K v Commissioner of Police [2020] 1 HKLRD 606

Robert Pang SC (leading Linda Wong and Albert NB Wong) appeared for the applicant in the Court of First Instance in  K v Commissioner of Police [2020] 1 HKLRD 606.

According to the evidence filed, hundreds of protesters were hurling bricks, stones and other objects and discharging slingshots at Tsim Sha Tsui Police Station and the police officers inside. In the midst of all of that, K (who was dressed in black and equipped with a helmet, a pair of goggles and a respirator) was found in Nathan Road having suffered injuries to her right eye. She was admitted to hospital. According to her, she had been “hit by a suspected bean bag round shot by anti-riot police”. The police obtained K’s medical records from the hospital under a search warrant (the Warrant) issued by the Magistrate. With leave, K brought these judicial review proceedings in which she contended, and asked the Court to declare, that the Commissioner of Police’s failure to produce the Warrant had effectively obstructed her constitutional right of access to the courts.

Held, dismissing the application for judicial review, that:

(1) Two questions arose. First, did K have a free-standing right to have the Warrant produced to her on demand? Second, did non-production to her of the Warrant on demand infringe her constitutional right of access to the courts? (See para.33.)

(2) A declaration that K had the free-standing right to have the Warrant produced to her on demand was not only inadvisable but also unnecessary. It was apparently for the purposes of legal proceedings to impugn the Warrant that K sought its production. And in such a context, there were established legal mechanisms for seeking access to the Warrant, such as an application for discovery within or before such proceedings (R v Purdy (Van) [1975] QB 288 distinguished). (See para.44.)

(3) Although a search warrant was applied for ex parte, there were various ways in which the legality of a search warrant could be contested inter partes . The Commissioner did not dispute that the medical records contained personal data in respect of which K had a reasonable expectation of privacy. On the face of things, there was no impediment to K instituting legal proceedings to ventilate her arguments on her right to privacy in respect of the medical records. Nor was there any impediment in fact to such a course. There was nothing to prevent K from applying for judicial review of the Warrant or from instituting other proceedings to impugn the Warrant and seek the return of her medical records. She still sought an injunction to prohibit any further reading, use or distribution of those records; and the Commissioner had given an undertaking to seal them up pending determination of these proceedings. Even if K was denied discovery of the Warrant, that would not be an infringement of her constitutional right of access to the courts. In those circumstances, K had failed to establish that the essence of her constitutional right of access to the courts had in any way been impaired (Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735, Lau Chun Ming v Deloitte Touche Tohmatsu (2016) 19 HKCFAR 448 applied; Re Messrs Ip and Willis for leave to apply for judicial review [1990] 1 HKLR 154, Apple Daily Ltd v Commissioner of the Independent Commission Against Corruption [2000] 1 HKLRD 595, Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 considered; Golder v United Kingdom (A/18) (1979-80) 1 EHRR 524, Camenzind v Switzerland (1999) 28 EHRR 458 distinguished). (See paras.45-63.)

(The above headnote is taken from HKLRD.)

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