J v Commissioner of Police [2021] 5 HKLRD 708, [2021] HKCFI 3586

Robert Pang SC represented the applicant in J v Commissioner of Police [2021] 5 HKLRD 708, [2021] HKCFI 3586

The Commissioner of Police obtained production orders against J and four others (collectively referred to as “Xs”), being trustees of an association. Pursuant to s.3(2) of Sch.7 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, Xs were required to produce all correspondence of the association, financial accounts, particulars of certain donors and donations/subsidies recipients, and any relevant agreements entered with a third party. Xs applied for, inter alia, variation of the production orders seeking redaction of certain *709personal data of donations/subsidies recipients, inviting the Court to reconsider the balance of public interest under s.3(4)(d) of Sch.7. Xs produced the documents in dispute in redacted form to the police, and in unredacted form which was sealed in the presence of the parties’ representatives.

Held, dismissing Xs’ application, that:

• (1) As a matter of principle, the court generally should not entertain an application or invitation to discharge or vary production orders on the ground of relevance or utility under s.3(4)(c)(i) and (d)(i) of Sch.7, when there had already been a decision by the court on those at the ex parte stage. To do so may run the risk of compromising the integrity and effectiveness of the investigation, which was contrary to the statutory intent. Where all the statutory criteria contained in s.3(4) of Sch.7 were satisfied, the discretion of the Court not to order a production order was restricted, bearing in mind the utmost importance of national security, and the justification for refusal had to be strong (R (Bright) v Central Criminal Court [2001] 1 WLR 662, P v Commissioner of ICAC (2007) 10 HKCFAR 293, HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 applied). (See paras.20, 22 – 24, 26.)
• (2) Notwithstanding the above conclusion, in fulfilment of the court’s role as the final safeguard against abuse and oppression, it was permissible for the court to re-conduct the balancing exercise under s.3(4)(d) of Sch.7 when facing an application for discharge or variation. Pending resolution of the application, a good practice was to have the documents in dispute sealed in the presence of the parties’ representatives, as the parties did in the present case. (See para.28.)
• (3) Having re-assessed the requirement of s.3(4)(d) of Sch.7, taking into account the relevant affirmation evidence, the balance of public interest clearly tilted in favour of production and X’s application for redaction had no merit: (See paras.28 – 29, 37.)
  • (i) The fact that Xs might breach their “assurance” of confidentiality given to the donations/subsidies recipients in itself was not sufficient to excuse them from compliance; (See para.30.)
  • (ii) The very nature of a production order would involve the investigating authority seeking information from the parties other than their owners and without their consent; (See para.31.)
  • (iii) The equitable duty of confidence did not extend to bar the disclosure to investigatory/regulatory authorities of the investigation matters (Re A *710 Company’s Application [1989] Ch 477 applied); (See para.32.)
  • (iv) The courts had consistently held that the public interests in having serious crimes detected and prosecuted outweighed a suspect’s right to privacy (HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, P v Commissioner of ICAC (2007) 10 HKCFAR 293, Next Digital Ltd v Commissioner of Police [2021] 5 HKC 411applied); (See para.33.)
  • (v) As the purpose of the investigation was to examine the fund flow and the legitimacy of payments, the personal data in question were plainly relevant; (See para.34.)
  • (vi) There was no basis to worry that the personal data in question, once produced to the police, would be made available to the public. To the contrary, s.4 of Sch.7 contained provisions which restricted dissemination of information obtained by the police under ss.2 and 3 (Junior Police Officers’ Association of Hong Kong Police Force v Electoral Affairs Commission (No 2) [2020] 3 HKLRD 39 distinguished); (See para.35.)
  • (vii) Apart from the “assurance”, Xs had not shown that there would be any difficulties for them to comply with the production orders. (See para.36.)

[The above is excerpted from the headnote to the report in HKLRD.]