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Lai Chee-ying v Commissioner Of Police

Judgment Cited authorities 8 Cited in 1 Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date19 October 2022
Neutral Citation[2022] HKCA 1574
Year2022
Citation[2022] 5 HKLRD 205
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV356/2022
CACV356/2022 LAI CHEE-YING v. COMMISSIONER OF POLICE

CACV 356/2022 and CACV 357/2022

[2022] HKCA 1574

CACV 356/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2022

(ON APPEAL FROM HCMP NO 1218 OF 2020)

________________________

BETWEEN
LAI CHEE-YING Plaintiff
and
COMMISSIONER OF POLICE Defendant

________________________

AND

CACV 357/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 357 OF 2022

(ON APPEAL FROM HCAL NO 738 OF 2022)

________________________

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

________________________

(Heard together)

Before: Hon Poon CJHC, Kwan VP and Chu JA in Court

Date of Hearing: 28 September 2022

Date of Judgment: 19 October 2022

________________________

JUDGMENT

________________________

Hon Poon CJHC (giving the judgment of the Court):

1. The main and indeed only issue arising from these appeals from the judgment of Wilson Chan J dated 30 August 2022[1] is whether on a proper interpretation, “specified evidence” in section 1 of Schedule 1 of the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“IR”)[2] covers journalistic material.

A. The proceedings below

2. Pursuant to a search warrant dated 6 August 2020 (“the 2020 Warrant”) issued under the Police Force Ordinance (“PFO”),[3] the police searched the plaintiff’s residence and seized, among other things, his two iPhones. The 2020 Warrant did not authorize the search and seizure of journalistic material. So on 13 August 2020, the plaintiff commenced HCMP 1218/2020 for directions under the court’s inherent jurisdiction for determining if the seized materials are subject to legal professional privilege or contain journalistic material, and if so, for return of the same to him. By an order of the Judge dated 19 November 2020, varied on 26 February 2021 and 4 August 2022, a protocol was put in place for sealing of the phones and the determination of the plaintiff’s claims for legal professional privilege and journalistic material.[4]

3. On 8 July 2022, as part of the ongoing criminal investigation and based on the latest circumstances and evidence available to the police, they obtained from a designated magistrate a search warrant (“the 2022 Warrant”) under section 2 of Schedule 1. In contrast to the 2020 Warrant, the 2022 Warrant specifically authorizes the search of any parts of the digital contents of the phones seized and their copies, including such digital contents which are subject to claims of journalistic material in HCMP 1218/2020 (“the Digital Contents”). It further provides that the phones and their copies may only be unsealed pursuant to the Judge’s further order. The case of the Commissioner of Police (“the Commissioner”) is that the magistrate had conducted a balancing exercise based on public interest when issuing the 2022 Warrant.

4. By a summons dated 21 July 2022 (“the Summons”), the Commissioner applied for directions that the Digital Contents, which are sealed, including those parts on which claims for journalistic material have been made, but excluding those on which legal professional privilege is claimed, be made available to the police. It would appear that the purpose of the Summons is to give effect to the 2022 Warrant. At the hearing on 5 August 2022, the plaintiff invited the Judge to conduct the balancing exercise afresh while the Commissioner submitted that he could apply either to set aside or judicially review the 2022 Warrant. In the end, the plaintiff commenced HCAL 738/2022 for leave to apply for judicial review against the validity of the 2022 Warrant (“the Leave Application”). The only ground raised by the plaintiff was that as a matter of construction, “specified evidence” as defined in section 1 of Schedule 1 does not cover journalistic material, so that the magistrate did not have the power to issue the 2022 Warrant.

5. The Judge heard both the Leave Application and the Summons at a rolled-up hearing on 22 August 2022. By the judgment, the Judge dismissed the Leave Application. After rejecting the plaintiff’s construction of “specified evidence” as wholly untenable, the Judge held that his intended judicial review is bound to fail. The Judge allowed the Summons, noting that the directions sought are simply to give effect to the 2022 Warrant. After hearing the parties, he granted an interim stay of his order until 6 September 2022, giving the plaintiff time to apply for urgent appeal to the Court of Appeal, which he subsequently did.

6. Pursuant to the order of this Court dated 5 September 2022,[5] we fixed the hearing on 28 September 2022 with an interim stay pending the outcome of the appeals. We did so with HCCC 51/2022 in mind. On 1 December 2022, the plaintiff, together with other defendants, will stand trial in those criminal proceedings of the offence of conspiracy to print, publish, sell, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance,[6] and the offences of conspiracy to commit collusion with a foreign country or with external elements to endanger national security, contrary to article 29(4) of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). We expedited the hearing because depending on the outcome, the journalistic material in the Digital Contents might be available to the police, which in turn might potentially have an impact on the conduct of the trial in HCCC 51/2022.

B. The parties’ contentions in a nutshell

7. The term “specified evidence” is defined in section 1 of Schedule 1 to mean:

“anything that is or contains, or that is likely to be or contain, evidence of an offence endangering national security.”

8. Before us, as was before the Judge, the plaintiff contended that journalistic material is essential to the freedom of expression and the freedom of the press as guaranteed under the Basic Law and the Hong Kong Bill of Rights. There are procedural safeguards provided for in Part XII of the Interpretation and General Clauses Ordinance (“IGCO”)[7] to protect journalistic material from search and seizure based on public interest. When Schedule 1 was drafted, the principle that search and seizure of journalistic material must be protected by those procedures had already been firmly entrenched in our law. In order to interfere with the freedom of the press and/or deviate from those procedural safeguards, there must be express language or necessary implication. If there is no intention to deviate from that principle, then “specified evidence” in section 1 cannot be construed to include journalistic material from its definition. Access to journalistic material would be left to the process in Part XII of the IGCO.

9. The Commissioner countered by submitting that there is no reason not to give the words defining “specified evidence” their natural and ordinary meaning, which clearly cover journalistic material. Further, Part XII of the IGCO is not the only lawful regime to protect journalistic material from search. Under section 2 of Schedule 1, the magistrate may issue a warrant. The legislative intention is that in exercising his jurisdiction to issue a warrant, the magistrate has to conduct a balancing exercise based on public interest as required under the common law. The interpretation advocated by the plaintiff is therefore based on a false premise and cannot stand.

C. Construction of “specified evidence”

10. Schedule 1 of the IR relevantly provides:

“1. Interpretation

In this Schedule –

…

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.

2. Magistrate’s warrants

(1) A police officer may, for investigation of an offence endangering national security, apply to a magistrate by information on oath for a warrant under this section in relation to the place specified in the information.

(2) A magistrate may issue a warrant authorizing a police officer with such assistance 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.

(3) A warrant issued under subsection (2) authorizes the policer officer to –

…

(b) inspect, examine, search, seize, remove and detain anything in the place that the officer reasonably believes to be specified evidence; and

…”

C1. General approach of construction

11. Within the framework of the NSL, the IR are delegated legislation made pursuant to the authorization under NSL 43(3), which provides:

“The Chief Executive shall be authorized, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make relevant implementation rules for the purpose of applying the measures under [NSL 43(1)].”

The IR contain seven schedules corresponding to and augmenting each of the measures listed in the seven subparagraphs of NSL 43(1).

12. As a general rule, delegated legislation is interpreted in the same way as the primary legislation, with the additional consideration that since delegated legislation derives its authority from the enabling legislation, it must be interpreted in light of the latter: see Bennion, Bailey and Norbury on Statutory Interpretation, Eighth Edition, §3.17, at p 114. Applying the general rule, the approach of construction for the NSL as expounded by...

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  • Lai Chee-ying v Commissioner Of Police
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 19 October 2022
    ...LAI CHEE-YING v. COMMISSIONER OF POLICE CACV 356/2022 and CACV 357/2022 [2022] HKCA 1574 CACV 356/2022 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 356 OF 2022 (ON APPEAL FROM HCMP NO 1218 OF 2020) ________________________ BETWEEN LAI CHEE......

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