Cheng Yiu Tong (鄭耀棠) v Commissioner of Police [2026] 2 HKC 754; [2026] HKCFI 227 (Albert N B Wong, Jason Szeto)
Albert N. B. Wong and Jason Szeto represented the applicant in Cheng Yiu Tong (鄭耀棠) v Commissioner of Police [2026] 2 HKC 754; [2026] HKCFI 227.
The Commissioner of Police had withheld consent in relation to the applicant’s bank accounts, and refused to consider the issue of a letter of consent to the relevant banks. The relevant Letters of No Consent (LNCs) were in effect for over 10 years. They lasted until the Secretary for Justice obtained a restraint order against the applicant’s assets. The police’s Force Procedures Manual (FPM) provided inter alia that the LNC should normally last no more than six months from the date of issue; only in case of exceptional circumstances would it continue beyond the six-month period, which would require the Formation Commander to review the case and considerations critically. The applicant applied for judicial review against the Commissioner’s decisions to withhold consent. The Commissioner’s case was that the complexity and the time necessary for the investigation involving the applicant led to exceptional circumstances which justified the duration of the LNCs. It was said that there was a cross-border investigation in which the applicant was suspected of heading a drug trafficking syndicate involved in money laundering and the smuggling of dangerous drugs from Mainland China to Hong Kong. The suspected criminal proceeds amounted to almost $148 million, channelled through over 20 banks and accounts held by suspects including the applicant. The applicant’s accounts involved about $35.62 million. The police had to incur considerable time, manpower and resources in order to conduct proper and thorough investigation on an ‘extraordinary scale’. Despite the extremely lengthy period involved after the issue of the LNCs, monthly reviews had been carried out in accordance with the FPM. The applicant’s grounds for judicial review included (i) disproportionality; (ii) that the Commissioner had breached his own policy to ensure that the issue of LNCs and the use of the No Consent regime was necessary, proportionate and reasonable; (iii) that the Commissioner frustrated the purpose of his statutory powers; (iv) that the respondent fettered his own discretion; and (v) procedural unfairness. The Commissioner respondent opposed the above grounds, adding that given a restraint order had already been obtained, the present proceedings had become academic. The Court of First Instance remarked that the applicant’s challenge raised issues of real public importance in respect of the LNC regime with potential application to any bank account held in Hong Kong by any person or corporation and that previous cases, such as Interush Ltd v Commissioner of Police [2019] 4 HKC 196, [2019] 1 HKLRD 892, [2019] HKCA 70 and Tam Sze Leung & Ors v Commissioner of Police (No 3) [2024] 4 HKC 437, (2024) 27 HKCFAR 288, [2024] HKCFA 8, had different underlying factual circumstances.
Held, dismissing the application for judicial review, that:
(1) The LNCs in the present case had been maintained for 10 years, well beyond the standard 6 months. If there was merit in the intended challenge, appropriate relief could be provided in the form of declarations. Chit Fai Motors v Commissioner for Transport [2004] 1 HKC 465, (2004) 10 HKPLR 888 considered (paras 38-44).
(2) In the present case, an attempt was made at balancing the pursuit of the societal interest, ie the prevention of crime by the police and the intention to prevent the use of the proceeds of crime, with the burden on the individual involved. The LNCs were issued in support of an investigation into the applicant. Monthly reviews were conducted in accordance with the guidelines in the FPM, which would and did inherently involve a balancing of the ‘exceptional circumstances’ that justified the extension of the LNCs with the burden on the applicant being unable to access his funds in the frozen accounts. The relevant police investigations were extremely complex and on the identified ‘extraordinary scale’. If the correct test was that an LNC may be extended as long as there appeared to be justification in the exceptional circumstances for continued extensions, then there seemed to have been genuine justification in the present case, notwithstanding the passage of a length of time which in a vacuum might otherwise be thought to have become unjustifiable. Further, even if the applicant were successful on this ground, it would not logically lead to the declaratory relief sought. Tam Sze Leung v Commissioner of Police (No 3) [2024] 4 HKC 437, (2024) 27 HKCFAR 288, [2024] HKCFA 8 followed (paras 92-101).
(3) It was not found that the Commissioner respondent acted in bad faith or in breach of the policy identified in the FPM. This was not a situation where the LNCs were maintained despite the investigation being completed, thus justifying the grant of a restraint order. This was a lengthy and complicated case involving elements of drug trafficking and money laundering. Whilst there were legitimate concerns about the length of time during which the LNCs were maintained, there was no basis in the evidence to suggest any delay by the investigator or the prosecutor. There was no evidence of actual hardship suffered as a result of the LNCs either. The respondent had not breached his policy to ensure the issue of LNCs to be ‘necessary, proportionate and reasonable’. Tam Sze Leung v Commissioner of Police [2023] 3 HKC 587, [2023] 2 HKLRD 839, [2023] HKCA 537 (CA); Interush Ltd v Commissioner of Police [2019] 4 HKC 196, [2019] 1 HKLRD 892, [2019] HKCA 70; and Secretary for Justice v Johnson Cynthia [2016] HKCU 1830, (HCMP 1789/2016, Zervos J, 4 August 2016, unreported) considered (paras 102-113).
(4) It was wrong to characterize the act of issuing an LNC as freezing the account. It was the bank who, exercising its own judgment but not acting as an agent of the police, disabled and froze the account when it decided that the suspicion was not dispelled. The issuance of an LNC fell under the powers to take lawful measures for preventing and detecting crimes and offences, and for preventing injury to lift and property. Therefore, the decision was not ultra vires. Tam Sze Leung (CFA) (above) considered (paras 114-123).
(5) The respondent had decided there was a need to maintain No Consent in the circumstances that were continuously evolving in the investigation of the applicant over the course of 10 years. He did not fetter his discretion. Interush (above) and Tam Sze Leung (CFA) (above) considered (paras 124-136).
(6) The respondent’s failure to give reasons for issuing the LNCs and failure to disclose anything relating to the investigation did not constitute procedural unfairness. Tam Sze Leung v Commissioner of Police [2022] 2 HKC 98, [2022] 1 HKLRD 480, [2021] HKCFI 3118 (CFI) followed (paras 137-141).
(7) Although there was clearly strong argument in the circumstances of this case in relation to at least the ground of disproportionality, which overlapped with at least the ground of breach of policy, the application for judicial review should be dismissed. Even if any ground of review had been made out, the primary declaratory relief sought would not be granted (paras 147-148).
Obiter
(8) The reference of the Court of Final Appeal in Tam Sze Leung to the LNC being ‘a temporary and provisional expedient with an initial six-month limit to its duration (with a possible extension for a further six months if that can be justified)’ must be mistaken. The error may have arisen from confusion with the making of a restraint order which did have an initial six-month limit with a possible extension of a maximum further six months. However, on the statutory terms of s 25A of the Organized and Serious Crimes Ordinance (Cap 455) the giving of ‘No Consent’ had no express temporal limit. Nor was there any upper limit imposed in the FPM. Neither did previous cases supported that there was an upper limit. However, on such basis, the Court of Final Appeal found that the regime as a whole was proportionate because it was only a temporary measure, of a ‘limited and finite duration’. It was therefore doubtful if the Court of Final Appeal proceeded on the correct basis when considering proportionality of the regime. Secretary for Justice v Johnson Cynthia (above) considered. Tam Sze Leung (CFA) (above) distinguished (paras 63-69, 82).
(9) There was more than a significant doubt as to whether the drafter of s 25A and the legislature could ever have conceived that an LNC might be in place for a period for over 10 years before an application was made for a restraint order. It was particularly difficult to think that anyone might have conceived that an LNC, a professed ‘temporary and provisional expedient’, might be in place not just for a period more than twice as long as the ordinary maximum period under the FPM, but for a period significantly longer (in multiples) than the maximum period even for a restraint order, which as subject to the kind of court supervision absent from the LNC regime. Tam Sze Leung (CFA) (above) considered (para 96).
[The above is excerpted from the headnote to the report in HKC.]
