Read the full judgment text of CACV 97/2015 and CACV 107/2015 on BabelCite. This Court of Appeal judgment was delivered on 22 April 2016 before Lam VP, Kwan JA and Harris J.
Constitutional and administrative law – search and seizure – judicial review – joint cross-border investigation into smuggling – execution of search warrants – constitutionality of warrantless search of non-domestic premises – remedial interpretation – lapse of unexecuted warrants – improper purpose – cross-border information sharing – whether section 21(1)(a) of the Import and Export Ordinance (Cap 60) is unconstitutional – joint operation between Hong Kong Customs and Excise and the Huangpu Customs of the PRC into suspected smuggling by the Keen Lloyd group – 16 search warrants issued under the Organised and Serious Crimes Ordinance (Cap 455) and the IEO – 13 warrants executed two to four months after issue when covert operations turned overt – copies of seized documents and cloned hard disks provided to the Mainland Customs under a Customs Cooperative Arrangement – whether section 21(1)(a) IEO is inconsistent with Article 29 of the Basic Law and Article 14 of the Hong Kong Bill of Rights – proportionality test – whether the court should apply remedial interpretation rather than strike down the provision – whether the delay in executing 13 warrants rendered the warrants lapsed – whether the warrants were sought for the improper purpose of assisting the Mainland investigation – whether the decision to provide copies of seized materials to the Mainland Customs was unlawful as it served impermissible purposes – the court upheld the judge's finding that section 21(1)(a) IEO is unconstitutional and manifestly disproportionate, but allowed the appeal in CACV 107/2015 by adopting a remedial interpretation expanding 'domestic premises' in section 22 to mean 'premises or place' so that the section 22 regime applies to all premises – the court upheld the judge's ruling that 13 warrants had lapsed because they were not executed within a reasonable time of issue and the law enforcement agency should have returned to the judicial officer for extension – the court dismissed the cross-appeal, holding that the applicants failed to establish that the warrants were applied for the primary or dominant purpose of assisting the Mainland Customs – the court reversed the judge's ruling on the information provision issue, holding that the dominant purpose of providing copies to the Mainland Customs was to further C&E's own investigation, as the furtherance of the Mainland investigation was intended to further and did further the Hong Kong side of the joint investigation – declarations (1) and (4) set aside; declarations (2), (3) and (5) to stand – costs reserved for submissions.
Legal issues: Constitutionality of warrantless search of non-domestic premises under section 21(1)(a) IEO · Remedial interpretation of section 21(1)(a) IEO · Lapse of search warrants due to delay in execution · Improper purpose in applying for search warrants (cross-appeal) · Lawfulness of providing copies of seized materials to Mainland Customs
Outcome: Appeal in CACV 107/2015 allowed (remedial interpretation granted for section 21(1)(a) IEO). Cross-appeal in CACV 97/2015 dismissed. Declarations (1) and (4) granted by the judge on 23 December 2014 set aside. Declarations (2) and (3) (on the time limit issue) shall stand. Declaration (5) shall stand. Costs to be determined on submissions.
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