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

Tam Sze Leung And Others v Commissioner Of Police

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date10 April 2024
Neutral Citation[2024] HKCFA 8
Year2023
Subject MatterFinal Appeal (Civil)
Judgement NumberFACV7/2023
CourtCourt of Final Appeal (Hong Kong)
FACV7/2023 TAM SZE LEUNG AND OTHERS v. COMMISSIONER OF POLICE

FACV No. 7 of 2023

[2024] HKCFA 8

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO. 152 OF 2022)

________________________

BETWEEN
TAM SZE LEUNG 1st Applicant
(1st Appellant)
TAM CHUNG WAI 2nd Applicant
(2nd Appellant)
KONG CHAN 3rd Applicant
(3rd Appellant)
LEE KA LO 4th Applicant
(4th Appellant)
and
COMMISSIONER OF POLICE Respondent

________________________

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Collins of Mapesbury NPJ
Date of Hearing: 4 March 2024
Date of Judgment: 10 April 2024

______________________________

JUDGMENT

______________________________

Chief Justice Cheung and Mr Justice Ribeiro PJ:

1. In this appeal, it falls to the Court to consider constitutional and other legal challenges raised against the practice of the Commissioner of Police (“CP”) involving the issue of “Letters of No Consent” (“LNCs”) to banks regarding their dealing with property which is suspected to represent the proceeds of an indictable offence in the context of the Organized and Serious Crimes Ordinance[1] (“OSCO”).

A. The factual background

2. The appellants are members of the same family who had, since 2019, come under suspicion of the Securities and Futures Commission (“SFC”) for having committed (with others) offences[2] involving market manipulation of over 10 different stocks in Hong Kong between September 2018 and November 2020. It was suspected that profits of those unlawful transactions had been transferred to accounts maintained by the appellants with four banks in Hong Kong.[3]

3. After investigation and searches of the appellants’ premises, the SFC referred the matter to the police who took certain actions which were followed by the banks disabling or “freezing” the above-mentioned bank accounts. The steps taken by the police and the banks are set out below. They included the police informing the banks of their suspicion that the funds represented the proceeds of an indictable offence, their issue of LNCs and the banks’ subsequent maintenance of the disablement of the accounts.

4. On 18 February 2021, the appellants applied for leave to seek judicial review of the CP’s decision to issue and maintain the LNCs in respect of the appellants’ bank accounts, and to fail or refuse to consent to the withdrawal of any funds from the accounts (a practice referred to by the appellants as “the No Consent Regime”). The balances were said to amount to some $30 million to $40 million.

5. The appellants were arrested on 4 March 2021 for the offence of money-laundering. They remained silent under caution and refused to answer any questions. They were released on police bail of $100,000 each with no charges laid.

6. On 11 October 2021, the Secretary for Justice obtained a restraint order from the Court of First Instance restraining the appellants from removing from Hong Kong or disposing of, or dealing with, or diminishing the value of, their bank funds.

7. The police wrote to the banks on the next day, 12 October 2021, stating that since the restraint order had been issued, the refusal of consent to deal with funds in the relevant accounts was lifted for the banks’ compliance with that order.

8. The application for leave to seek judicial review was heard by Coleman J[4] who upheld aspects of the appellants’ challenge on ultra vires and constitutional grounds. The Court of Appeal[5] allowed the CP’s appeal, upholding the lawfulness of the police actions concerned.

B. The questions arising on this appeal

9. Leave to appeal was granted by the Court of Appeal[6] on the following questions of law:

(a) Q1: Whether the No Consent Regime operated by the Commissioner and the LNCs issued by the Commissioner in respect of the Applicants’ bank accounts are ultra vires and/or whether the LNCs were issued for an improper purpose. (“The ultra vires/improper purpose question”)

(b) Q2: Whether the No Consent Regime operated by the Commissioner and the LNCs issued by the Commissioner in respect of the Applicants’ bank accounts comply with the constitutional requirements for protection of the fundamental right to property in arts 6 and 105 of the Basic Law, the rights to private and family life in art 14 of the Hong Kong Bill of Rights, and the rights to access to legal advice and to the court in art 35 of the Basic Law and art 10 of the Hong Kong Bill of Rights (“The constitutional challenge”) including in particular:

(i) Whether they fulfil the requirements of being prescribed by law. (“‘The prescribed by law’ question”)

(ii) Whether they are proportionate restrictions on such fundamental rights. (“The proportionality question”)

(c) Q3: Whether the No Consent Regime operated by the Commissioner is and the issue of the LNCs in respect of the Applicants’ bank accounts was procedurally unfair at common law and/or in violation of the right to fair hearing under art 10 of the Hong Kong Bill of Rights in that there was (1) no or no adequate notice of the decision to issue the LNCs, before or after the issue; (2) no or no adequate opportunity to provide meaningful representations as to whether the LNCs should be maintained; (3) no or no adequate reasons given for the decision to issue the LNCs; and (4) no hearing before an independent and impartial tribunal in terms of art. 10. (“The fair hearing question”)

(d) Q4: Whether the case of Interush Ltd v Commissioner of Police[7] was correct in holding that the “consent regime” (as defined in that judgment) is a necessary and proportionate restriction on the right to enjoyment of private property under arts 6 and 105 of the Basic Law. (“The Interush question”)

10. There are doubts as to the scope and intent of the Interush question. In that case, Cheung JA, giving the principal judgment in the Court of Appeal, noted that the applicants were seeking a declaration that sections 25(1) and 25A of OSCO were unconstitutional because they infringed the appellants’ guaranteed property rights under Articles 6 and 105 of the Basic Law (“BL6 and BL105”), as well as their access to court rights under BL35 and BL80 and Article 10 of the Bill of Rights (“BOR10”).[8] It was, as his Lordship put it, a “full frontal constitutional challenge of the empowering statute itself”.[9] We return in Section K of this Judgment to examine the analysis adopted in Interush.

11. When the Court of Appeal below granted leave to challenge the correctness of Interush, one might have thought that the appellants were being permitted to challenge afresh the constitutionality of those OSCO sections. However, Q4 attributes to Interush a holding that the “consent regime” – not the OSCO provisions – was a proportionate and necessary restriction on the guaranteed property rights and grants leave to question the correctness of that holding. In so doing, it reflects the appellants’ Amended Form 86[10] where they reserved the right to contend “that the No Consent Regime [not the OSCO sections] disproportionately interferes with property rights contrary to BL6 and BL105...”

12. A question thus arises as to the exact scope of Q4, and by extension, the scope of this appeal. This uncertainty did not go unnoticed. In its leave judgment,[11] the Court of Appeal stated:

“... the Commissioner has pointed out that although the Applicants wish to challenge Interush, they have not claimed in their Form 86 a declaration, as was sought in Interush, that sections 25 and 25A of OSCO are unconstitutional and invalid. In our view this may have an impact on the precise contours of the argument and the ultimate remedies that are available if the Applicant[s] succeed, but is not a reason for refusing to grant leave altogether. The Court of Final Appeal may itself give directions in that regard to ensure that matters that should be before the Court are properly presented.”

13. The appellants have not sought any such directions and in their Written and Supplemental Cases, as well as in the oral submissions of Counsel, they have not sought to argue that the two sections are themselves unconstitutional.[12] They have confined themselves to challenging the use by the CP of LNCs, involving the so-called “the No Consent Regime”. What then, do the appellants mean by that expression?

14. In passages that come closest to a definition,[13] the appellants explain that under that “Regime” (i) LNCs are not mentioned anywhere in OSCO but are an informal asset freezing mechanism developed by the police; (ii) LNCs are issued with the intention of freezing targeted property; (iii) when issued, they argue, LNCs invariably cause the recipient to refuse to deal with that property for fear of committing an offence under OSCO section 25(1); and (iv) the police are able to reverse the freeze by withdrawing the LNC or giving consent at any time.

15. The attack on the so-called “No Consent Regime” is therefore an attack on the actions taken by the police.[14] The essential allegation is that by such actions, the police froze the appellants’ assets, infringing their protected rights. The appellants argue that this practice is ultra vires, unconstitutional (not “prescribed by law” and disproportionate), involves misuse of a statutory power for improper purposes and deprives the appellants of their rights to private and family life and to a fair hearing. To assess that challenge, it is necessary to place the impugned acts in...

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