Secretary For Justice v Persons Conducting Themselves In Any Of The Acts Prohibited Under Paragraph 1(A), (B), (C) Or (D) Of The Indorsement Of Claim

JurisdictionHong Kong
Judgment Date23 August 2023
Neutral Citation[2023] HKCFI 2148
Subject MatterCivil Action
Judgement NumberHCA855/2023
Year2023
HCA855A/2023 SECRETARY FOR JUSTICE v. PERSONS CONDUCTING THEMSELVES IN ANY OF THE ACTS PROHIBITED UNDER PARAGRAPH 1(a), (b), (c) OR (d) OF THE INDORSEMENT OF CLAIM

HCA 855/2023

[2023] HKCFI 2148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 855 OF 2023

____________________

BETWEEN

SECRETARY FOR JUSTICE Plaintiff
and
PERSONS CONDUCTING THEMSELVES IN
ANY OF THE ACTS PROHIBITED UNDER
PARAGRAPH 1(a), (b), (c) OR (d) OF THE
INDORSEMENT OF CLAIM
Defendants

____________________

Before: Hon Anthony Chan J in Chambers
Date of Written Submissions: 14 August 2023
Date of Decision: 23 August 2023

________________

D E C I S I O N

________________

1. This is the SJ’s Summons filed on 7 August 2023 for leave to appeal against the Decision of this Court dated 28 July 2023 ([2023] HKCFI 1950) by which the SJ’s application for interlocutory injunction was declined. The nomenclature used in the Decision is herein adopted.

2. Given the nature of this application, namely, if leave is granted the issue(s) will be fully ventilated in the Court of Appeal (“CA”) and if not granted, the SJ may renew its application before the CA, this decision should be kept succinct.

3. The test to be satisfied for the present purpose is prescribed by s.14AA(4) of the High Court Ordinance, Cap 4 (“Ordinance”): (a) the appeal has a reasonable prospect of success or (b) there is some other reason in the interests of justice why the appeal should be heard.

4. In the Submissions dated 14 August 2023 lodged by the SJ in support of this application, the interests of justice limb (“2nd Limb”) was given prominence. With the aid of the Submissions, it is appropriate to deal with this application on paper.

5. The draft Notice of Appeal contains 7 grounds of appeal set out in 19 pages. Each but one of the Grounds is elaborated in a number of sub-paragraphs. It is fair to say that little of the Decision is left unchallenged.

6. Further, it is evident from the Grounds that the SJ is seeking to recast much of the arguments made at the hearing on 21 July 2023 (“Hearing”). However, due to the importance of national security, the law on which is of course a new frontier, I am inclined to grant leave where it can be said that the points are matters of law.

7. Before turning to the Grounds, it should be said that the grant of an interlocutory injunction is a matter of discretion of the Court. That was accepted by the SJ at the Hearing (see Decision, [41] and [46]) and in the Submissions. It is trite that there is a high threshold to be satisfied before the CA would overturn an exercise of discretion by the Court below.

Ground 1

8. In respect of Grounds 1, the real point is made in sub-para (2). It appears that the SJ is endeavouring to argue that matters of national security are to be accorded such weight that the scope for judicial discretion on such matters is extremely limited (if it exists). For the reasons alluded to in para 6 above, I take the view that the 2nd Limb is engaged, and I grant leave on this Ground.

Ground 2

9. Ground 2 deals with the test to be applied for interlocutory injunction in aid of criminal law for safeguarding national security. The key point is made in sub-para (2) – unless the Court considers that the Injunction would not have any effect … the balance should be in favour of granting the Injunction.

10. Ground 2 made no mention how the test sits with the fact that it was very unlikely that the Injunction Application would be opposed (Decision, [43]). However, it can be said that it engages matters of law, and for which I grant leave.

Ground 3

11. With respect, it appears that Ground 3 contains a conflation between: (a) the proposition that the 4 Acts constitute crimes against national security; and (b) whether the Court should exercise its jurisdiction to grant the Injunction (Decision, [9]). The former was accepted by this Court even without the Chief Executive certificate (Decision, [45]).

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