Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Next Digital Ltd And Others v Commissioner Of Police

Judgment Cited authorities 36 Cited in Precedent Map Related
Vincent
Judgment Date10 June 2021
Neutral Citation[2021] HKCFI 1677
Year2021
Judgement NumberHCMP1217/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP1217A/2020 NEXT DIGITAL LTD AND OTHERS v. COMMISSIONER OF POLICE

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 1st Plaintiff
(壹傳媒有限公司)
APPLE DAILY 2nd Plaintiff
CHARITABLE FOUNDATION
(蘋果日報慈善基金)
APPLE DAILY LTD 3rd Plaintiff
(蘋果日報有限公司)
NEXT MEDIA MANAGEMENT 4th 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 AND OVERVIEW

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-(1st) 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: (2nd) §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: 2nd paragraph; §§1C & 1D

(b) HCMP 1218: 2nd paragraph; §§1O & 1P

(c) HCMP 1221: 2nd paragraph; §§1C & 1D

(d) HCMP 1222: 2nd paragraph; §§1C & 1D

(e) HCMP 1239: 2nd paragraph; §§1F & 1G

(f) HCMP 1240: 2nd paragraph; (2nd) §1C & (2nd) §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. Lawfulness Challenge

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT