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HCMP 116/2012
[2019] HKCFI 1538
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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IN THE MATTER OF THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE (CAP. 525) [Sections 5, 27, 28 and Schedule 2] |
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and |
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IN THE MATTER OF THE HONG KONG BILL OF RIGHTS ORDINANCE (CAP 383) [Section 6(1)(b)] |
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KIM DOTCOM, also known as KIM SCHMITZ,
TIM VESTOR and KIM TIM JIM VESTOR
(A National of Germany and Finland and
a Resident of Hong Kong and New Zealand) |
1st Defendant |
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MEGAUPLOAD LIMITED
(A Hong Kong Company) |
2nd Defendant |
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VESTOR LIMITED
(A Hong Kong Company) |
3rd Defendant |
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FINN HABIB BATATO
(A National of Germany) |
4th Defendant |
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JULIUS BENCKO
(A National of Slovakia) |
5th Defendant |
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SVEN HENDRICK MICHAEL THIES ECHTERNACH
(A National of Germany) |
6th Defendant |
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MATHIAS ORTMANN
(A National of Germany) |
7th Defendant |
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ANDRUS NOMM
(A National of Estonia) |
8th Defendant |
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BRAM VAN DER KOLK
(A National of the Netherlands) |
9th Defendant |
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JOHN PAUL LLASUS LO
(A National of the Philippines) |
10th Defendant |
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BART RENE ANNA VAN LANCKER |
11th Defendant |
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LOVELY ROANN VARGAS |
12th Defendant |
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WAYNE TEMPERO |
13th Defendant |
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MEGAMUSIC LIMITED
(A Hong Kong Company) |
14th Defendant |
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MEGAPAY LIMITED
(A Hong Kong Company) |
15th Defendant |
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MEGAMEDIA LIMITED
(A Hong Kong Company) |
16th Defendant |
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A LIMITED
(A Hong Kong Company) |
17th Defendant |
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N1 LIMITED
(A Hong Kong Company) |
18th Defendant |
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RNK MEDIA COMPANY
(A Hong Kong Company) |
19th Defendant |
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MEGASTUFF LIMITED
(A New Zealand Company) |
20th Defendant |
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Before: Hon Li J
Date of Hearing: 29 May 2019
Date of Decision: 29 May 2019
Date of Judgment: 14 June 2019
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D E C I S I O N
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1.This is an application by the 1st and 2nd defendants for leave to appeal against the Order of this court dated 29 March 2019. This court refused to discharge the restraint order granted by Madam Justice Bokhary on 18 January 2012.
2.In gist, the grounds of appeal in the summons dated 12 April 2019 is as follows:
(a) This court erred in holding that the decision by the Secretary for Justice to provide assistance under the Mutual Legal Assistance Ordinance CAP. 525 (‘MLAO’) should be challenged by way of judicial review.
(b) Given that the Secretary for Justice had a continuing duty under MLAO, this court was wrong to adopt the time limit as in judicial review proceedings.
(c) This court should have adopted the narrow construction in “Aronson”.
(d) It is in the interest of justice to grant leave to appeal.
3.The Secretary for Justice argues the following:
(a) Given the statutory scheme, application to challenge the decision of the Secretary of Justice to provide assistance under MLAO should be by way of judicial review.
(b) While the Secretary for Justice had a continuing duty to assess the provision of assistance under MLAO, there was no change of circumstances in this case.
(c) The “conduct test” should be adopted under s.5(1)(g) MLAO.
(d) There was no great public interest to grant leave of appeal.
4.This court refuses leave to appeal for the following reasons:
(a) The decision of the Secretary for Justice to provide assistance under the MLAO is a statutory duty which should be challenged by way of judicial review. The defendants are seriously out of time with no explanation whatsoever.
(b) While the Secretary for Justice has a continuing duty to review her decision to provide assistance under s.5 MLAO, there is no significant change of circumstances in the present case requiring review.
(c) The application for discharge under s.7(5), Schedule 2, MLAO does not require a court to re-consider the factors under s.5 MLAO. If that was the case, a court would need to be satisfied, in all applications of restraint orders under s.7(1), Schedule 2 MLAO, that the grounds under s.5 MLAO were met.
(d) In Re Rafat Ali Rizvi and others HCMP 2257/2010, the court considered the registration of an external confiscation order under s.28 MLAO. Deputy Judge Yau (Yau J then was) ruled that he should consider whether the dual criminality principle, as stipulated under s.5(1)(g) MLAO, was satisfied.
(e) Under s.28(1)(c) MLAO, in considering the registration of an external confiscation order, a court has to determine whether enforcing the external confiscation order would not be contrary to the interests of justice. Deputy Judge Yau was therefore entitled to consider the dual criminality principle in the context of assessing the interests of justice.
(f) The Rizvi case does not support the proposition that in applying for discharge under s.7(5), Schedule 2, MLAO, it is open to a defendant to challenge the decision of the Secretary for Justice to provide assistance under the MLAO. In my view, the Rizvi case is consistent with the reasoning in paragraph (c) above.
(g) The narrow construction in “Aronson” is contrary to the plain meaning of s.5(1)(g) MLAO.
(h) There is no issue of important public interests for granting leave under s.14AA(4)(b) High Court Ordinance.
5.I make the following orders:
(a) Leave to appeal is refused.
(b) Costs of this application be to the Secretary for Justice per the statement of costs for summary assessment.
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(Patrick Li) |
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Judge of the Court of First Instance |
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High Court |
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. Albert N B Wong, instructed by Dentons Hong Kong LLP, for the 1st and 2nd defendants
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