the contrary, the 1217 Plaintiffs ignore and do not address the submissions of the Commissioner highlighting the need to continue criminal investigation, for which damages cannot be an adequate remedy if impeded. In particular:
(a)  In Faisaltex, it was held by Eady J (in the context of a blanket challenge on the ground of relevance) at §21 that:
“Obviously, an issue of relevance cannot finally be determined until the stage when the issues in criminal proceedings, if any, have been identified. In particular, one cannot anticipate at this stage any defences that may be relied upon. Inevitably, therefore, judgments as to potential relevance at this stage can only be provisional. What is relevant for the purposes of an investigation into whether criminal offences have been committed is likely to be judged by a different and broader test from that applicable in a later trial when the issues have been more closely defined.” (emphasis added)
(b)  In the words of Freedman J in Intertrade Wholesale Ltd v Commissioners for HM Revenue and Customs [2018] EWHC 3476(QB)at §§46, 50-51:
“46. I am of the view that if an injunction were granted but at trial it would appear that HMRC was entitled to do that for which it was prevented from doing due to the injunction, damages would not be an adequate remedy to compensate it for the loss that it would suffer due to the injunction. Its work in law enforcement would be seriously interfered with and its ability to prosecute the alleged criminal offences underlying the search warrants would be seriously damaged. Further and in any event, there is no evidence of the ability of the Claimants to compensate at all, let alone on the possible premise that they are found guilty of the alleged criminal offences.
…
50. …However, for the moment, the position is that if HMRC is restrained from relying on the documents seized from the premises pending such trial, the crime investigation will be delayed and impeded.
51. In my judgment, it is in the public interest that the HMRC should pursue their investigations thoroughly, efficiently and speedily so as to make a report in due course to a prosecutor who can then decide whether criminal proceedings should be instituted. The Claimants are seeking the exercise of a judicial discretion to interfere in an ongoing and incomplete criminal investigation, in a way that will necessarily impede it. A consideration in the balance of convenience is that it is in the public interest for that investigation to be carried out so that if appropriate charges can be brought.” (emphasis added)
(3) A further important feature of the case is that the criminal proceedings are now ongoing. In criminal proceedings, evidence which were found to have been obtained improperly (for example, lack of authority or invalidity of search warrants) do not per se preclude the admissibility of the evidence in criminal trials: HKSAR v Chan Kau Tai[2006] 1 HKLRD 400 at 443A-450H. This is an important factor to be taken into account in considering the appropriateness of injunctive or similar relief, at least in relation to those items of evidence which the Police have identified as used and/or unused exhibits in respect of the District Court “fraud” case.

96. Third, the submissions of the 1217 Plaintiffs are premised on there being a determination that the warrants have been ordered or agreed to be quashed. Specifically, regarding R v Chief Constable of the Lancashire Constabulary, ex p Parker [1993] 2 All ER 56, Bramleyand Alder:

(1)  Both Bramley and Parker are judicial review proceedings. Alder was a Canadian case.
(2)  In Alder, the warrants had been quashed. As a result, the court ordered the return of the relevant documents: “It is my view that this court's power to order the return of property that has been unlawfully seized, and which cannot be shown to be required as evidence, ought to be excisable when the court, on a motion for certiorari, has set aside a search warrant”.
(3)  In Bramley: The court did not make any order of certiorari or declaration in this case (590A). However, the Chief Constable had conceded that the warrants should not have been issued, and that the searches and seizures were unlawful (580F-H). The court held that “in any event, as already noted, all of the documents have been returned. In the light of the concessions made I see no reason in this case to go beyond the terms of this judgment so as to make any order of certiorari or any of the declarations sought” (590A-B).
(4)  In Parker: The court held that the relevant warrants were lawfully issued but were not produced to the applicants during execution. For this reason, the court accordingly refused the application for certiorari, but granted a declaration of breach (62h-j) with the result that the relevant documents were ordered to be returned forthwith (64h).
(5)  Hence, none of these cases support the suggestion that a final order for, inter alia, immediate return of seized documents may be made on an interlocutorybasis.

97. Fourth, for reasons explained Sections B2(a) and B2(b) above, any suggestion of an injunction against the Commissioner does not get off the ground.

98. Indeed, the 1217 Injunction Summons continues to predominantly seek a final order in substance. This means that the court cannot approach this application on the basis of the “relatively low threshold of having a ‘serious issue to be tried’ on the merits”.

99. Fundamentally, I agree with the Commissioner’s submission that there is currently in place the Protocol ordered by the court to deal with any LPP/JM claims to strike a balance between the interests of the Plaintiffs on the one hand (viz to guard against review of LPP/JM materials by the Commissioner) and the interests of the Commissioner on the other (to proceed with ongoing criminal investigations based on materials not subject to LPP/JM claims). Having benefitted from the Protocol, the 1217 Plaintiffs cannot at the same time put everything to a standstill by the 1217 Injunction Summons. They simply cannot have their cake and eat it.

D. CONCLUSION

100. For the reasons set out above, I dismiss the Amendment Summonses (save and except to the extent set out at paragraph 4(3) above) and the 1217 Injunction Summons.

101. I see no reason why costs should not follow the event. Accordingly, I order that the costs of the Amendment Summonses be borne by the Subject Plaintiffs and the costs of the 1217 Injunction Summons be borne by the 1217 Plaintiffs (with a certificate of 3 counsel to the Commissioner).

102. The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

103. Lastly, I express my gratitude to counsel on all sides for their helpful assistance in this matter.

(Wilson Chan)
Judge of the Court of First Instance
High Court

Mr Simon Westbrook, SC, leading Ms Cherry Xu, instructed by Messrs Robertsons, for the plaintiffs in HCMP 1217/2020

Mr Albert N B Wong, instructed by Messrs Robertsons, for the plaintiffs in HCMP 1218/2020, 1239/2020 and 1240/2020

Mr Patrick Siu, instructed by Messrs Robertsons, for the plaintiff in HCMP 1221/2020

Mr Michael Ng, instructed by Messrs Robertsons, for the plaintiff in HCMP 1222/2020

Mr Jenkin Suen, SC, leading Mr Michael Lok, instructed by the Department of Justice, and Ms Leona Cheung, PGC(Ag) of the Department of Justice, for the defendant

[1] There are two paragraphs named “1E” in the AOS in HCMP 1240/2020.

[2] There are two paragraphs named “1E” in the AOS in HCMP 1240/2020.

[3] There are two paragraphs named “1C” and “1D” respectively in the AOS in HCMP 1240/2020.

[4] Wrongly cited as [1999] in Stone.

[4] There are two paragraphs named “1E” in the AOS in HCMP 1240.

[6] HCMP 1217 (§1A(iv)); HCMP 1221 (§1A(d)); HCMP 1222 (§1A(v))

[7] HCMP 1217 (§1A(ii)); HCMP 1218 (§1M(iv)); HCMP 1221 (§1A(d)); HCMP 1222 (§1A(iv)); HCMP 1239 (§1D(ii)); HCMP 1240 (2^nd §1E(iii))

[8] (1) HCMP 1217 (§1B); (2) HCMP 1218 (§1N); (3) HCMP 1221 (§1B); (4) HCMP 1222 (§1B); (5) HCMP 1239 (§1E); and (6) HCMP 1240 (2^nd §1F)

HCMP 1217-1222/2020
[2021] HKCFI 1128
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1217 OF 2020

________________________

BETWEEN
	NEXT DIGITAL LIMITED (壹傳媒有限公司)	1st Plaintiff
	APPLE DAILY CHARITABLE FOUNDATION (蘋果日報慈善基金)	2nd Plaintiff
	APPLE DAILY LTD (蘋果日報有限公司)	3rd Plaintiff
	NEXT MEDIA MANAGEMENT SERVICES LIMITED (壹傳媒管理服務有限公司)	4th Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

AND	HCMP 1218/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

________________________

BETWEEN
	LAI CHEE YING	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

AND	HCMP 1219/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1219 OF 2020

________________________

BETWEEN
	CHOW TAT KUEN	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

AND	HCMP 1220/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1220 OF 2020

________________________

BETWEEN
	CHEUNG KIM HUNG	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

AND	HCMP 1221/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1221 OF 2020

________________________

BETWEEN
	NG TAT KONG KITH	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

AND	HCMP 1222/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

________________________

BETWEEN
	WONG WAI KEUNG	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

________________________

Before: Hon Wilson Chan J in Chambers

Date of Hearing: 26 February 2021

Date of Ruling: 26 February 2021

________________________

R U L I N G

________________________

1. This is my ruling on the question of the plaintiffs’ obligation to enable access to digital devices.

2. In this regard, the defendant proposes to include a mandatory order compelling the plaintiffs to provide “Security Information” (including but not limited to numerical, alphabetical and/or biometric passcodes and/or encryption key) to enable access by the defendant to the contents of the digital devices seized.

3. The defendant relies on the following sources of power for the courts to supplement, review or vary its order:

(1)  the court’s power to supplement and/or vary the order pursuant to the “liberty to apply” provision;
(2)  the court’s power to review pending sealing of the order; and
(3)  the court’s power to vary an order in view of change of circumstances.

4. By the Department of Justice’s second letter to the court dated 11 December 2020, the Department of Justice has confirmed that the defendant would not rely on the “slip rule” for the purpose of the application in this regard.

5. It bears emphasis that the court’s power under the “liberty to apply” provision is limited to doing what is necessary to work out the order already made, and cannot be extended to allow the variation of the order itself: Cristel v Cristel [1951] 2 KB 725 at page 728 per Somervell LJ and at page 731 per Denning LJ (as he then was).

6. There is limited power for a judge to review and revise his orders before they are sealed, but this power is only available in limited circumstances (see Hong Kong Civil Procedure 2021, Practice Note 42/1/19). The court has, on various occasions, emphasised that the power is of an exceptional nature and should only be exercised “judicially” and in the “most exceptional circumstances”.

7. A court of co-ordinate jurisdiction has jurisdiction to vary a previous order to suit a change of circumstances or for the purpose of managing the case and furthering the underlying objectives of the rules of the court but such jurisdiction should be carefully exercised.

8. In the present case, the issue of whether the plaintiffs should be compelled to provide passcodes or other Security Information to enable the defendant to access the Seized Materials has already been argued and decided at the hearing on 19 November 2020 (“19 November Hearing”). It was after consideration of both sides’ arguments that this court decided that the plaintiffs should not be compelled, but should be at liberty, if so advised, to provide passcodes to the defendant for the digital devices seized (see transcript at page 111 and also at pages 108 to 115).

9. I agree with the submissions of the plaintiffs’ counsel that such a drastic “revision” of the order is not permissible under any of the three sources of jurisdiction relied on by the defendant to vary this court’s previous order.

10. First, the proposed revisions cannot fall within the scope of the “liberty to apply” provision. The revision sought by the defendant, which are diametrically opposite to what was decided by this court at the 19 November Hearing, seek to change rather than facilitate the implementation of the order. Such drastic and contradictory revisions cannot be considered necessary for the “working out” of the order.

11. Second, the defendant has not established any exceptional circumstances which would justify an exercise of the limited power to review pending the sealing of an order.

12. Third, the defendant has not attempted to identify any change of circumstances in the affirmations in support of the defendant’s summons. At the hearing today, the defendant now relies on the fact that three of the plaintiffs have, since the 19 November Hearing, been charged with offences of fraud and/or under the National Security Law as the change of circumstances.

13. In my view, the fact that some of the plaintiffs have been charged is not a material change of circumstances. This is not a possibility which the defendant could not reasonably have foreseen at the hearing on 19 November 2020. In any event, not all the plaintiffs have been charged so this ground cannot apply to them.

14. In the premises, I agree with the plaintiffs’ submission that there is simply no jurisdiction for this court to entertain the defendant’s application, which essentially seeks to reopen and re-litigate issues already argued and determined at the 19 November Hearing. The application should therefore be dismissed in limine for want of jurisdiction to hear it.

15. Further, and in any event, there is in my view no statutory power whether under the Police Force Ordinance or the National Security Law or any other ordinance for the police or the court to compel the plaintiffs to provide the Security Information as currently sought by the defendant.

16. There is also no Common Law power for the courts or for the police to compel the plaintiffs to provide such Security Information (see Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529 at paragraphs 35 and 122, per Poon CJHC and Lam and Macrae VPP).

17. And in my view the defendant’s reliance on paragraphs 74 and 75 of Citic Pacific Limited v Secretary for Justice (No 2) [2015] 4 HKLRD 20 is misplaced. There, the court was discussing:

“the proper procedure for handling LPP claims in respect of materials seized upon the execution of a search warrant.”

18. If limited waiver, as discussed by the Court of Appeal on that occasion, was not given, that would possibly lead to the LPP application being refused, but it does not mean that a party could be forced to give the limited waiver in the first place.

19. For the reasons stated above, the defendant’s application in this regard is refused.

	(Wilson Chan)
	Judge of the Court of First Instance
	High Court

Mr Simon Westbrook, SC, leading Ms Cherry Xu, instructed by Messrs Robertsons, for the plaintiffs in HCMP 1217/2020

Mr Philip Dykes, SC, leading Mr Albert N B Wong, instructed by Messrs Robertsons, for the plaintiff in HCMP 1218/2020

Mr Jonathan Kwan and Mr Ivan Suen, instructed by Messrs C & Y Lawyers, for the plaintiff in HCMP 1219/2020

Ms Rosa Lee, instructed by Messrs Robertsons, for the plaintiff in HCMP 1220/2020

Mr Patrick Siu, instructed by Messrs Robertsons, for the plaintiff in HCMP 1221/2020

Mr Kay K W Chan, instructed by Messrs Robertsons, for the plaintiff in HCMP 1222/2020

Mr Jonathan Man, DDPP(Ag), Ms Leona Cheung, PGC(Ag) of the Department of Justice and Mr Michael Lok, instructed by the Department of Justice, for the defendant

LAI CHEE YING v. COMMISSIONER OF POLICE

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