Next Digital Ltd v Commissioner of Police [2021] 2 HKLRD 857, [2021] HKCFI 1128

Philip Dykes SC and Albert NB Wong appeared for the successful plaintiff in HCMP 1218/2020 in the Court of First Instance in Next Digital Ltd v Commissioner of Police [2021] 2 HKLRD 857, [2021] HKCFI 1128.


The Commissioner of Police applied for the supplementing, review or variation of an order (made after hearing the parties) so as to include a requirement that Ps provide security information to enable the Commissioner to access the contents of digital devices seized from them by the police.  In so applying, the Commissioner relied on the court’s power to: (i) supplement and/or vary an order pursuant to a “liberty to apply” provision; (ii) review an order pending the sealing thereof; and (iii) vary an order in view of a change of circumstances.  Ps opposed the application.


Held, dismissing the application, that:


(1) Such a drastic revision of the order was not available on any of the bases relied upon by the Commissioner.  First, it did not fall within the scope of the “liberty to apply” provision because it was diametrically opposite to what the Court had earlier decided.  Secondly, the Commissioner had not established any exceptional circumstances which would justify the exercise of the limited power to review an order pending the sealing thereof.  Thirdly, the fact that three of Ps had since the making of the order been charged with offences of fraud and/or under the National Security Law was not a change of circumstances justifying the variation sought since: (i) the charges were not something which the Commissioner could not reasonably have foreseen at the time of the original hearing; and (ii) not all Ps had been charged.  The Commissioner’s application should therefore be dismissed in limine for want of jurisdiction to hear it (Cristel v Cristel [1951] 2 KB 725 applied). (See paras.5, 9–14.)


(2) Further and in any event, there was no statutory or common law power to compel Ps to provide the security information sought by the Commissioner (Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529 applied; Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20 considered). (See paras15–18)


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