Interush Ltd and Another v. The Commissioner of Police and Others
Read the full judgment text of CACV 230/2015 on BabelCite. This Court of Appeal judgment was delivered on 17 January 2019 before Cheung JA, Yuen JA, G Lam J.
Constitutional law – property rights – access to court – Organized and Serious Crimes Ordinance (Cap 455) ss 25, 25A – consent regime – 'Letter of No Consent' – whether engaging Articles 6 and 105 of the Basic Law – whether 'prescribed by law' – proportionality – manifestly without reasonable foundation standard – margin of discretion – alleged pyramid scheme – informal freezing of bank accounts – chose in action – chilling effect – systemic and fact-specific challenges – judicial review – appeal from HCAL 167/2014. The applicants, Interush Limited and Interush (Singapore) Pte Limited, operated an alleged pyramid scheme under the Pyramid Schemes Prohibition Ordinance (Cap 617) through which members paid fees and could earn bonuses. Following newspaper coverage in November 2013, the Police and Customs & Excise investigated and issued 'Letters of No Consent' to HSB and BEA, preventing dealings with the applicants' accounts. The applicants applied for judicial review seeking declarations that sections 25(1) and 25A of the Organized and Serious Crimes Ordinance ('OSCO') are unconstitutional for being inconsistent with the protected property rights under Articles 6 and 105 of the Basic Law and access to court rights under Articles 35 and 80 of the Basic Law and Article 10 of the Hong Kong Bill of Rights. Patrick Li J refused the judicial review, holding that property rights were not engaged because the 'no consent' letter did not itself freeze the accounts and the freezing effect was caused by banks acting on their own initiative. Held, dismissing the appeal: (1) Property rights are engaged. Although the 'Letter of No Consent' does not by itself freeze the accounts, the practical impact of the criminal law on banks 'informally freezes' the accounts, affecting the applicants' use of money held in the form of a chose in action (following The Chief Officer, Customs & Excise v Garnet Investments Ltd). The 'assumption of risk' argument was rejected as contrary to Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372. (2) The applicants were not entitled to raise the 'prescribed by law' argument for the first time on appeal, as it was not raised in the Form 86, before the Judge, or in the Notice of Appeal. (3) Applying the four-step proportionality test from Hysan and the 'manifestly without reasonable foundation' standard, the consent regime was proportionate and justified. The absence of express time limits did not render it disproportionate, as there is an implied duty on public bodies to act reasonably, and reasonableness is not measured by reading in time limits. The restraint order regime and overseas jurisdictions were not appropriate comparators, given the margin of discretion owed to the legislature and executive. (4) The fact-specific Wednesbury unreasonableness challenge failed; the delay in applying for a restraint order was justified by the cross-border complexity of the case. (5) The right of access to court under Article 35 of the Basic Law and Article 10 of the Hong Kong Bill of Rights was not engaged, as the applicants retained judicial review and civil claim remedies. The respondents' application to adduce new evidence was refused as it was exceptional to introduce new evidence in an appeal from judicial review. Costs awarded to the respondents save for costs relating to the application for new evidence, which were to be borne by the respondents. Certificate for two counsel granted.
Legal issues: Engagement of property rights by consent regime under OSCO ss 25/25A · Whether the consent regime is 'prescribed by law' · Proportionality of the consent regime under OSCO ss 25/25A · Fact-specific Wednesbury unreasonableness challenge · Engagement of access to court rights
Outcome: Appeal dismissed; respondents' application to adduce new evidence refused.
Cited by 13 cases · Cites 15 cases
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CACV 230/2015 [2019] HKCA 70 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 230 OF 2015 (ON APPEAL FROM HCAL NO. 167 OF 2014) ________________________
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________________________ J U D G M E N T ________________________ Hon Cheung JA : I. Appeal from judicial review 1.1The applicants applied by way of judicial review for a declaration that sections 25(1) and 25A of the Organized and Serious Crimes Ordinance (‘OSCO’) (Cap. 455) are unconstitutional for being inconsistent with the protected property rights under Articles 6 and 105 of the Basic Law, access to court rights under Articles 35 and 80 of the Basic Law and Article 10 of the Hong Kong Bill of Rights. They also asked for, among other things, a declaration that the following decisions were null and void and of no legal effect : 1) The 3rd respondent’s decision (made on behalf of the 1st respondent (‘Police’) and 2nd respondent (‘Customs & Excise) not to give consent to Hang Seng Bank, Limited (‘HSB’) to deal with funds in the 1st and 2nd applicants’ accounts with HSB made on 6 November 2013 (the ‘No Consent Decision’). 2) The Commercial Crime Bureau of the Police (‘CCB’)’s continuing decision (made on behalf of the Police and Customs & Excise) to maintain the No Consent Decision (the ‘Continuing No Consent Decision’); and 3) The Joint Financial Intelligence Unit’s (‘JFIU’) and the CCB’s decisions, if any (made on behalf of the Police and Customs & Excise), to withhold consent from HSB and the Bank of East Asia, Limited (‘BEA’) to deal with funds in the 1st and 2nd applicants’ HSB accounts and the 1st applicant’s Merchant Service account with the BEA (the ‘BEA account’). 1.2Patrick Li J refused the judicial review. The applicants now appeal. II. Background 2.1The background of this case has been summarised by the Judge in paragraphs 4 to 14 of his judgment as follows. 2.2On 1 November 2013, alerted by newspaper coverage, officers of CCB started an investigation into the 1st applicant for promoting an alleged pyramid scheme (‘the pyramid scheme’) contrary to Pyramid Schemes Prohibition Ordinance, Cap. 617 (‘PSPO’). 2.3The main features of the scheme were the following : 1) The 1st applicant offered cloud based Internet services at a monthly charge of $800. 2) There was an initial membership fee of $390. 3) If a member subscribed to three sets of identical services at $2,400 per month and recruited new members, he might be entitled to monthly bonus up to $234,000. 4) The 1st applicant would pay dividend to members when it was publicly listed in Hong Kong. 2.4On the same day, BEA suspended the account of the 1st applicant as their investigation since June 2013 revealed that the account might be used in connection with illegal activities. 2.5On 4 November 2013, further investigation by CCB revealed that a large number of individuals in Mainland China had been arranged to come to Hong Kong and had attended the office of the 1st applicant for registration. According to some individuals interviewed by CCB officers, they only joined the scheme with a view to earning the bonus. They had no knowledge of the underlying services. 2.6On the same day, HSB had suspicion about the accounts of the 1st and 2nd applicants. HSB filed a ‘Suspicious Transaction Report’ (‘STR’), to the JFIU. 2.7On 6 November 2013, CCB officers searched the office of the 1st applicant and found about 50,000 completed registration forms. Five members of the senior management of the 1st applicant were arrested for the offence of ‘Promoting a pyramid scheme’. 2.8In the meantime, the JFIU issued a ‘no consent’ letter to HSB covering the accounts of the 1st and 2nd applicants. 2.9Two days after the search, the Chief Executive Officer of both applicants, Mr MJ Matthews, surrendered to the Police. He was also arrested for the same offence. 2.10On 6 February 2014, Mr MJ Matthews was further interviewed and cautioned for the offence of ‘Dealing with property representing proceeds of an indictable offence’. 2.11Financial analysis revealed that between 2012 and 2013, there were 2,040 deposits totalling HK$680 million and 1,926 withdrawals totalling HK$497 million through the accounts of the 1st applicant held in HSB. The majority of the sources and destinations of these transactions were outside Hong Kong. 2.12On9April2015, a restraint order was granted against the accounts of both applicants in HSB and Bank of America. 2.13The Judge elaborated on the suspension of the BEA and HSB accounts as follows :
2.14The Judge also referred to the evidence produced by the Police that there were about 49,000 applicants for membership of the scheme. They were from different provinces of China. The main ones were Guangdong, Guangxi and Zhejiang. 2.15The Judge also recorded that Mr MJ Matthews was formally charged with ‘Conspiracy to deal with property knownor believed to represent proceeds of indictable offence’ contrary to section 25(1) on 31 March 2015. It is common ground that he was acquitted on 31 May 2017 after trial. 2.16The applicants had on 7 July 2014 commenced civil proceedings against HSB and BEA in HCMP 1626/2014. The proceedings are currently stayed by the parties’ own agreement pending the outcome of this appeal. III. The Statutory Regime 1) Organized and Serious Crimes Ordinance 3.1.Section 25(1) of OSCO creates the offence of dealing with property known or believed to represent proceeds of crime, commonly known as the ‘money laundering’ offence :
3.2Section 25A(1) and (7) creates an offence where a person fails to disclose suspicious transactions relating to property known or believed to represent proceeds of crime. Section 25A(2)(a) provides a defence for that person to continue dealing with those proceeds when an authorised officer has given his consent (‘the consent regime’) :
3.3Section 15 of OSCO empowers the Court of First Instance to impose a restraint order on application by the prosecutor prohibiting any person from dealing with any realisable property. 3.4Section 29 of OSCO deals with compensation. It provides, among other things, that if an investigation is begun against a person for a specified offence and proceedings are instituted against him but do not result in his conviction, the Court of First Instance may, on application by a person who held realisable property, order compensation to be made by the Government to the applicant.
2) Force Procedures Manual 3.5The persons that are most likely to have knowledge or suspicion of transactions relating to suspected proceeds of crime and to seek consent from the authority to deal with their customers’ instructions are financial institutions, such as banks. In order to implement the consent regime, the Police has published an internal manualForce Procedures Manual (the ‘Manual’), the relevant part of which is Chapter 27‑19. 3.6Paragraph 5(d) of that chapter of the Manual deals with the considerations in deciding whether to issue the ‘letter of no consent’ :
3.7The manual also deals with the actions to be taken after the ‘letter of no consent’ has been issued :
IV. Constitutional rights 4.1The rights that are said to have been infringed in the constitutional challenge are property rights (under Articles 6 and 105 of the Basic Law) and access to court rights (under Articles 35 and 80 of the Basic Law and Article 10 of the Hong Kong Bill of Rights). 4.2As apparent from the stand taken by the applicants before us (represented by Mr Abraham Chan SC and Mr Joshua Chan) the focus of the appeal is on the property rights.
V. The Judge’s decision 1) Property rights (1) Systemic challenge 5.1The Judge summarised the applicants’ case on the infringement of property rights as follows :
5.2The applicants described this as the systemic challenge. 5.3The Judge first held that in relation to section 25, Articles 6 and 105 are not engaged. He held that :
5.4In respect of section 25A, the Judge held that :
5.5The Judge referred to The Chief Officer, Customs & Excise, Immigration & Nationality Service v Garnet Investments Ltd. (unreported Guernsey Judgment 19/2011, 6 July 2011) and he held that :
5.6The Judge also addressed the applicants’ argument that section 25 does not stipulate any time limit for the no consent regime :
5.7In respect of the argument on compensation, the Judge held that section 29 of OSCO enables an applicant to apply for compensation provided the conditions are met. 5.8Because of the Judge’s view that the property rights were not engaged, he held that it was not necessary for him to consider the other aspects of the constitutional challenge, such as proportionality. (2) Fact-specific challenge 5.9Apart from the systemic challenge the applicants also rely on the fact‑specific challenge. The Judge summarised the argument as follows :
5.10The Judge also rejected this argument. He referred to the evidence produced by the Police :
5.11The Judge then held :
2) Access to Court 5.12In respect of right of access to Court, the Judge held that the applicants can commence civil claims against the two banks to recover the money in their accounts and the applicants can also commence judicial review against the decision of the Police in granting the ‘Letter of No Consent’. The Judge held that the right of access to Court is not engaged. VI. The present appeal 1) Property rights: A) The systemic challenge (1) ARE PROPERTY RIGHTS ENGAGED? 6.1The first issue is whether the constitutional right to property is engaged. (I) THE APPLICANTS’ ARGUMENTS 6.2Mr Chan submitted that the Judge was wrong to hold property rights are not engaged. He submitted the Judge erred in holding that the withholding of consent under section 25A(2)(a) does not operate to freeze funds because (i) it is the substantive offence under OSCO section 25(1) which deters banks from dealing with the funds, and (ii) proof of the offence under section 25(1) does not depend on the issuance of a ‘no consent letter’: Judgment paragraphs 25‑35. This reasoning wrongly focused on the formal, when it is the overall substantive effect of the withholding decision and its practical impact upon the bank – the ‘chilling effect’ – that matters. The Judge further erred in holding that the ‘no consent’ letters do not operate to freeze funds because banks and like institutions refuse customer instructions ‘on their own initiative’: Judgment paragraphs 49‑50. This again ignored both the practical realities on the ground and the principle that, even where interference may depend in part on the voluntary acts of third parties, fundamental rights are still engaged if the public authority in effect encouraged or materially increased the likelihood of such acts. Further, contrary to paragraph 50 of the judgment, the legal threshold is not whether ‘no consent’ is an absolute ‘prerequisite’ for a bank’s account freezing decision but whether it may materially influence that decision. The Judge misread paragraphs 53‑55 of the judgment in Garnet by attributing to it a significance essentially opposite to the true position. The Guernsey Court of Appeal recognised that the chilling effect of potential criminal liability under the no‑consent regime would prevent banks from dealing with the funds: [29-31], [42]. It expressly held that the right to property under Article 1 Protocol 1 of the European Convention of Human Rights (‘ECHR’) was engaged: [94‑100]. 6.3Mr Chan had extracted from the cases four relevant factors in assessing whether the constitutional rights are engaged. These factors are not challenged by the respondents : (1) The Court is concerned with substance, not form. It must ‘look behind the appearances and investigate the realities of the situation complained of’: Sporrong and Lonroth v Sweden (1983) 5 EHRR 35, [63]; Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170, [51]. (2) A statutory provision’s effect should not be viewed in isolation but in light of its interaction with other parts of the statute: A v ICAC (2012) 15 HKCFAR 362, [37‑48], HKSAR v Ng Po On (2008) 11 HKCFAR 91, [48]. The Court considers how relevant provisions operate in tandem or lockstep and the net effective ‘burden on the [constitutional] right’: Official Receiver & Trustee in Bankruptcy of Chan Wing Hing v Chan Wing Hing (2006) 9 HKCFAR 545, [37‑39]. (3) Where a provision’s precise scope is uncertain, individuals may in reality be deterred from acting within their strict rights even if ‑ on a detailed forensic and legal analysis - the conduct falls outside its scope. Constitutional review being concerned with practical effects, this ‘chilling effect’ should be taken into account: see e.g. Stunt v Associated Newspapers Ltd [2017] 1 WLR 3985, [54], Mosley v United Kingdom (2011) 53 EHRR 30, [116], [125-132]. (4) Human rights protections may still be engaged where interference involves private third party acts. For example, public authorities are required to protect individuals from third party acts which interfere with fundamental rights such as free expression: Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, [22-24], Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, [14‑16]. At the least, public authorities are under a duty not to instruct, assist, encourage or threaten third parties to engage in acts amounting to interference with fundamental rights if carried out directly by the authority itself. That the third party took the initiative in its act is no defence. To hold otherwise ‘would be tantamount to allowing [public] authorities to evade their [constitutional] responsibilities ... by the use of private agents’: MM v Netherlands (2004) 39 EHRR 19, [36-41], Van Vondel v Netherlands (2009) 48 EHRR 12, [45-49], The Law of Human Rights (2nd ed), [12.242]. (ii) My view on engagement 6.4I am happy to adopt the four factors advanced by Mr Chan in paragraph 6.3 above. 6.5In my view, section 25 whether by itself or in combination with section 25A does not engage the property rights. Section 25 merely sets out the creation of the offence of dealing with property known or believed to be the proceeds of an indictable offence. By no stretch of the imagination can this section be held to have an effect on the property rights of the applicants. However, section 25A is a different story. In coming to this view I respectfully adopt the analysis in Garnet. (1) Garnet 6.6The Court of Appeal of Guernsey was dealing with an appeal in which the first instance judge granted an application made on behalf of Garnet Investments Limited (‘Garnet’) for judicial review of a decision of the Financial Intelligence Service (‘FIS’) which refused to consent to instructions given by Garnet in relation to its bank accounts held with BNP, Guernsey, under subsection 39(3) of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999 as modified in accordance with the provisions of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Enforcement of Overseas Confiscation Orders) Ordinance, 1999, section 1(2), Schedule 2, paragraph 16, with effect from 1st January, 2000 (‘the Guernsey Proceeds of Crime Law’). 6.7The wording of the relevant sections of the Guernsey law is quite similar to our OSCO dealing with the offence of money laundering and the no consent regime. For ease of reference, I set out the relevant Guernsey provisions :
6.8The important difference with our law is that Guernsey legislation does not have the general offence of failing to disclose possible money laundering. The Guernsey Court of Appeal (per Montgomery JA) first identified the purpose of the consent regime :
6.9She then held that :
6.10Montgomery JA commented that while the decided cases showed the courts have used the term ‘informal freeze’.
6.11She held that the freezing power is granted by, for example, a restraint order rather than by the consent regime :
6.12Montgomery JA went on to consider whether the consent regime was in breach of Article 1 of the first Protocol of the European Convention of Human Rights (‘the Convention’), as applied in Guernsey. 6.13Article 1 of the first Protocol provides :
6.14She held that Article 1 was engaged. She first considered that the term ‘possession’ is not limited to tangible assets but to include any right which has an economic value. She held that the money standing to the credit of a customer in the bank has an economic value :
6.15Montgomery JA went on to hold that there was no deprivation of the possession :
6.16But she went on to hold that :
6.17On that basis, she held that the question of proportionality arises and having considered the situation of Guernsey, she came to the view that the present case does not
(2) The present case 6.18The wording of Article 1 of the Convention is different from our Article 105, but the overall intention is the same, namely, the protection of an individual in the use of his property. Deprivation of the property must be subject to law. In Hong Kong, a property owner has the right to compensation for unlawful deprivation of his property. Property is not confined to tangible assets but includes any right which has an economic value. The right under the contract between the banker and his customer undoubtedly has an economic value where the account between the banker and customer stands to the credit of the customer. As submitted by Mr Chan the word ‘property’ includes a chose in action. The applicants’ money in the banks is in the form of a chose in action. The receipt of money by a banker from or on account of his customer constitutes him the debtor of the customer: Foley v. Hill (1848) 2 HL. Cas 28 referred to in Garnet. A debt has been held to be a chose in action (Halsbury’s Law of England, 5th Ed. Vol. 13, paragraph 5). Based on the analysis of Garnet, I accept that the ‘Letter of No Consent’ does not by itself freeze the accounts of the applicants but this letter has affected the use by the applicants of their money in the bank accounts. Although the ‘temporary freezing’ of the applicants’ accounts does not constitute a deprivation of their property, the use by the applicants of their property in the nature of the debt which has an economic value is affected. 6.19As Mr Chansubmitted, where consent is withheld, the bank ‘invariably errs on the side of caution and refuses to make the payment. The result is that the account is ‘informally frozen’ for so long as the bank has the relevant suspicion and the police do not consent’: Chief Officer of Jersey Police v Minwalla [2007] JRC 137, [18]. 6.20In assessing whether constitutional rights are engaged, the Court is concerned with substance and not form. In line with this principle, the practical impact of the criminal law on the banks affects the right of the applicants to make use of their money deposited with the banks in the form of a chose in action. (3) Assumption of risks? 6.21Mr McCoy SC (together with Mr Martin Hui SC, Mr Albert N B Wong and Ms Denise Chan) for the respondents submitted that the funds are both material in the investigation and also potentially forfeitable. The temporary seizure of exhibits, pending criminal charges, by the police (in other investigations) is a lawful exercise. There is a duty on the Police to seize material exhibits in investigations. The present regime is further removed though, as the Police has not seized the account or its funds. 6.22Mr McCoy referred to the decision of the European Court of Human Rights in Gasus Dosier und Fordertechnik GmbH v Netherlands,Series A No 306‑B (1995) 20 EHRR 403 which was concerned with tax enforcement by the Dutch tax authorities. They were authorised to seize any assets on the premises of a tax debtor, including those subject to a retention of title clause in favour of a seller. The sellers were in no position to ascertain the actual risk of seizure, because the purchaser’s tax debts were confidential and would not be released by the authorities. The applicant company (G) sold a concrete-mixer to a Dutch company (A) on the condition that title would not pass until the full price had been paid. The machine was seized to cover A’s tax debts. G complained that it had not had access to an independent and impartial tribunal, contrary to Article 6(1) of the Convention, and that it had been deprived of its possessions in violation of Article 1 of Protocol No. 1. The Court there held that while the property rights provision was engaged, the requirement of proportionality has been satisfied. It held that :
6.23Although Gasus was concerned with the proportionality issue, it seems the purpose of Mr McCoy relying on this case is to show that property rights are not engaged because of the assumption of risks by the applicants when they entered into a commercial transaction with their banks which is subject to the provisions of OSCO regarding suspicion of money laundry. This argument is similar to the one raised in the recent decision of Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 where it was argued that the property rights protection is not engaged in respect of planning restrictions imposed on property owners because their rights as property owners are intrinsically defined by and subject to legal restrictions, including the power of the Board to impose such planning restrictions, as incidents of their ownership in accordance with the general law, so that the restrictions whenever imposed do not represent incursions into constitutionally guaranteed rights and thus do not need to be justified. 6.24This view was roundly rejected by the Court of Final Appeal. Ribeiro PJ held the focus of the argument is on the phrase ‘in accordance with law’ :
6.25Applying the rationale in Hysan, I reject the assumption of risk argument advanced by the respondents as being contrary to the express provisions of Articles 6 and 105. They are for the protection of individuals and are not intended to qualify the protection by treating the individuals as having assumed a ‘qualified’ protection. 6.26It is of note that in Hysan, Ribeiro PJ made certain qualifications to the ambit of his discussion :
6.27The issue before us is a full frontal constitutional challenge of the empowering statute itself. The OSCO has been in place since 1995 well before the applicants used the service of the two banks. On my part, proceeding on principles, I would associate with the views of Lord Nicholls of Birkenhead quoted in paragraph 41 of Ribeiro PJ’s judgment which I have underlined for emphasis and hold that the property rights are engaged in the present case. (2) Prescribed by law 6.28Mr Chan submitted that before the Court proceeds to examine whether the intrusion of the property rights can be justified under the proportionality test, the Court should first consider the issue of whether the consent regime was ‘prescribed by law’, details of which I will elaborate on in the next paragraph. In Hysan the discussion on ‘prescribed by law’ took place after the topic on engagement of rights but before proportionality. In Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, the Court of Final Appeal stated that the discussion came under the heading of ‘The Constitutional requirements for restriction’. Although in my view, in the context of this case, the logical place to examine the ‘prescribed by law’ argument should be under the proportionality analysis because the issue is whether the impairment or restriction is justified, I am content to deal with this topic first. 6.29Mr Chan relies on paragraph 30 of the holdings of Ribeiro PJ in Hysan and submitted that the principle of legal certainty requires the restraint on rights to be prescribed by laws which are accessible and precisely defined, and not for instance left to uncharted administrative discretion (‘prescribed by law argument’). He argued that a restraint upon fundamental rights fails the ‘prescribed by law’ requirement if not adequately accessible and sufficiently precise to enable individuals to regulate and foresee the consequences of their conduct: Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, [62‑63]. The consent regime under OSCO, sections 25 and 25A falls foul of these requirements. The statute provides no guidance at all as to when consent may be refused and if so for how long and by what criteria. The Court can only take into account administrative practices, instructions or directives if the individuals concerned are made sufficiently aware of their contents: Silver v United Kingdom (1983) 5 EHRR 347, [88], Leander v Sweden (1987) 9 EHRR 433, [51]. So Chapter 27‑19 of the Manual cannot rectify the position, as it was not made available to the general public or the applicant. In any event, the manual procedures are themselves too vague. For example, paragraph 5(f) states that consent should not be withheld for more than six months unless there are ‘exceptional circumstances’. There is no guidance as to what sort of exceptional circumstances are required. The absence of clear and accessible guidelines with binding force is acute. He relied on SJ v Johnson Cynthia (unreported, HCMP 1789/2016, 4 August 2016) where Zervos J (as he then was) called for a review of the position after pointing out that the ‘informal freezing’ caused by the ‘no consent’ letter in that case lasted for about two years and 10 months. 6.30Mr Chan, however, accepted that this issue was not raised in the applicants’ Form 86, it was not raised before the Judge and it was not included in the Notice of Appeal but only appeared in his written submission. At the direction of the Court, Mr Chan formulated this issue in a proposed amendment of the Form 86 as follows :
6.31Although Mr McCoy had briefly addressed the ‘prescribed by law’ issue in his written submission, his ultimate position in Court is that the applicants should not be allowed to rely on this issue for the first time in this Court. He submitted that the respondents would have filed evidence if this issue had been pleaded and raised in the court below. In my view, the objection raised by Mr McCoy is legitimate. In a constitutional challenge, the burden rests upon the respondent to justify the incursion of the protected rights. If the ‘prescribed by law’ issue had been raised below, the respondent in order to discharge this burden was clearly entitled to adduce evidence in order to justify why the Hong Kong legislative and executive authorities chose to deal with the consent regime in its current form, in particular why details of the operation are only provided in an internal manual not accessible to the public. This has a direct bearing on the margin of discretion principle. Although there is material concerning the second reading of the Organised and Serious Crimes Bill in the Legislative Council in 1995, at the very least, the respondents should be given a chance to explore if there are other materials covering specifically the use of the Manual if the issue of ‘prescribed by law’ had been expressly raised in the Form 86. 6.32In any event the larger picture is that sections 25 and 25A of OSCO are part of the legislative scheme to combat the crime of money laundering. There are similar disclosure and consent regime in the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405), sections 25 and 25A. Likewise, there are also compliance requirements for financial institutions in Anti‑Money Laundering and Counter‑Terrorist Financing Ordinance (Cap. 615), Schedule 2, Part 2. This means a decision on sections 25 and 25A of OSCO will inevitably have an impact on the effectiveness of these legislations. All the more reason why the respondents should be given an opportunity to respond if the issue had been raised below. I am of the view that the applicants are not entitled to rely on the ‘prescribed by law’ arguments for the first time in this Court. (3) Justification : Proportionality (i) Four stage approach 6.33The next topic of discussion is whether the infringement of property rights is justified under the proportionality test. Recently, in Hysan,Ribeiro PJ was of the view that the four‑step analysis which has generally been accepted in the United Kingdom and the European Union should be explicitly adopted in Hong Kong. The four‑step approach is as follows : (1) whether the intrusive measure pursues a legitimate aim; (2) if so, whether it is rationally connected with advancing that aim; (3) whether the measure is no more than necessary for that purpose; and (4) where an encroaching measure had passed the three‑step test, the analysis should incorporate a fourth step asking whether a reasonable balance had been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest resulted in an unacceptably harsh burden on the individual. 6.34Ribeiro PJ emphasized the overlapping nature of these four elements of the analysis :
(ii) The two standards 6.35Ribeiro PJ then identified the two standards used to assess the permissible extent of the infringement into the protected rights. The first is whether the intruding measure is ‘no more than necessary’ and the second is whether the intruding measure is ‘manifestly without reasonable foundation’ :
6.36.Ribeiro PJ held that the second standard is closely related to the concept of ‘margin of appreciation’ (at supra‑national level) and the concept of ‘margin of discretion’ (at domestic level). He held that where the original decision-maker is better placed to decide the legitimacy of the societal aims of the challenged measures and the means to achieve them, the standard to apply is the ‘manifestly without reasonable foundation’ standard.
6.37Ribeiro PJ then held that this standard is to be applied to decisions of the Town Planning Board which are not flawed on traditional judicially reviewable grounds, but which imposed restrictions which encroach upon a land owner’s property rights :
In my view the same reasoning applies to the legislative measures now under challenge. (iii) Consideration of the proportionality test 6.38The real contention in this appeal is that of proportionality. The Judge held that as the property rights were not engaged it was not necessary for him to consider the other arguments advanced by the parties which obviously included proportionality. Accordingly, we do not have the benefit of the Judge’s input on this aspect of the case. I will deal with the matter based on the submissions before us. (1) Legitimate purpose and rationale connection 6.39Mr Chan accepted that in respect of the first and second stage of the analysis, namely legitimate purpose and rational connection, the power to withhold consent to deal with suspected proceeds of crime without risk of potential criminal liability under OSCO, sections 25 and 25A are rationally connected to the legitimate aim of deterring criminal activity by restricting access to the proceeds of crime. (2) Examination of the Manual 6.40I now examine whether the procedures set out in the manual are themselves so vague as to fall foul of the proportionality requirement. 6.41In my view, the absence of ‘temporal limit’ and lack of guideline arguments by the applicants must be rejected for the following reasons submitted by Mr McCoy : (a) The starting point is that there is an implied duty of all persons exercising public power such as the Police to act reasonably. Mr McCoy correctly submitted that reasonable suspicion activates the right to arrest or to investigate and such an assessment can only be challenged on the basis that it is Wednesbury unreasonable, namely perverse. This point is fully illustrated by Shaaban Bin Hussien and Others v Chong Fook Kam and another [1970] A.C. 942 where Lord Devlin dealing with the issue of arrest on suspicion stated that :
See also Pang Yiu Hung v. Commissioner of Police & Another [2003] 2 HKLRD 125 and HKSAR v. Bian Zhenju, CACC 471/2012 (unreported, 23 December 2013). (b) In Hong Kong criminal law, there is no time frame imposed for the investigation of any criminal offence. Section 26 of the Magistrates Ordinance, Cap. 227, of course, requires all summary offences to be charged or summonses to be laid, within six months of the date of the offence having occurred. However, that default provision is itself extended in a number of ordinances in relation to mere summary offences, where the underlying investigatory issues can be more complicated or involve international or Mainland elements, e.g. section 389(1) of the Securities and Futures Ordinance, Cap. 571, extends the time limit for prosecution (and therefore for potential investigation) for three years (after the commission of the offence). Other examples are section 47 of the Dutiable Commodities Ordinance, Cap. 109; section 37 of the Import and Export Ordinance, Cap. 60; section 36D of the Prevention of Copyright Piracy Ordinance, Cap. 544; section 120A of the Copyright Ordinance, Cap. 528 which all create other variations to the default positons in the Magistrates Ordinance. (c) There is no time limit at common law for the prosecution of any indictable offence subject, of course, to the power of the Court to stay proceedings by reason that a fair trial could not take place because of delay. (d) Section 70 of the Interpretation and General Clauses Ordinance (Cap. 1) provides :
The decision making process under the Manual must be subject to this express legislative provision. (e) The time and the method taken by the Police to investigate must necessarily depend on the complexity of the case (the present case being an example) and the way in which the person under investigation responds to the enquiries by the Police. (f) The level of precision required of a law ‘must depend on the subject matter of the law in question’. Hence, in Leung Kwok Hung :
(g) There are long established authorities that where the statute imposes an obligation on a public body to take a particular step, that does not normally import any requirement to take that step within a particular time and the general rule is that delay is controlled by the application of established public law principles (which include the Wednesbury test) and not by the Court reading in time limits: Engineers’ and Managers’ Association v Advisory Conciliation and Arbitration Service [1980] 1 WLR 302 at 318; R v Secretary of State for the Environment ex p Birmingham CC (1987) 27 RVR 53 at 55 and R v Children and Family Court Advisory and Support Service [2003] EWHC 235 Admin at [91(3)]. 6.42For these reasons, I reject the argument that the procedural steps in the Manual are so uncertain that they fall foul of the proportionality requirement. (3) Alternative measures? 6.43Mr Chan then argues that the consent regime is disproportionate because it severely affects fundamental rights and there are less intrusive alternatives available. 6.44I will first set out Mr Chan’s arguments : (a) The consent regime severely affects fundamental rights. The indefinite freezing of accounts of unlimited value can critically damage individuals and businesses. There is no right to compensation, even where there is complete innocence of wrongdoing. Significantly, multiple Courts across multiple jurisdictions have characterised the power to withhold consent indefinitely as draconian and capable of causing ‘great hardship’ and ‘grave injustice’: Squirrel v National Westminster Bank [2006] 1 WLR 637, [7]; R (UMBS Online Ltd) v Serious Organised Crime Agency [2007] Bus LR 1317, [8]; Chief Officer of Jersey Police v Minwalla [2007] JRC 137, [9]; Gichuru v Walbrook Trustees (Jersey) Ltd [2008] JRC 68, [12]. (b) The systemic risk of grave injustice from withheld consent cannot be effectively ameliorated by case-specific judicial review. It is unlikely that customers can obtain sufficient information about the Police’s suspicions to initiate an effective challenge. Since disclosure will likely prejudice an ongoing investigation into serious criminal activities, applications for specific discovery face rejection on grounds of public interest immunity: R (UMBS Online Ltd), [37]. It is difficult in law and in practice for customers to obtain relief even if wholly innocent of wrongdoing. So long as the Police can show that it was not Wednesburyunreasonable for them to suspect the funds are proceeds of crime, judicial review is unlikely: Amalgamated Metal Trading v City of London Police [2003] 1 WLR 2711, [27]; Ani v Barclays Private Bank [2004] JRC 69, [22]; Garnet, [67]. Even if these hurdles are surmounted, it is likely to take a year or more before proceedings are finally resolved. By then, the damage will have been done, in many cases irreversibly. (c) Likewise, a private law action against the bank for breach of contract (mentioned in authorities such as Garnet [58‑61]) is not a satisfactory solution to the constitutional problem. It is again very difficult for customers to obtain relief even if wholly innocent. The Courts imply into the banking contract a term that the bank is entitled to refuse to process payment instructions if it suspects that the transaction involves the proceeds of crime and the public authority does not grant consent: Shah v HSBC Private Bank [2013] 1 All ER (Comm) 72, [39-45]. So the customer can only succeed if it can prove bad faith or can otherwise cast doubt on the bank’s subjective suspicions: Shah v HSBC Private Bank [2010] 3 All ER 477, [17-22]. In any event, a private law action raises a host of practical problems. The bank will not have the requisite knowledge, evidence or incentive to contest the customer’s case on the source of the funds. The Police cannot intervene to assist the bank without revealing their hand in potential criminal proceedings against the customer. The customer is also in an invidious position as he may incriminate himself by giving evidence on the source of the funds. All these problems arise from the fact that disputes on the provenance of the funds ought to be resolved in criminal proceedings between the prosecution and the customer and a private law action is also likely to take years to resolve. (d) The right to seek compensation under OSCO, section 29 is also inadequate to protect the rights of innocent individuals. The Court can only award compensation where there is serious default on the part of some person concerned in the investigation or prosecution and the individual has suffered loss as a result of the restraint order: section 29(2). There is no right to compensation for ‘informal freezing’ of the property as such. (e) Mr Chan argued that sections 328 and 335 of the UK Proceeds of Crime Act 2002 and the section 43 of Bermudan Proceeds of Crime Act 1997 limit the period for which consent may be withheld. The English courts have observed that these provisions strike a ‘precise’, ‘workable’ and ‘reasonable’ balance between the aim of deterring criminal activity and the rights/interests of the innocent individuals who may suffer harm as a result: K Ltd v National Westminster Bank [2007] 1 WLR 311, paragraph 22. (f) Jurisdictions such as Canada, Australia and New Zealand do not vest authorities with power to withhold consent to deal with customer funds. The Courts can ring‑fence suspected proceeds of crime by granting a freezing/restraint order at the investigative stage. For the offence of money laundering and the power to apply for restraint orders: see the Canadian Criminal Code, sections 462.31 and 462.33, and the useful summary of the Canadian regime in AG of Quebec v Laurent Laroche and Garage Cote [2002] 3 SCR 708 at paragraphs 23‑46. For financial institutions’ disclosure/reporting obligations: see the Canadian Proceeds of Crime (Money Laundering) and Terrorist Financing Act, Part 1. For the offence of money laundering: see Chapter 10, Division 400 of the Australian Criminal Code Act 1995. For financial institutions’ reporting obligations: see the Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006, Part 3. For the power to apply for freezing orders and restraint orders: see the Australian Proceeds of Crime Act 2002, Chapter 2, particularly sections 15B, 18, 19 and 20A. For the offence of money laundering: see the New Zealand Crimes Act 1961,sections 243-245. For financial institutions’ reporting obligations: see the New Zealand Anti‑Money Laundering and Counter-Terrorism Financing Act 2009, sections 39A‑48. For the power to apply for restraint orders: see the New Zealand Criminal Proceeds (Recovery) Act 2009, sections 5 and 18‑42. Such a power is also available in Hong Kong. (g) There is nothing in the respondents’ evidence to explain why the significantly less intrusive alternatives mentioned above cannot be adopted without compromising the legitimate aims pursued. (h) The Jersey courts expressly invited the legislature to amend the analogous consent regime in the Proceeds of Crime (Jersey) Act 1999 by imposing time limits on the power to withhold consent: Minwalla, [74]; Gichuru v Walbrook Trustees (Jersey) Ltd [2008] JRC 068, [36-38]. (4) My view on these arguments 6.45I will deal with the issue of restraint order first because the other arguments advanced by Mr Chan can be dealt with together. (a) Restraint order 6.46Under OSCO section 14(2), the Court may grant a restraint order where satisfied that : i) a person is to be charged with a specified offence, ii) there is reasonable cause to believe he has committed the offence, and iii) there is reasonable cause to believe that he has benefited from that offence: Secretary for Justice v Wu Li Hui [2009] 1 HKLRD 78, paragraphs 17-19. 6.47It is open to the Police to apply for a restraint order even before formal charges are laid. Once a restraint order is granted, the person subject to it is restrained from dealing with property falling within its scope. Breach of the restraint order is a criminal offence: OSCO, sections 15(1) and (16). Like the consent regime, the restraint order regime allows the Police to preserve a person’s assets for confiscation if a conviction is eventually secured. 6.48However, unlike the consent regime, the restraint order regime under OSCO, namely, sections 14 and 15 contains numerous procedural safeguards which can mitigate the harm caused by the freezing of assets. For instance : i) The restraint order is time-limited: see section 14(4). ii) Persons affected have the right to be heard: see section 15(4)(c), (5) and (6). iii) The Court can impose measures to preserve the frozen property: see e.g. section 15(7) (appointment of receiver). 6.49In my view, the comparison with the restraint order regime is not appropriate. While a restraint order actually freezes the operation of the accounts, as discussed in Garnet, the consent regime does not freeze the bank account. The freezing of the account is by the financial institution itself. For example, if the bank reasonably suspects that the credit balance in an account are proceeds of crime, then it would be legally obliged under section 25 not to deal with it, whether the police has replied to its STR or not under the letter of consent regime. Conversely, if the bank subsequently determines that there are no reasonable grounds to believe that the money has that character, then it is free to deal with the account even though the police has, in response to the STR, issued a letter of no consent. It is only in the context of constitutional protection that the property rights provisions are engaged as a result of the operation of the consent regime. Furthermore, the consent regime only operates at the investigation stage while the restraint order regime only operates at the prosecution stage. The standard of the granting of a ‘letter of no consent’ is based on a reasonable suspicion while the standard in relation to the restraint order regime is based on ‘reasonable cause to believe’. The decision to apply for a restraint order is made by a prosecutor. The availability of the restraint order regime at a later stage does not point towards a consent regime at an earlier stage being disproportionate, when investigations are ongoing. In any event this must be an area where our legislative and executive authorities must be accorded with the margin of discretion on why they had chosen to adopt the measures in such a manner. (b) Other arguments 6.50In respect of the other arguments raised by Mr Chan, namely, the consent regime affects the financial resources of a party, the practical difficulties of a successful judicial review challenge, the problem associated with a civil claim and the limited scope of the compensation provisions are recognised. However, this being a constitutional challenge, the standard of assessment is whether it is ‘manifestly without reasonable foundation’. Applying this standard, my view is that the measure is no more than necessary for the legitimate purpose and societal benefit of anti‑money laundering. The consent regime is part and parcel of the measures used to combat organised crime in money laundering. In my view, a reasonable balance has been struck between the societal benefits of the consent scheme and constitutionally protected rights of the individual. It cannot be said that the pursuit of the societal interest results in an unacceptably harsh burden on the individual. 6.51Likewise, a comparison with the anti‑money laundering provisions in other countries is not appropriate. As Mr McCoy had submitted, it not helpful to refer to these provisions without an understanding of the vast landscape of powers available to those jurisdictions with anti‑money laundering and anti‑terrorist financing measures. For example, the UK PCA 2002 is not the only measure available to law enforcement authorities to combat money‑laundering. It is specifically supplemented by Schedule 7 of the Counter Terrorism Act 2008. By paragraph 1; 3(1)(c); and 13(c), the Treasury can effectively direct the whole financial sector to cease transactions and relationships with a whole financial institution. 6.52 More importantly again in my view this is where the margin of discretion comes into play, particularly where the Court recognises the legislative and executive branches who were the originators of the impugned measure as better placed to assess the appropriate means to advance the legitimate aim espoused. I, therefore, reject the applicants’ argument that the encroachment on the property rights was disproportionate. B) Fact‑specific challenge (1) The applicants’ case 6.53The applicants have narrowed the fact‑specific challenge to one point only, namely the respondents acted unconstitutionally (or otherwise unfairly and unreasonably) against the applicants by using that power to bypass the procedural safeguards for restraint order applications under OSCO, section 15. Mr Chan argued that in light of the far more balanced and closely supervised restraint order mechanism, it was clearly disproportionate and unreasonable for the respondents to choose not to apply for a restraint order until April 2015 (i.e. more than 500 days after the ‘No Consent Decision’), particularly when the applicants on multiple occasions alerted them to the severe economic and reputational loss they faced if their accounts continued to be frozen. If, by mid to late 2014 (i.e. more than six months after the ‘No Consent Decision’), the respondents did not think they could prove there was reasonable cause to believe that the applicants committed a specified offence, they clearly had no rational basis to informally freeze the applicants’ funds by continuing to withhold consent from HSB. (2) My view 6.54I had already dealt with the different roles of the consent regime and the restraint order regime. As to the argument on the continuing withholding of consent and the delay in applying for a restraint order, I have already referred to the fact that where there is no express statutory time limit, reasonableness is not measured by the Court reading in time limits. 6.55Further where the decision maker has a discretion to defer enquiries for a period, the view of Lord Scarman in Engineers’ and Managers’ Association at page 318 F is pertinent :
6.56Adopting the formulation in Engineers’ and Managers’ Association, the crucial question is whether the decision maker has by the deferment in this case abdicated its statutory function to proceed with the ‘No Consent Decision’. The Courts cannot intervene, unless satisfied that it has. In this case no bad faith is alleged. Further, one must consider the complexity of the issues with cross-border elements involved. Mr McCoy accepted that an obvious example of where the Police may be acting unreasonably or ultra vires in withholding consent is if the investigation had effectively been concluded and there was no reason to believe the property was proceeds of a crime. This is not such a case. The fact-specific challenge on Wednesbury unreasonableness is rejected. 2) Access to Court rights 6.57In the written submission of Mr Chan he argued that the right of access to the Courts under Article 35 of the Basic Law is engaged by a decision involving the exercise of judicial power. Any exercise of judicial power other than by a court of law prima facie curtails that right and must be justified: Lee Yee Shing Jacky v Board of Review [2011] 6 HKC 307, paragraph 79. The right to a fair hearing before a competent, independent and impartial tribunal established by law under HKBORO Article 10 is engaged if the decision involves determination of ‘rights and obligations in a suit at law’. Those words bear the same meaning as the phrase ‘determination of civil rights and obligations’ under Article 6 of the ECHR and should be generously interpreted: Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, paragraphs 24, 62-65. 6.58He also argued that a ‘no consent’ letter also determines civil rights and obligations. To protect banks from liability in performing obligations under OSCO, the Courts will imply into the banking contract a term that the bank is entitled to refuse to process payment instructions if it suspects the transaction involves the proceeds of crime, and the JFIU does not grant consent: Shah v HSBC Private Bank [2013] 1 All ER (Comm) 72, [39-45]. A decision to withhold consent therefore affects banks’ civil obligations vis‑à-vis their customers. 6.59Mr Chan did not press these two points when he was asked to elaborate on these rights. My concern then was whether it is the applicants’ case that they ought to be afforded an opportunity to present their case before the authorised officer gave his decision. 6.60In my view the access to court rights have not been engaged because of the judicial remedies available to the applicants by way of judicial review and civil claim against the banks. VII. New evidence 7.1.The respondents filed an application to adduce new evidence in respect of four affidavits, two of which came from the handling solicitor of the respondents exhibiting various correspondence between the parties. Another affidavit is from Lai Yu-ho, acting superintendent of the Police for the purpose of informing the Court of various developments and statistics in respect of issues raised in the present appeal. There is another affirmation from Cheng Sze-wai of the Commercial Crime Bureau filed ‘with a view to providing the Court of Appeal with updated additional relevant information to assist the Court in properly considering the key issues raised in the present appeal.’ 7.1.Mr Chan objected to the admission of this new evidence but agreed to have the new evidence considered by the Court on a provisional basis. In my view, it is most exceptional in an appeal from a judicial review that new evidence should be introduced. There is no proper basis for this new evidence to be included as part of the factual background of the case which was before the Judge and had been considered by him. In my view, the background of the case as presented to the Judge is sufficient for the purpose of this appeal. Accordingly, the application to adduce the new evidence is refused. VIII. Conclusion 8.Accordingly, the appeal is dismissed. IX. Costs 9.There will be a costs nisi that the respondents are to have the costs of the appeal save that the applicants’ costs relating to the application for new evidence is to be borne by the respondents. I will grant certificate for two counsel. Hon Yuen JA : 10.I AGREE WITH THE JUDGMENTS OF CHEUNG JA AND G LAM J. HON G LAM J : 11.1I am in respectful broad agreement with the judgment of Cheung JA and would only add a few words of my own. As regards the “prescribed by law” point, I agree that the applicants should not be permitted to raise it for the first time in this court at the last minute. Whilst, as Mr Chan submitted, it is ultimately a point of law, the issue requires a “holistic” approach that takes into account all the requirements of the law including the common law in the light of all the circumstances: Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005, [96]. I am not satisfied that the respondents have been afforded a fair opportunity to respond to the argument given the way in which it was raised. Further, although the applicants’ proposed amendment (as set out in [6.30] above) attacks OSCO for lack of indication of the criteria relevant to the exercise of the discretion to withhold consent, the (UK) Proceeds of Crime Act 2002 on which the applicants place heavy reliance does not set out any criteria either. 11.211.2 The applicants’ main argument before us boils down to the contention that the consent regime found in ss 25 and 25A OSCO was deficient in not providing for an express fixed time limit after which the “informal freeze” would expire and cease. The applicants placed great store on the fact that there was such a time limit in UK legislation (Proceeds of Crime Act 2002, ss 328 and 335) and that the statutory scheme there had been described as striking a “precise and workable balance” between the conflicting interests: K Ltd v National Westminster Bank, supra, at [22]. It seems to me, however, that it is not helpful, and could indeed be potentially misleading, to compare aspects of the schemes in different jurisdictions in isolation. There are variations in other interlocking parts of the law providing for anti-money laundering and anti-terrorist financing measures in many jurisdictions. For example, under ss 40 and 41 of the (UK) Proceeds of Crime Act 2002, a restraint order may be granted as soon as a criminal investigation has commenced and where there are reasonable grounds to suspect the defendant has benefited from the offence, whereas in Hong Kong a restraint order can only be applied for where “proceedings have been instituted” (which is a significantly later stage than the commencement of investigation) and where there is reasonable cause to believe the defendant has benefited from the offence: see ss 2(15) and 14(1) OSCO. 11.311.3 It is true that OSCO does not lay down any express expiry time for the informal freeze. But equally it contains nothing that prevents the authorities from exercising their powers in a way that common law principles and respect for the property rights protected by Articles 6 and 105 of the Basic Law may require, or impedes the courts from giving relief where there is a failure by the authorities, in any particular case. The applicants have in my view failed to demonstrate that the consent regime systemically mandates a result that is incompatible with the Basic Law such that the relevant statutory provisions should be declared unconstitutional.
Mr Abraham Chan SC and Mr Joshua Chan, instructed by Haldanes, for the 1st and 2nd applicants Mr Gerard McCoy SC and Mr Albert N B Wong (counsel on fiat) and Mr Martin Hui SC DDPP and Ms Denise Chan ADPP, of Department of Justice, for the 1st to 3rd respondents | |||||||||||||||||||||||||||||||||||
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