Lee Chu Ming, Martin And Others v A Permanent Magistrate, Eastern Magistracy And Another

HCAL 1396/2020

[2020] HKCFI 2028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1396 OF 2020

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J U D G M E N T

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A. Introduction

1. This case raises important questions relating to the necessary balance between (a) protecting the basic rights of the individual and (b) the needs of law enforcement authorities to prevent, detect, investigate and prosecute crime. It arises in the context of judicially issued search warrants permitting search and seizure of information and data stored in mobile digital devices, such as mobile phones, of the sort which are now carried and used by almost every person in Hong Kong.

2. On one side, many would find it difficult to imagine a more intrusive invasion of privacy than the search of a personal computer, including a mobile phone. The scale and variety of the material stored and accessible makes comparison with traditional storage receptacles unrealistic. On the other side, the advent of information technology and the popular use of mobile phones also present new modes for criminal activities to be conducted or evidenced. Hence the need for the balance.

3. With leave granted by Hon Coleman J on 4 July 2020, the Applicants bring these judicial review proceedings to challenge the issue of a total of 8 search warrants dated 26 June 2020 (“Search Warrants”), issued by the 1^st Respondent, a Permanent Magistrate at the Eastern Magistracy (“Magistrate”), on the application of police officers under the command and responsibility of the 2^nd Respondent (“Commissioner”).

4. On 4 July 2020, as extended on 10 July 2020, Hon Coleman J also granted an interim injunction to restrain the Commissioner from executing the Search Warrants, until the determination of the application for judicial review.

5. With the benefit of written skeleton submissions provided by the parties in advance of the hearing, the substantive application for judicial review was heard by two judges on 13 August 2020.

6. The Applicants were represented by Mr Robert Pang SC and Mr Albert NB Wong, of Counsel. The Magistrate takes a neutral stance in these proceedings, and her attendance was excused. The Commissioner was represented by Mr Johnny Mok SC and Mr Mike Lui, of Counsel, and Mr William Liu DLO(C)(Ag) of the Department of Justice.

7. This is our Judgment.

B. Factual Chronology and the Search Warrants

8. The basic factual chronology is not in dispute, and it is only necessary to set it out in brief form. (We can deal later with some of the other factual evidence adduced by the parties.)

9. On 18 April 2020, the Applicants were arrested by officers of the Hong Kong Police Force (“Police”) and charged with incitement knowingly to take part in unauthorized assemblies and/or organising and knowingly taking part in unauthorized assemblies. The Applicants were amongst 15 persons arrested on the same day for connected matters. The charges relate to unauthorized assemblies which took place on 18 August 2019, 1 October 2019 and 20 October 2019 (though not every Applicant faces a charge in respect of every unauthorized assembly). In addition, the 2^nd Applicant was charged for making announcements on 30 September 2019 and 19 October 2019 of two public processions objected to by the Commissioner.

10. The arrests led to prosecution of the Applicants, whose cases were brought before a magistrate on 18 May 2020. On 12 June 2020, transfer bundles were served on the Applicants’ solicitors relating to the transfer of the case to the District Court.

11. It had originally been expected that transfer might have taken place at a Magistrates’ Court hearing on 15 June 2020, but in the circumstances that some of the defendants to the charges indicated they might wish to take further legal advice and possibly challenge the intended transfer, the matter was adjourned. However, subsequently, those defendants confirmed that they would not place any obstacle in place of transfer, which therefore occurred on 15 July 2020.

12. The criminal proceedings came before the District Court for mention on 30 July 2020. A further hearing has been fixed for 18 September 2020, for mention on an issue not relevant to this judicial review.

13. However, subsequent to the service of the transfer papers on the Applicants’ solicitors on 12 June 2020, the Applicants were also served on 26 June 2020 with the Search Warrants in respect of mobile telephone and other electronic devices owned by each of them, and which (with the exception of the mobile phone of the 5^th Applicant, whose device had been seized earlier) had been taken from them and held by the police since the date of arrest, 18 April 2020.

14. The Search Warrants were obtained, as is entirely typical, on the ex parte application of the Police. They were sought and issued under section 50(7) of the Police Force Ordinance Cap 232 (“PFO”). Section 50(7) provides:

(7) Whenever it appears to a magistrate upon the oath of any person that there is reasonable cause to suspect that there is in any building, vessel (not being a ship of war or a ship having the status of a ship of war) or place any newspaper, book or other document, or any portion or extract therefrom, or any other article or chattel which is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that has been committed, or that is reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, such magistrate may by warrant directed to any police officer empower him with such assistants as may be necessary by day or by night—

(a) to enter and if necessary to break into or forcibly enter such building, vessel or place and to search for and take possession of any such newspaper, book or other document or portion of or extract therefrom or any such other article or chattel which may be found therein; and

(b) to detain, during such period as is reasonably required to permit such a search to be carried out, any person who may appear to have such newspaper, book or other document or portion thereof or extract therefrom or other article or chattel in his possession or under his control and who, if not so detained, might prejudice the purpose of the search.

15. The Search Warrants are all dated 26 June 2020, were all issued by the Magistrate, and are in similar terms. Those terms are:

SEARCH WARRANT

IN THE MAGISTRATE’S COURT AT EASTERN MAGISTRACY

HONG KONG

To each and all of the Police Officers of Hong Kong

INFORMATION has this day been laid before the undersigned, a magistrate of Hong Kong, on oath by [Police Officer’s name etc], Hong Kong Police, that there is reasonable cause to suspect that there is in a building or place, namely the following digital device (“Digital Device”): -

Descriptions	Seized from	TEPE No:
[device]	[person]	[number]

certain document(s) or article(s), namely, the digital contents of the Digital Device or any portion thereof or extract therefrom, which are likely to be of value (whether by itself / themselves or together with anything else) to the investigation of the offences, namely, (1) Organizing an Unauthorized Assembly, contrary to Section 17A(3)(b)(i) of the Public Order Ordinance, Cap.245, Laws of Hong Kong and (2) Knowingly Taking Part in an Unauthorized Assembly, contrary to Section 17A(3)(a) of the Public Order Ordinance, Cap.245, Laws of Hong Kong, that have been committed / is reasonably suspected to have been committed / about to be committed / to be intended to be committed*.

You are herewith empowered to enter the said building or place, namely the Digital Device, and to search for and take possession of the said article in any formats, including all digital contents of the Digital Device. Officers executing this search warrant will keep the Digital Device sealed for 7 days from the date of service of this warrant for any aggrieved party to institute legal proceedings to establish their claim of legal professional privilege, otherwise at the expiry of the stipulated time, the Digital Device will be unsealed and examined.

Dated this 26^th day of June 2020

Magistrate

(* delete as appropriate)

16. An application was later made, on 2 July 2020, to the Magistrate for a hearing to be conducted inter partes to set aside or vary the Search Warrants. But, on 3 July 2020, the Magistrate declined to conduct any hearing on the basis that she lacked jurisdiction. She did so without entertaining argument as to whether she had jurisdiction.

17. The Applicants’ applications for leave to apply for judicial review and for interim injunctive relief were made the following day, 4 July 2020.

C. Grounds of Review and Relief Sought

18. Before dealing with other aspects of the factual matters, it is helpful to provide some context by...