Re Kim Dotcom and Others

HCMP 116/2012

[2019] HKCFI 843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 116 OF 2012

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D E C I S I O N

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1.This is an application by the 1^st and 2^nd defendants to discharge the restraint order granted by Madam Justice Bokhary on 18 January 2012 (‘2012 HK restraint order’). The original restraint order had since been varied, set aside and re-granted by a series of subsequent court orders. It was last varied by this court on 2 January 2019.

2.By a summons dated 2 November 2016, the 1^st and 2^nd defendants sought the following orders:

(a)   To discharge the ‘2012 HK restraint order’on the ground that:

(i)   the Secretary for justice (“SJ”) should have refused the United States of America’s request for assistance under the Mutual Legal Assistance in Criminal Matters Ordinance, CAP. 525 (‘MLAO’), and/or

(ii)   that the predicate alleged criminal copyright offences under the laws of the United States of America do not constitute criminal copyright offences under the laws of Hong Kong.

(“Dual Criminality Ground”)

(b)   A declaration that:

(i)   the threatened or actual registration and/or enforcement of the Civil Forfeiture Order dated 27 March 2015 by His Honour Judge Liam O’Grady (‘CFO 2015’) would constitute a breach and/or violation of Art. 11(1) and (2) of the Hong Kong Bill of Rights Ordinance (‘HKBORO’), and/or

(ii)   the “doctrine of fugitive disentitlement” is unknown to the laws of Hong Kong.

(“Fugitive Disentitlement Ground”)

(c)   Costs on indemnity basis.

3.The summons was initially fixed for hearing on 7 December 2016, which was refixed for 5 March 2018.  It was subsequently fixed for hearing on 14 January 2019 at the request of the defendants.

The background

4.In 2012, the 1^st defendant and others were arrested in New Zealand pursuant to an indictment issued by a Grand Jury from the United States District Court for the Eastern District of Virginia.  The charges included conspiracy to commit criminal copyright infringement, conspiracy to commit racketeering and conspiracy to commit money laundering^[1].

5.The defendants’ assets in New Zealand was under a restraint order registered in New Zealand pursuant to the Mutual Assistance in Criminal Matters Act 1992.  The original restraint order was issued by the US District Court for the Eastern District of Virginia in 2012.^[2]

6.About the same time in January 2012, the SJ applied to the Court of First Instance of Hong Kong for a restraint order against the Hong Kong assets of the 1^st defendant and others^[3]. It was granted by Madam Justice Bokhary and varied by subsequent court orders.

7.The ‘2012 HK restraint order’was granted based on the criminal proceedings commenced in the United States.  There might be a confiscation order depending on the outcome of those criminal proceedings.

8.The 1^st defendant has been contesting his extradition from New Zealand since 2012.  He has been found extraditable by the New Zealand District Court and High Court.  His appeal was dismissed by the New Zealand Court of Appeal on 5 July 2018.  He has since appealed to the New Zealand Supreme Court.  The result is pending.

9.In March 2015, the United States authorities successfully obtained a civil forfeiture order in the United States against the properties of the 1^st and 2^nd defendants held in New Zealand and Hong Kong.  Their appeal was dismissed by the United States Court of Appeal in November 2016.  The United States Supreme Court refused leave to appeal on 2 October 2017.  The civil forfeiture order is therefore final.

The Dual Criminality Ground

10.Mr. McCoy, SC, for both defendants argues the following:

a.   Section 5(1)(g) of MLAO clearly requires dual criminality.^[4]

b.   Article 3(1)(d) of Schedule 1 of the Mutual Legal Assistance in Criminal Matters (Unite States of America) Order (MLAO/US) requires dual criminality.^[5]

c.   Even if dual criminality is satisfied, the SJ must refuse assistance if the external offence is not one listed in the Annex of Schedule 1 of the MLAO/US.

d.   MLAO/US uses the phrase ‘acts and omissions constituting the offence’.  This phrase requires reciprocity in the alleged offence with a corresponding offence, not simply any Hong Kong offence.  Mr. McCoy argues that the narrow construction of this phrase adopted in Government of Canada v Aronson ^[6] should be adopted.

e.   There is no corresponding copyright offence in Hong Kong as those set out in the Grand Jury indictment.  The conduct of both defendants, as online service provider, is not a criminal offence in Hong Kong.^[7]

11.Mr. Walsh, SC, for SJ argues that:

a.   The application is an abuse of process.  Under s.5 of MLAO, the SJ first determines whether to assist (‘Executive Phase’).  The court then exercises the power under s.27 and Schedule 2 of MLAO to grant the restraint order (‘Judicial Phase’).

b.   The decision to assist by the SJ is a statutory duty which should only be challenged by way of judicial review.  Mr. Walsh relies on Lau Wong Fat v AG [1997] HKLRD 533.^[8]

c.   It is not for the court to review the merits of the gateway requirements considered by the SJ during the executive phase.

d.   Dual criminality is removed in money laundering and racketeering offences by virtue of Schedule 2 of MLAO/US.

e.   The narrow construction of Aronson has been rejected by Hong Kong courts in extradition cases.^[9]

f.   In any event, dual criminality is satisfied as the conduct of both defendants is contrary to s. 118(1)(e), (f) and/or (g) of the Copyright Ordinance CAP 528.^[10]

12.Under s.8 of MLAO, a request for assistance from a place outside Hong Kong in criminal matters may be made to the SJ.  In the executive phase, SJ will consider the scenarios set out in section 5 of MLAO.

13.Once the SJ agrees to assist, it would represent the place outside Hong Kong to subsequent proceedings in the Court of First Instance^[11]. In this judicial phase, the court will consider whether (1) proceedings have been instituted in a place outside Hong Kong; (2) the proceedings have not ended and (3) an external confiscation order has been made or reasonably expected to be made in the place outside Hong Kong.^[12]

14.In reality, once the three conditions above are satisfied, a court will grant a restraint order under MLAO.  There is no need for the court to consider whether a defendant has benefited from the specified offence or merits of the application.  This is different from s.14(1)(c)(ii) of the Organized and Serious Crimes Ordinance, CAP 455.

15.The defendants’ application to discharge the ‘2012 HK restraint order’is in substance a review of the decision of the SJ in the executive phase.  This is a statutory duty within the ambit of public law.

16.Where the right of an individual is infringed by a person exercising statutory duty, he must challenge the decision by way of judicial review.

17.This exclusivity principle is authoritatively stated by Lord Diplock in O’Reilly v Mackman.  After reviewing the development of Order 53, his Lordship stated:

“Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.”^[13] (emphasis added)

18.In O’Reilly v Mackman, four prisoners in Hull Prison were found guilty of disciplinary charges by the board of visitors to the prison. They sought a declaration by writ and originating summons that the decision of the board was against natural justice.  The House of Lords dismissed their appeals on the ground that it was contrary to public policy and an abuse of process for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary action.

19.The Court of Appeal in Hong Kong had cited with approval the exclusivity principle above in Lau Wong Fat v Attorney General^[14].

20.In Lau Wong Fat, the Governor of Hong Kong gave consent to the New Territories Land (Exemption) Ordinance, CAP. 452 in June 1994.  The Ordinance allowed women to inherit rural land in the New Territories in the absence of a will.  The plaintiff was an indigenous inhabitant of the New Territories.  He issued a writ seeking various reliefs including a declaration that the Ordinance infringed Art. 23 of the Hong Kong Bill of Rights ^[15]. The plaintiff’s action was struck out as the argument based on Art. 23 was untenable.

21.The Court of Appeal dismissed the plaintiff’s appeal.  In commenting on the procedures, Godfrey JA pointed out that where a person seeks to establish that the decision of a person or body infringes rights which are entitled to protection under public law, he must, as a general rule, proceed by way of a judicial review and not by way of an ordinary action.

22.The rigidity of the exclusivity principle is of some concern in subsequent cases and academics.  In fact, Lord Diplock himself pointed out that there could be exceptions in O’Reilly v Mackman,

“My Lords, I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties object to the adoption of the procedure by writ or originating summons. Whether there should be other exceptions should, in my view, at this stage in the development of procedural public law, be left to be decided on a case to case basis”^[16]

23.Subsequent to O’Reilly v Mackman, there were cases which relaxed the exclusivity principle.  In those cases, there were collateral issues, e.g. contractual, which are suitable for adjudication in a court albeit that the primary issue was a public law one.^[17]

24.The present case involves pure public law duties exercised by the SJ.  Under s. 5 of the MLAO, the SJ has to consider issues including sovereignty, political offences, military law, persecution, interests of Hong Kong and dual criminality.  These are important public interest issues which should be clarified without delay.

25.The ‘2012 HK restraint order’was granted in January 2012.  A number of court decisions had been given based on its validity.  There is no explanation from the defendants as to the delay.  In fact, the defendants sought variations of the ‘2012 HK restraint order’ from time to time without raising any issue as in the present case.

26.Bearing all these in mind, I agree with Mr. Walsh that the defendants should have challenged the SJ’s decision to assist by way of judicial review.  The present application to discharge the ‘2012 HK restraint order’ is an abuse of process of the court.  It is sufficient to reject the application for discharge of the ‘2012 HK restraint order’ on this ground.

27.For the sake of completeness, I have the following observations on the dual criminality argument:

a.   The wording of s.5(1)(g) is clear—SJ shall refuse a request for assistance if the request relates to an act or omission that, if it had occurred in Hong Kong, would not have constituted a Hong Kong offence—the emphasis is on the act or omission.  Nothing in this subsection requires reciprocity or a corresponding offence.

b.   Mr. McCoy urges this court to adopt a narrow construction on the meaning of s.5(1)(g) of MLAO.  He relies on Aronson^[18],which is an extradition case.

(i)   In the United Kingdom, a fugitive would only be returned to the requesting country if he is accused or has been convicted of a ‘relevant offence’ as defined under s.3(1)(c) of the Fugitive Offenders Act 1967.

(ii)   Under s.3(1)(c) of the Act, an offence is a ‘relevant offence’ if the act or omission constituting the offence …would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom.

(iii)   In Aronson, the House of Lords, by a majority of 3 to 2, held that the phrase ‘the act or omission constituting the offence’ must mean the ingredients of the offence (narrow construction), not the totality of the evidence relied upon to prove the offence (broad construction).

c.   The wording of s.5(1)(g) is ‘an act or omission if it had occurred in Hong Kong…’  It is distinctly different from s.3(1)(c) of the Fugitive Offenders Act 1967.  Mr. McCoy in effect invites this court to add the phrase ‘constituting the offence’ to S.5(1)(g).  In my view, this is not justified.

d.   In Re: Rafat Ali Rizvi and others, Deputy Judge Yau^[19] actually applied the broad approach when he said “no matter the offence was called corruption or any other names in the indictment, the allegations against the defendants are clearly offence of fraud/theft in the context of Hong Kong Law.”^[20]

e.   Under the Fugitive Offenders Ordinance CAP. 503, a person may be arrested and surrendered to a prescribed place if he is wanted for prosecution or imposition of a sentence in relation to a ‘relevant offence’^[21].

(i)   A ‘relevant offence’ is defined as an offence punishable by imprisonment for 12 months or more under the law of the prescribed place, and the acts or omissions constituting the conduct of the relevant offence, which if occurred in Hong Kong, would constitute an offence.^[22]

(ii)   In Cosby v Chief Executive of the HKSAR, Stock J ^[23] held that it was the conduct of the fugitive which should be considered.  There was no need to match the foreign offence with a local offence.^[24]  

(iii)   The narrow construction in Aronson is not applicable in Hong Kong in relation to extradition law.

f.   Art.3(1)(d) of MLAO/US uses the phrase ‘the acts or omissions alleged to constitute the criminal offence’.  This must be read subject to s.5(1)(g) of the MLAO.  In fact, s.2 MLAO/US clearly provides that the MLAO applies subject to any modification in Schedule 2.  In my view, the clear meaning of s.5(1)(g) prevails in case of any doubt.

g.   The Annex in Schedule 1 of MLAO/US provides that ‘In addition, the Parties agree to provide assistance in investigations, prosecutions, and proceedings concerning the following offences without regard to whether the acts or omissions alleged to constitute the offence would constitute an offence under the laws of the Requested Party…’ (emphasis added).  Dual criminality is not a prerequisite for those offences listed in the Annex.

(i)   The offences mentioned in the Annex include money laundering, racketeering and organized crimes.

(ii)   There is no definition of ‘organized crime’ either in MLAO or MLAO/US.  However, “organized crime’ under s. 2 of the Organized and Serious Crimes Ordinance CAP. 455^[25] included Copyright Offences under s.118(1), (4) and (8) of the Copyright Ordinance CAP. 528.  This meaning of ‘organized crime’ should be adopted.  It covers the charges in relation to copyright offences in the Grand Jury Indictment.

(iii)   All the charges alleged in the Grand Jury Indictment are within the Annex.

The declarations—doctrine of fugitive disentitlement

28.The gist of Mr. McCoy’s argument is as follows:

a.   The defendants rely on O.15 r.16 of the Rules of High Court for a declaration. ^[26]

b.   The defendants also relies on s.6 of the Hong Kong Bill of Rights Ordinance CAP. 383.^[27]  This section is triggered when there is a threatened violation of rights.  It does not require “imminent threat” or “serious threat”.

c.   The 1^st defendant exercises his right to defend his extradition^[28]. He therefore has not entered the jurisdiction of the United States.  He has not escaped from custody and is not a fugitive in the conventional sense.

d.   The ‘CFO 2015’ was obtained in the absence of the defendants.  The US District Court granted the order based on the doctrine of fugitive disentitlement.  This doctrine is not known to the law of Hong Kong.

e.   The US government intended to register the ‘CFO 2015’ in Hong Kong.  They have already done so in New Zealand.  In Hong Kong, registration of the ‘CFO 2015’ infringes Art. 10 and 11 of the Hong Kong Bill of Rights.

f.   An opportunity to resist the registration in an inter partes proceedings could not remedy the infringement.

29.Mr. Walsh, SC, argues the following:

a.   Application for registration of the ‘CFO 2015’ may not occur.  It is not appropriate to ask the court to decide hypothetical questions.  The application for declaration is therefore premature.  Mr. Walsh relies on Charter View Development Ltd v Golden Rich Enterprises Ltd ^[29].

b.   Registration of the ‘CFO 2015’ must be in accordance with ss.27, 28 and Schedule 2 of MLAO.  The defendants are entitled to challenge the registration, on the return date of the summons.

c.   In any event, the SJ undertakes that any application to register the ‘CFO 2015’ will be made inter partes on notice.^[30]

d.   Registration of the ‘CFO 2015’ is civil in nature.  Art.11 of the Hong Kong Bill of rights deals with criminal proceedings and is not engaged.

e.   SS.27 & 28 of MLAO and O.115A of the Rules of High Court ensure a fair hearing on the prospective application for registration of the ‘CFO 2015’.  Art. 10 of the Hong Kong Bill of Rights is satisfied.

f.   The defendants are outside Hong Kong jurisdiction.  The Hong Kong Bill of Rights Ordinance does not safeguard their rights.  Mr. Walsh relies on Ubamaka v Secretary for Security.^[31]

30.The ‘CFO 2015’ was granted by Judge O’Grady, US District Judge, in February 2015.  Up to December 2016, there had been no action taken by the US Government to register the order in Hong Kong. ^[32]

31.During the hearing in January 2019, Mr. Walsh confirmed that there is no decision to apply for registration of the ‘CFO 2015’ in Hong Kong.  The position is similar to paragraph 8 of the joint memorandum to the New Zealand Court^[33] dated 5 November 2018 as follows:

“Counsel for the defendants has indicated that no decision has yet been made as to whether to re-authorise the second defendant to apply for registration of the US Forfeiture Order, nor when this might be considered. As noted above, any such decision is likely to be the subject of an application by the plaintiffs for review in this proceeding.”

32.The SJ has given an undertaking that any application to register the ‘CFO 2015’ will be made inter partes with notice to the defendants.  The defendants will have full protection under the law.

33.At this stage, the application for declaration is contingent upon an application by the SJ to register the ‘CFO 2015’.  Mr. McCoy argues that it is a matter of time.  That may be true but to grant a declaration in these circumstances may not be appropriate.

34.In general, declaratory relief would only be granted when there is a dispute based on concrete facts.  Even though a person may be anxious to ascertain his legal position as early as possible, a declaration would not be made merely to put an end to that uncertainty.

35.In Charter View Development Ltd v Golden Rich Enterprises Ltd, Ribeiro JA^[34] cited with approval the comment in Zamir and Woolf, The Declaratory Judgment, Sweet & Maxwell (2^nd Edition) at 127,

“…it is of particular importance that the declaration sought must be based on concrete facts. If it is not, and if, for instance, there is no dispute in existence or the dispute is based on purely hypothetical facts or if the dispute has ceased to be of any practical significance, the court’s established practice is to refuse declaratory relief. The court will in particular refuse to give an advisory opinion sought by a plaintiff in the guise of declaratory relief in respect of a situation that has not arisen and may never arise.” (my emphasis)^[35]

36.In the above case, the plaintiff entered into nine contracts to purchase parcels of land from the 1^st defendant.  The plaintiff paid 40% deposit and the due date for completion was set.  The 2^nd defendant as agent for the 1^st defendant promised to reimburse the deposit to the plaintiff if the transaction failed to complete.  The transaction was not completed 2 years after the due date.

37.The plaintiff sought declarations from the court that the conduct of the 1^st defendant showed an intention to repudiate the contracts, the plaintiff was entitled to accept the repudiation and refund of the deposit.

38.The Court of Appeal refused to grant the declarations. Ribeiro JA held that:

“…The plaintiff is asking the court for legal advice as to whether, if, hypothetically, it should choose to assert that the first defendant has repudiated the nine contracts and to accept such repudiation, its action would be held to be lawful. It is an action for an advisory opinion based on a hypothetical course of action which may or may not eventuate. The court declines to act as legal adviser in such cases.”^[36]

39.In the present case, there is no concrete decision to register the ‘CFO 2015’.  It may or may not eventuate.  The SJ may reconsider whether to assist under MLAO like the situation in New Zealand.  The defendants could have resisted the registration in the inter partes proceedings.

40.In my judgment, it is inappropriate to grant any declaratory relief in view of all these eventualities.  It would serve no useful purpose.

41.The defendants also rely on s.6 of the Hong Kong Bill of Rights Ordinance.  They argue that there is a threatened violation of Art.10 & 11 of the Hong Kong Bill of Rights.

42.The US Government and the SJ have taken no action since 2015 to register the ‘CFO 2015’ in Hong Kong.  For whatever meaning one could assign to the phrase ‘threatened violation’, the facts indicated that the US Government and the SJ have not threatened any violation of the rights of the defendants.

43.What happened in New Zealand as reported in Dotcom v Deputy Solicitor-General^[37] cannot assist the defendants.  That case was an application for judicial review by the defendants to challenge the decision of the AG of New Zealand to assist the US Government in applying for registration of the ‘CFO 2015’.  Mr. Walsh informs this court that the restraint order in New Zealand would expire in three years on 18 April 2015 after its registration in 2012 and an extension^[38].  This was the reason that the US Government sought to register the ‘CFO 2015’ in New Zealand to protect the restrained assets.  The situation in Hong Kong is different.  There is no expiry date for the ‘2012 HK restraint order’.  There is no need to register the ‘CFO 2015’ for the protection of the restrained assets in Hong Kong.

44.In the circumstances, I refuse to grant the declaration sought by the defendants.  There is no need to discuss the merits of the arguments on the doctrine of fugitive disentitlement.

45.However, I would like to comment on the following issues:

46.By virtue of s.28 of MLAO, on an application to register an external confiscation order, the Court of First Instance may register the order if (a) the civil feature order is in force and not subject to appeal; (b) the subject party has notice of the application and has sufficient time to prepare his defence; and (c) it is not contrary to the interests of justice to enforce the order in Hong Kong.

a.   A certificate by an appropriate authority of the place outside Hong Kong, stating that the requisite conditions have been satisfied, will be admissible as facts stated therein.^[39]

b.   A certified document, containing statement of evidence received in a court in the place outside Hong Kong, shall be admissible as evidence as any facts stated therein.^[40]

c.   The general scheme of MLAO is to minimize further arguments on the civil forfeiture order in the Hong Kong court.  There is no requirement for the court to examine its validity.  To do the contrary would be most time consuming and involve argument on foreign law.

d.   In the present case, the defendants had challenged the legality of the various provisions empowering civil forfeiture order during the hearing before Judge O’Grady.^[41]  They appealed against the ‘CFO 2015’ which was dismissed by the US Court of Appeal for the 4^th circuit on 9 November 2016.^[42]  The Supreme Court of the United States refused leave on 2 October 2017.^[43]  The ‘CFO 2015’ is final under US law.  Given this background, I have grave reservation whether this court in Hong Kong should revisit issues on the validity of the ‘CFO 2015’ and the constitutionality of the ‘doctrine of fugitive disentitlement’.  I do not think s.28(1)(c) contemplates such an exercise when considering whether to enforce the ‘CFO 2015’ in the interests of justice.

47.Mr. McCoy also relied on Art. 10 and 11 of the Hong Kong Bill of rights to challenge the constitutionality of the doctrine of fugitive disentitlement.  In my view, the rights protected under the Hong Kong Bill of Rights must have its equivalent under the US constitution^[44]. Given the reasoning in paragraph 46, I have grave reservation whether this court in Hong Kong should revisit these issues under MLAO.

48.In relation to the issues above, I respectfully agree with the reasoning of their Lordships in Government of the United States of America v Montgomery (No.2).^[45]

a.   In 1984, the defendant’s husband was convicted in the United States of fraud on the US Government.  An order was made that the shares in a Panamanian company into which he had placed part of the proceeds of the fraud be forfeited, but before the trial he had transferred most of the shareholding to the defendant.  He was sentenced to a term of imprisonment.  Restitution and forfeiture orders were made in the sum of US$7m or the value of the shares, whichever was the greater.

b.   In 1991 a US District Court ruled that the transfer of the shares to the defendant did not deprive the US Government of its interest in them and, in 1992, it made an order for discovery against the defendant, who had separated from her husband and taken up residence in England.

c.   The US Court of Appeal applied the doctrine of fugitive disentitlement and dismissed her appeal.

d.   The High Court in England held that it would not be contrary to the interests of justice to register the order, even though, because of the application of the doctrine, the order would have breached the requirements of article 6 of the ECHR^[46] if it had been made in a country which was a party to the Convention.  The High Court allowed the application to register.  The Court of Appeal upheld that decision.

e.   Dismissing the appeal of the defendant, the House of Lords held that even on the assumption that the operation of the fugitive disentitlement doctrine by the US court would have constituted a breach of article 6, the territorial limitation on the operation of the Convention to contracting states meant that registration of the US court order could not constitute a direct breach of article 6 as there had been no suggestion that hearing in UK had failed to meet any of the requirements of the article;

f.   Article 6 became indirectly engaged in a Convention state when removal of a person to a non-Convention state would expose that person to risk of suffering a flagrant denial of justice; that exception was capable of being applied to the enforcement in a Convention state of a judgment obtained in a non-Convention state;

g.   The fugitive disentitlement doctrine could not be described as a flagrant denial of the defendant's article 6 rights or a fundamental breach of the article's requirements.  The defendant was by no means shut out from taking part in the proceedings.  When the issue of fugitive disentitlement was raised by the court she was able to file a brief relating to this issue.  The merits of her contentions had been fully considered at first instance and on appeal.

h.   Under this doctrine the court had a discretion to refuse to hear or decide the appeal, on the ground that the defendant was a fugitive from justice.

49.In Polanski v Condé Nast Publications Ltd.^[47], Mr. Polanski sought to give evidence in France by means of video link during his libel suit against Condé Nast.  He was afraid that he might be arrested in England and extradited to US from where he had escaped justice.  The House of Lords^[48] allowed Mr. Polanski to use video link to give evidence.  The majority acknowledged the mutual interests of countries to bring fugitive to justice.  Their Lordships however stressed the need to assist a fugitive in the protection of his civil rights.  Lord Nicholls stressed that it was wholly unacceptable to hold that so long as a fugitive was “on the run” from the criminal law, his property and other rights could be breached with impunity.

50.The ruling in Polanski is not in conflict with Montgomery (No.2).  In the latter case, the House of Lords stressed that the defendant was by no means shut out from taking part in the US proceedings.  She was represented and her contentions were fully canvassed.  The doctrine of fugitive disentitlement was not a flagrant denial of the defendant’s rights.  The ‘harshness’ ^[49] disapproved in Polanski had not occurred in Montgomery (No.2).

51.In my view, the reasoning in Montgomery (No.2) is applicable to the defendants in the present case albeit that they were not in contempt.  They were found actively avoiding criminal proceedings by Judge O’Grady in the US District Court.^[50]  The Court of Appeal of the 4^th Circuit upheld these findings.  They were represented and able to argue their case before the US courts.  They were not shut out from any of the US proceedings.

52.In the circumstances, I make the following orders:

(a)   Application to discharge the ‘2012 HK restraint order’ refused.

(b)   Application for declaration refused.

(c)   Costs order nisi of the hearing be to the SJ.

Mr. Wayne Walsh, SC, leading Ms. Ada Chan, SGC and Ms. Natalie Sin, GC, instructed by the Department of Justice, for the Secretary for Justice

Mr. Gerard McCoy, SC, leading Mr. Douglas Clark, Mr. Albert N B Wong and Ms. Joyce Y Y Kwok, instructed by Dentons Hong Kong LLP, for the 1^st and 2^nd defendants