Wong Wai Keung v. Commissioner of Police

HCMP 1222/2020

[2021] HKCFI 3002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

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D E C I S I O N

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1.By summons dated 11 August 2021 (“P’s Summons”), the plaintiff seeks a further extension of 6 months until 11 February 2022 to serve the 5 outstanding Plaintiff’s Digital Schedule and Lists of Accessed Files (“Outstanding Items”) on the defendant (the “Commissioner”). This is the 6^th application for extension of time made by the plaintiff.

2.On the last occasion when the plaintiff applied for an extension of time on 21 July 2021, this Court was not satisfied that the plaintiff had demonstrated sufficient justification for the 28-day extension sought.  Hence, the plaintiff was only granted a 21-day extension to serve all the 14 then outstanding items.  On that occasion, the Commissioner took the position that an unless order should be made.  Although the Court was of the view that no unless order should be made on the last occasion, the Court clearly indicated that it was prepared to give one last chance to the plaintiff to comply with the Protocol.  In view of the many extensions (over 7 months in total) that had already been granted to the plaintiff and the Court’s indication that the previous extension granted was the last chance, I agree it is totally unjustified for the plaintiff to now seek a 6-month extension for only 5 Outstanding Items.

3.Notably, the trial in DCCC 349/2021, being one of the criminal cases relating to the search and seizure of the items in question (and in which the plaintiff is one of the defendants) is scheduled to commence on 14 March 2022 (fixed for 25 days) with its Pre-Trial Review on 21 February 2022 and a for-mention hearing on 21 December 2021. An extension until 11 February 2022 will leave almost no time for the police to review the materials under the Outstanding Items for which the plaintiff is not claiming LPP or JM and conduct further investigations as necessary arising therefrom, and this will defeat the whole purpose of the Protocol and the search in question.

4.As recognised by the plaintiff himself, the Commissioner has a legitimate concern as to the need to investigate and deter any possible criminal act.  A balance must be struck between that and one’s fundamental right such as the right to make a LPP claim.

5.The plaintiff has put forward a number of reasons for seeking further extensions in his 6^th Affirmation dated 11 August 2021, but I accept the Commissioner’s submission that none of the reasons either on their own or taken together could possibly justify a 6-month extension.

6.The first reason put forward is the plaintiff’s health condition.  On the plaintiff’s evidence, other than a need to attend regular follow-up medical consultations for “monitoring” purpose, it does not appear that the plaintiff’s current health conditions would significantly affect his progress of reviewing documents.  In fact, the plaintiff had gradually resumed office work 6 months ago on 1 March 2021, and according to his latest evidence he had returned to his full-time job.

7.The second reason advanced by the plaintiff is the volume of digital materials.  In particular, the plaintiff estimated that 146 days is required to review images only.  I agree such an estimate is unrealistic and unjustified.  It is unreasonable and defies common sense for the plaintiff to suggest that he needs to review every single item in detail in order to confirm whether he makes a LPP or JM claim in relation thereto.  Further, there is no suggestion in his latest evidence that key word searches are deployed to expedite the process.

8.Importantly, amongst the 9 items which the plaintiff managed to complete in 21 days (ie from 21 July 2021 to 11 August 2021 when the plaintiff made his 6^th Affirmation), many are in the size of 500 GB.  The size of the 5 Outstanding Items (3 are in the size of 500 GB) are not significantly larger than the items which the plaintiff managed to complete in 21 days.  It is unimaginable and a total exaggeration that the plaintiff would require 6 months to review the remaining 5 Outstanding Items.

9.The plaintiff says that the number of files contained in the 5 Outstanding Items are in fact much, much larger.  But against that submission, the Commissioner pointed out that the number of files contained in all the Plaintiff’s Copies were known before the hearing on 21 July 2021, and yet on that occasion, the plaintiff only asked for a 28-day extension.

10.Moreover, in considering what is a reasonable timeframe, one must not lose sight of the fact that the plaintiff had already been given 5 extensions to deal with the digital items, which is a very generous timeframe even taking into account the plaintiff’s health condition and other relevant matters.

11.Further still, I was informed by Mr Pang that the plaintiff has in fact resigned from his full-time job since 7 September 2021.  Thus, he will have more time to complete the task required of him.

12.The third reason put forward is technical difficulties.  As far as it can be discerned, the complaints boil down to some extra waiting time as a result of loading time or crashing of computer/programme due to large file size.  The Commissioner submits and I agree that the timeframe already allowed is a generous one and these minor technical issues should not significantly hinder the plaintiff’s progress of review.

13.In the premises, I find that the plaintiff has failed to demonstrate that it is reasonable in the circumstances to grant him a further extension of anywhere near 6 months after the previous 5 extensions.

14.Taking into account all the relevant circumstances, I am only prepared to grant the plaintiff a further extension of 42 days counting from today.  In light of the Court’s clear indication on the last occasion, it must have been clear to the plaintiff that the extension granted on the last occasion was his last chance to put his case together.  It is appropriate for an unless order to be made.

15.Accordingly, I order as follows.

16.Unless the plaintiff serves the Plaintiff’s Digital Schedules and Lists of Accessed Files in respect of the Plaintiff’s Copies 72(2), 72(7), 78(1)A, 513 and 515A by 4 pm on 22 October 2021:

(1) the plaintiff shall be debarred from serving any Plaintiff’s Digital Schedule in respect of the relevant Plaintiff’s Copy and his LPP and JM claims in respect of the materials covered by the said relevant Plaintiff’s Copy and/or Further Plaintiff’s Copy shall be dismissed; and

(2) the defendant shall be at liberty to inspect, extract and/or otherwise access or use for investigation the relevant Working Copy and/or Further Working Copy of the said relevant Plaintiff’s Copy.

(Submissions re costs)

17.I do not think the plaintiff’s conduct is so below-par that he should be visited with a costs order on an indemnity basis.  Accordingly, I order that the costs of and occasioned by the P’s Summons be to the defendant, to be taxed on the party-and-party basis if not agreed.

Mr Lawrence Pang, instructed by Robertsons, for the plaintiff

Ms Ellen Pang, instructed by the Department of Justice, for the defendant