Tsl and Others v. Commissioner of Police

HCAL 191/2021

[2021] HKCFI 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 191 OF 2021

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Before: Hon Chow J in Chambers (Not Open to Public)

Date of Hearing: 3 March 2021

Date of Decision: 8 March 2021

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D E C I S I O N

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INTRODUCTION

1.This is an application by the Applicants for an order, inter alia, that (i) unless and until a court otherwise orders, they be granted anonymity throughout these judicial review proceedings; and (ii) unless with the leave of the court, access to the documents in connection with these proceedings be restricted to the parties to these proceedings and their legal representatives (“the Application for Anonymity”).

BRIEF BACKGROUND

2.In this decision, the Applicants will respectively be referred to as “A1”, “A2”, “A3” and “A4”.

(i)     Freezing of accounts since around December 2020

3.The Applicants are Hong Kong permanent residents, and are members of the same family.  A1 and A2 are brothers, A3 is their mother, and A4 is A2’s wife.  They hold monies in a number of accounts (“the Accounts”) with various banks (“the Banks”) in Hong Kong, as particularized in §9 of the Form 86.

4.In December 2020, the Applicants discovered that the Accounts had become disabled, and they were unable to withdraw funds held in the Accounts.

5.Through their solicitors, Messrs O Tse & Co (“OTC”), the Applicants enquired with the Banks as to, inter alia, the reasons for the freezing and/or restriction of the Accounts.  The replies from the Banks were not particularly informative.  OTC were told by the Banks that (i) they were looking into the matter and would reply as soon as they were able to, (ii) they were “prohibited by law from disclosing information about the subject matter of [OTC’] inquiry”, or (iii) they were “not in a position to accede to [OTC’s] request”.  In another reply to A1 by one of the Banks, he was told that “[f]rom time to time, we conduct reviews of our products, services and accounts.  In the course of these reviews, we consider various factors.  We regret to inform you that, following an in-depth review and considering the various factors, your account services has been suspended and under review.”

6.The Applicants came to the view, or belief, that “letters of no consent” had been issued by the Commissioner of Police (“the Commissioner”) in respect of the Accounts (“the Letters of No Consent”).

7.By a letter dated 8 December 2020, OTC asked the Police, inter alia, to confirm whether “no consent” letters had been issued to the Banks in respect of the Accounts, and provide the legal basis, including the legal provisions relied upon, as well as the reasons (including what offence was alleged or suspected to have been committed and by whom and how it related to any or all of the Accounts), for issuing the “no consent” letters.

8.By a letter dated 14 December 2020, one Mr Cheung (for the Commissioner of Police) informed OTC that the Applicants were “currently under investigation by Financial Investigations Division, Narcotics Bureau for a case of ‘Dealing with property known or believed to represent proceeds of indictable offence’”, and asked OTC to ask the Applicants to contact the Police.  No further substantive reply was given by the Police despite further letters from OTC.

9.The Applicants contend that it may be inferred, inter alia, that the Commissioner:

(1)  has issued “no consent” letters to the Banks, thereby causing the freezing and/or restriction of the Accounts; and

(2)  has decided not to accede to the Applicants’ request to provide reasons, including the legal basis, for the issuance of the “no consent” letters.

10.The Applicants further say that they have suffered significant financial losses as a result of the freezing of the Accounts, the details of which are not relevant for the present purpose.

(ii)     SFC investigations in 2019 and 2020

11.In 2019 and 2020, searches were conducted by the Securities and Futures Commission (“SFC”) at premises occupied and/or owned by the Applicants, in connection with what were said to be suspected offences under the Securities and Futures Ordinance, Cap 571 (“SFO”).

(1)  On or around 31 July 2019, two search warrants (“the 2019 Search Warrants”) were executed by the SFC at premises occupied and/or owned by (i) A1 and A3 (“Premises 1”), and (ii) A2 and A4 (“Premises 2”) respectively in connection with, inter alia, suspected offences contrary to ss 274, 275, 278, 295, 296, 299 and/or 300 of the SFO.  The 2019 Search Warrants stated that the investigation related to suspected conduct during or around the period from 7 September 2018 to 26 July 2019, and during or around the period from 7 September 2018 and 5 November 2018.

(2)  Subsequently, the SFC requested all Applicants to attend cautioned interviews.  However, after several postponements, the SFC eventually stated that “other arrangements” would be made.

(3)  On or around 25 November 2020, two search warrants (“the 2020 Search Warrants”) were executed at Premises 1 and another premises occupied and owned by A1 (“Premises 3”) in connection with suspected offences contrary to ss 274, 275, 278, 295, 296, 299 and/or 300 of the SFO during or around the period from 29 August 2019 to 31 July 2020.

12.Up to the date of the Form 86 (18 February 2021), the SFC had not invited any of the Applicants for interview again, or arrested the Applicants, or charged or commenced proceedings against them.  Also, the Applicants did not know at that time whether the Letters of No Consent were related to the matters investigated by the SFC.

(iii)    Application for leave to apply for judicial review

13.On 18 February 2021, the Applicant made the present application for leave to apply for judicial review of (i) the Commissioner’s decision on or around 1 December 2020 to issue, and maintain, “letters of no consent” (together with the operation of the No Consent Regime) in respect of the Accounts, and (ii) the Commissioner’s failure or refusal to consent to the withdrawal of any funds from the Accounts.  Six grounds of judicial review are raised in the Form 86:

(1)  The issue and maintenance of the Letters of No Consent are tainted by procedural impropriety and unfairness, in that both before and after the issue of the Letters of No Consent, no reasons have been provided, and there is no opportunity for a fair hearing or other opportunity to make meaningful representations.

(2)  The Letters of No Consent are ultra vires the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”), which does not confer power on the Commissioner to operate a de facto property freezing regime by the use of such letters and attendant procedures.

(3)  The interference with the Applicants’ constitutional rights to (i) the use of one’s property under BL 6 and 105, (ii) a fair hearing under BOR 10, (iii) access of legal advice and to a court under BL 35 and BOR 10, and (iv) privacy and family under BOR 14, by the Letters of No Consent are not prescribed by law.

(4)  The Letters of No Consent breach the Applicant’s right to a fair hearing.

(5)  The Letters of No Consent disproportionately interfere with the Applicants’ property rights (under BL 6 and 105), and rights to privacy and family (under BOR 14).

(6)  The decisions under challenge are unlawful in that the Letters of No Consent cause a blanket freeze, without any distinction as to which assets are or could be alleged to represent the proceeds of crime and which assets could not.

THE APPLICATION FOR ANONYMITY

14.Prior to the filing of the Form 86 herein, the Applicants made an ex parte application for an anonymity order on paper. Pursuant to the court’s directions on 1 February 2021, the Applicants issued an inter partes summons on 17 February 2021 to seek the order referred to at the beginning of this decision.

15.In A1’s 2^nd Affirmation filed on 22 February 2021, three grounds are raised in support of the application:

(1)  The Applicants are unaware of the scope or nature of the police investigation (other than it is said to relate to suspected money laundering), as well as any investigation by the SFC, and the Applicants want to take care that their bringing of these proceedings could (or would) not inadvertently result in the release of information that could tip off any other possible persons of interest in the investigation.

(2)  There is a possibility that the Applicants, or some of them, could face a criminal prosecution in the future.  It would not be fair to them for information about the case, including the nature of any allegations against them at this stage, to be in the public domain.

(3)  If the Applicants, or any of them, is/are not later prosecuted, it would again not be fair that their names should be associated with serious criminal allegations that were later not proceeded with.

16.By a letter to the Department of Justice dated 23 February 2021, OTC asked whether the Commissioner would consent to an order that the identities of the Applicants and the details of the criminal investigation not be made public.  The Department of Justice replied substantively by a letter dated 1 March 2021, stating that there was “no good justification for any restriction on open administration of justice”, and that it was not in a position to give consent to the Application for Anonymity.  The Department of Justice also stated that it had been instructed that “the investigation is at a stage where the Police consider there to be no real concern of tipping off any other possible persons of interest”.  As I understand it, the Department of Justice does not act for the SFC, and there is no similar confirmation given on behalf of the SFC in respect of the SFC investigations referred to in the Form 86.

17.At the hearing on 3 March 2021, Mr Parker on behalf of the Applicant submits that there are three aspects to the present Application for Anonymity:

(1)  disclosure of private personal information of the Applicants contained in the Form 86;

(2)  disclosure of the current investigations of the Applicants by the Police and the SFC; and

(3)  possible impact on the Applicants in the event that (i) they should be prosecuted later, or (ii) no further action will be taken against the Applicants by the Police and SFC.

18.After the conclusion of the hearing, OTC wrote to the court on 4 March 2021 and informed the court that the Police, together with the SFC, had arrested all 4 Applicants on “suspicion of dealing with property known or suspected to be the proceeds of an indictable offence” on 4 March 2021.

RELEVANT LEGAL PRINCIPLES

19.The principle of open administration of justice is well established in this jurisdiction.  It is a fundamental principle, although it is not absolute, as made clear by BOR 10, which states as follows:

“… In the determination of … his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered … in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

20.The applicable principles for restriction on open administration of justice was considered comprehensively by the Court of Appeal in Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354.  The following principles were stated in the judgment of Cheung CJHC (as he then was), with whom Lam JA (as he then was), agreed:

“[19] First and foremost, ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’: R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, per Lord Hewart CJ. Open administration of justice is a fundamental principle of common law: Scott v Scott [1913] AC 417; R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227; Re BU [2012] 4 HKLRD 417. It is of great importance, from the perspective of administration of justice, for a number of reasons. The public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966, 977E/F‑G.

[20] Second, from the litigants’ perspective, open justice also gives effect to their rights to a public hearing guaranteed in article 10 of the Hong Kong Bill of Rights.

[21] Third, from the public’s point of view, open justice, which carries with it the freedom to attend proceedings and to report on them, gives substance to the media’s right to freedom of expression including the freedom to seek and impart knowledge, guaranteed under article 16(2) of the Hong Kong Bill of Rights. Likewise, it enables the public to enjoy their right to seek and be imparted with knowledge guaranteed under the same article.

[22] Fourth, all this means that any restriction on open administration of justice necessarily represents a compromise of these important interests, rights and freedoms, and must be justified by considering and balancing all pertinent interests, rights and freedoms, including in particular those mentioned above.

[23] Fifth, the case law has firmly established that the following considerations or matters do not by themselves justify any restriction on open administration of justice:

(1) Publicity of litigation leading to embarrassment and inconvenience: Re Wong Tung‑kin [1989] 1 HKLR 93; Ex parte New Cross Building Society, at p 235F.

(2) Publicity leading to economic damage, even very severe economic damage: R v Dover Justices, Ex parte Dover District Council and Wells (1992) 156 JP 433.

(3) Professional embarrassment and possible damage to profession reputation: Ex parte Kaim Todner, at pp 975H‑976C.

(4) The parties’ agreement that the proceedings be held in private: Ex parte Kaim Todner, at p 977 C/D‑D/E.

(5) The mere fact that the subject proceedings etc which gave rise to a judicial review application were held in private: Re The Takeovers & Mergers Panel [1996] 3 HKC 379; Sit Ka Yin Priscilla v Equal Opportunities Commission [1998] 1 HKC 278.

…..

[26] Sixth, however, open justice is, from the perspective of proper administration of justice, just a means, albeit an important one, to an end, that is, the doing of justice between the parties concerned: Scott v Scott, at p 437; Ex parte New Cross Building Society, at p 235E. It therefore follows that where open administration of justice in a case would frustrate that ultimate aim of doing justice, it is a most important if not decisive consideration to take into account when balancing the relevant interests, rights and freedoms involved, to decide whether open justice should be restricted, and if so, by what means and to what extent.

[27] The case law has very often expressed this in terms of a requirement of ‘necessity’, that is, where justice would be frustrated if open administration of justice in a particular case is not restricted, then, to the extent necessary to prevent that from happening, there may be restriction on doing justice openly.

…..

[31]  Seventh, apart from the interests of justice, there are other similarly important considerations that may justify restriction on open justice. Thus article 10 of the Hong Kong Bill of Rights also mentions ‘reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of all parties so requires’ as exceptions to the requirement of a public hearing. See, for instance, In re Guardian News and Media Ltd [2010] 2 AC 697 (right to respect for private and family life).

[32]  Eighth, where justice can be administered openly in the case itself, but to do so would or might jeopardise some right or interest of one or both of the parties outside of the case, whether open justice should be restricted and if so, the manner and extent of restriction, must be considered by conducting the balancing exercise already described. One common example is cases concerning refugees or torture claimants where it is said that the life, limb or liberty of the refugee or torture claimant or their family is or may be put at risk in the absence of some form of restriction on open justice: R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 4 All ER 975; Re BU.

…..

[34]  Ninth, there are other miscellaneous but by no means insignificant considerations that, if relevant, should be taken into account in conducting the balancing exercise. For instance, the nature of the proceedings is relevant: Ex parte Kaim Todner, at p 978C‑D/E. In particular, proceedings by way of judicial review relate to decisions made in the public field, and as a general rule, they must be held in public, as the public has a legitimate interest to be informed about them, unless justice would be denied: Re The Takeovers & Mergers Panel, at p 381I; Sit Ka Yin Priscilla v Equal Opportunities Commission, at p 281D. This is an additional consideration to the general consideration about the media’s and the public’s right to know based on article 16(2) of the Hong Kong Bill of Rights discussed in paragraph 21 above.

[35]  Moreover, it is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of proceedings: Ex parte Kaim Todner, at p 978D/E‑G.

[36]  Tenth, where restriction on open justice is justified, it may take many forms, depending on how all pertinent interests, rights and freedoms should best be balanced.  For instance, in the present case, the applicant asks for a blanket order for the hearing to be held in camera.  Alternatively, it asks for a partial censor of the contents of the submissions to be ventilated in open court.  Sometimes, a court may impose reporting restrictions on proceedings held in public.  At other times, the court may simply restrict the identification of the parties involved in the proceedings: In re Guardian News and Media Ltd [2010] 2 AC 697; Re BU.”

21.In the specific context of an application for an anonymity order, further guidance can be found in the judgment of the Court of Appeal in Re BU [2014] 4 HKLRD 417, where a torture claimant who wished to challenge the Secretary for Security’s refusal to rescind a deportation order made against him sought an anonymity order regarding his identity.  The following principles are relevant for the present purpose:

(1)  per Cheung CJHC (as he then was) -

“[10] The starting point and general rule, both in theory and in practice, is that judicial proceedings are held in public and the parties are named in judgments. Article 10 of the Hong Kong Bill of Rights, which is based on article 14.1 of the International Covenant on Civil and Political Rights (‘ICCPR’), specifically provides that everyone shall be entitled to ‘a fair and public hearing’ by a competent, independent and impartial tribunal established by law. The article goes on to set out the circumstances under which the press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society; or when the interest of the private lives of the parties so requires; or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

[11] In practice, the matter is governed by Practice Directions 25.1 and 25.2. When proceedings are held in chambers not open to the public, the press and the public are excluded from attending. Reporting of the proceedings, including the naming of the parties involved, is also restricted.

[12] Secondly, the court’s jurisdiction to make an anonymity order to restrict publication of a person named in its proceedings is not in doubt: R (Kambadzi), para 6 per Lord Hope of Craighead DPSC. It overlaps with, but is not entirely the same as, the court’s power to hear proceedings in chambers not open to the public (with its entailing restriction on reporting) described in the preceding paragraph. Indeed an anonymity order is very often required in a piece of litigation where the trial or other hearings will be held in open court or in chambers open to the public with no restriction on reporting (save for the anonymity order).

[15] Thirdly, it has to be appreciated, however, that when such an order is made and the principle of open justice is thereby compromised, third parties’ (particularly the media’s) right to freedom of expression guaranteed under article 16 of the Hong Kong Bill of Rights, which includes freedom to seek, receive and impart information, is necessarily curtailed. The right to freedom of expression is not absolute. It may be restricted for respect of the rights or reputation of others or for the protection of national security or of public order, or of public health or morals: article 16(3).

[16] Fourthly, different rights are therefore in play. As a very general statement, the right to life and the freedom from torture [etc] should, of course, take precedence over the right to freedom of expression and the freedom of the press… As Lord Hope pointed out in R (Kambadzi), para 6, it is no longer the case that all asylum seekers as a class are entitled to anonymity in our courts. The making of such an order has to be justified.

[17] Finally, each application must therefore be examined on its own facts and issues…”

(2)  per Stock VP -

“[31] … In determining what the interests of justice require, the court should bear in mind the relevant competing components of that interest in such cases.

[32] On the one hand is the vital importance to the rule of law of open justice and, in this regard, I am attracted by the argument of counsel in In Re Guardian (para 13 above) at p 701, that publicity is a powerful deterrent to abuse of power; that it deters perjury; that open proceedings are a discipline upon the conduct of tribunals (and, it might be added, upon the conduct of advocates) and that it promotes public confidence in the impartiality, efficiency and fairness of the system. It is not only a possible deterrence to the making of false assertions but may lead to the disclosure of relevant evidence supportive of a particular case. Almost a century ago, it was described by Lord Shaw in Scott v Scott [1913] AC 417 at 473 as ‘a sound and very sacred part of the administration of justice.’ And so it remains.

[33] Yet the basis upon which the courts are occasionally compelled to retreat from wholly open justice is the same consideration, namely, the due administration of justice; for if it be shown that disclosure of information carries with it a substantial risk to the administration of justice, the court is likely to exercise its discretion to preserve confidentiality to the extent necessary. There are many circumstances which have over time been identified as permitting of or indeed requiring confidentiality – for example, to protect the interests of children or patients; where there is shown a need to preserve secret technical processes; where publicity would defeat the object of the hearing (see ‘The Law of Human Rights’ Clayton and Tomlinson 2d ed., Chapter 11); blackmail cases, since disclosure of the identity of a witness is likely to prejudice the administration of justice by discouraging victims from coming forward (ibid., p 1403); and where it is shown that a witness or party is at risk of harm from third parties. Quite apart from the reluctance of a court to lend itself, by sanctioning publicity, to the risk of such harm, the failure to protect a party in an instant case from the risk of harm jeopardises the administration of justice in that case by deterring that party from pursuing the case either at all or freely and in other cases by deterring putative parties from pursuing their rights in the courts.

[34] Given the importance of open justice and the ease with which allegations may be made, there is a burden on an applicant to justify the making of an anonymity order.  It is not justified by the mere ipse dixit of the applicant…”

22.It is clear that in our legal system, open administration of justice (including the identification of the parties to the proceedings) is the norm.  It is a fundamental principle which is intrinsically important and one which the court should generally uphold.  Any departure from that principle in any given case must be justified by reference to the specific facts and circumstances of the case in question.  A central consideration is whether the due administration of justice requires the principle of open administration of justice to be compromised.  In each case, the court has to conduct a balancing exercise to determine whether to depart from the principle of open administration of justice.

DISCUSSION

(i)     Disclosure of private personal information of the Applicants contained in the Form 86

23.Mr Parker says that the Form 86 contains copious private personal information of the Applicants, including their full names, bank account details (including account numbers and in some cases bank balances), securities account details, and home and work addresses.

24.In relation to the names and addresses of the Applicants, such information is normally required to be disclosed in any application for leave to apply for judicial review.  This requirement is a normal incidence of litigation in Hong Kong (see, for example, the requirement in Order 6, rule 5(1) of the Rules of the High Court requiring a writ to be indorsed with the plaintiff’s address, and the standard Form 86 in Appendix A to the Rules of the High Court which requires the name and address of the applicant to be stated).  As stated in §10 of the judgment of the Court of Appeal in Re BU, the starting point and general rule is that the parties are named in judgments.

25.The Form 86 in this case also identifies the names of the Banks and the account numbers of the Accounts (see §9 of the Form 86), the approximate combined total balance in the Accounts (see §11 of the Form 86), and gives details of some other bank accounts of the Applicants, including investment accounts with the Banks and account balances (see §§29 and 30 of the Form 86).  As I see it, the most significant information the public disclosure of which the Applicant may reasonably be concerned about would be the account numbers and bank balances.  It seems to me, however, that there is no necessity for the Applicants to spell out the account numbers or bank balances in the Form 86 for the purpose of advancing any of the intended grounds of judicial review. Even if such information is relevant, it should be ascertainable from the bank statements exhibited to A1’s first affirmation dated 11 February 2021 which it is not disputed is not open to public inspection without leave of the court.  I see no reason why the Form 86 cannot be drafted in such a way as to avoid explicit references to the account numbers or bank balances without in any way compromising the duty of full and frank disclosure on the part of the Applicants relied upon by Mr Parker.  Bearing in mind the intended grounds of judicial review raised in the Form 86, I am not satisfied, on the facts of this case, that the order sought by the Applicants is necessary or required to protect their private personal information which may reasonably be regarded as being of significance.  I do not consider that the order sought can be justified merely because the Applicants have pleaded some matters in the Form 86 when it is strictly necessary for them to do so.

(ii)     Disclosure of the current investigations by the Police and SFC

26.In respect of the Police investigations, the Commissioner has, through the Department of Justice, confirmed that they have reached a stage where secrecy is no longer of concern.

27.In respect of the SFC investigations, there is nothing disclosed on the face of the Form 86 that they are in any way related to the Police investigations or the Letters of No Consent.  Mr Parker also accepted, at the hearing, that the intended grounds of judicial review in this case could be advanced without referring to the SFC investigations pleaded in Section B.3 (§§36 to 40) of the Form 86 at all.

28.However, in view of the latest development referred to in §18 above, namely, that the Applicants were arrested by the Police and the SFC on 4 March 2021 on suspicion of dealing with property known or suspected to be the proceeds of an indictable offence, it is possible that the Police and SFC investigations concerned the same or related matters.  There is, however, no basis, or sufficient basis, to believe that disclosure of the matters pleaded in Section B.3 of the Form 86, or the fact that the Applicants have been investigated, or arrested, by the SFC, would raise any secrecy issues as far as the SFC is concerned.  I do not consider that it would be justifiable to grant the order sought merely on some speculative concerns that the SFC investigations of the Applicants are required to be kept secret at this stage.

(iii)    Possible impact on the Applicants

29.Mr Parker submits that “the publication of information about the case, if connected to the Applicants, would be available to potential jurors if the Applicants (of any of them) is/are later prosecuted for an offence.  Information connecting the Applicants to the investigations risks prejudicing any future criminal trial”.  In relation to this submission, my views are:

(1)  I have considered the information which has been disclosed in the Form 86, and am unable to see how such information would be prejudicial to the Applicants in respect of any future criminal prosecution against any of them for, presumably, the offence of “dealing with property known or suspected to be the proceeds of an indictable offence” or some similar or related offences.  The information contained in the Form 86 does not point to any criminality on the part of the Applicants, save that they have been under investigation by the Police and SFC.  Should they or any of them eventually be prosecuted for the aforesaid offence(s), the fact that they were under investigation by the Police and/or the SFC should not be relevant or controversial.

(2)  Even if the Applicants, or some of them, should be prosecuted for the aforesaid offence(s), it is far from certain that they would be tried in the High Court by a judge sitting with a jury.  Anyhow, even in such a scenario, there is no reason to believe that the jury will not heed the judge’s direction to consider only the evidence presented at the trial, and not to be influenced by whatever matters they may have heard or read outside the trial.

30.Mr Parker further submits that “[p]ublication of the investigative details also profoundly affects the Applicants themselves.  None of the Applicants has been charged with any offence, or even arrested.  Their reputations would be profoundly affected by reports identifying them in connection with what are on their face serious criminal matters”.  In relation to this submission, my views are:

(1)  The Form 86 does not, in fact, contain any significant or material details of the investigations of the Applicants by either the Police or the SFC.

(2)  As stated in §23(1) of the judgment of the Court of Appeal in Asia Television Ltd, publicity of litigation leading to embarrassment and inconvenience does not by itself justify any restriction on open administration of justice.

(3)  As further stated in §35 of the judgment of the Court of Appeal in Asia Television Ltd, the person who initiates the proceedings should generally be regarded as having accepted the normal incidence of the public nature of proceedings.

31.In all, conducting a proper balance exercise, I do not consider that the principle of open administration of justice in its full breadth should be departed from on the facts and circumstances of the present case.  In coming to this conclusion, it is worth repeating what was said by the Court of Appeal at §34 of its judgment in Asia Television Ltd: “proceedings by way of judicial review relate to decisions made in the public field, and as a general rule, they must be held in public, as the public has a legitimate interest to be informed about them, unless justice would be denied” (which I do not see to be the case here).

DISPOSITION

32.The Applicants’ summons dated 17 February 2021 is dismissed with costs (including the costs of the hearing on 3 March 2021) to the Commissioner, to be taxed if not agreed.  I see no sufficient reason not to make a costs order against the Applicants as submitted by Mr Parker on their behalf.

33.In all future proceedings herein, including any judgment or decision to be given by the court, the Applicants’ full names shall appear in the title to the proceedings.  This decision shall also be released for general circulation and publication on the Judiciary’s website in accordance with its normal practice.

34.I give the following further directions concerning the conduct of the application for leave to apply for judicial review:

(1)  There shall be a rolled-up hearing of (i) the application for leave to apply for judicial review, and (ii) the substantive application for judicial review.

(2)  The Commissioner shall have leave to file and serve evidence in opposition within 56 days from the date of this decision.

(3)  The Applicant shall have leave to file and serve evidence in reply within 28 days thereafter.

(4)  No further evidence may be filed without leave of the court.

(5)  The parties shall, within 28 days from the date of this decision, provide an estimate of the length of the rolled-up hearing and inform the court of the available dates of their counsel for the rolled-up hearing during the period from 1 July 2021 to 31 December 2021.  The court shall take into account, but will not be bound by, counsel’s diaries when fixing the date(s) of the rolled-up hearing.

Mr Tim Parker, instructed by O Tse & Co, for the 1^st to 4^th Applicants

Ms Vivian Kao, Government Counsel, of Department of Justice, for the Putative Respondent