Lai Chee Ying v. Commissioner of Police

HCMP 1218/2020

[2022] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

________________________

________________________

BETWEEN

________________________

Before: Hon Wilson Chan J in Chambers

Date of last written submissions: 22 March 2022

Date of Decision: 25 March 2022

________________________

D E C I S I O N

________________________

INTRODUCTION

1.There are two applications before the court:

(1) The plaintiff’s application to seek an extension of time of 42 days to serve the P’s Digital Schedule in relation to the Plaintiff’s Copy identified as 498 (ie in respect of White iPhone 11 Pro Max (TEPE B0190674) (the “White iPhone”)) received by the plaintiff on 19 January 2022 by way of Summons filed herein on 4 March 2022 (the “White iPhone Time Summons”); and

(2) The plaintiff’s application to seek an extension of time also of 42 days to serve the P’s Digital Schedule in relation to the Plaintiff’s Copy identified as 499 (ie in respect of Green iPhone 11 Pro Max (TEPE B0190676) (the “Green iPhone”)) received by the plaintiff on 11 February 2022 by way of Summons filed herein on 10 March 2022 (the “Green iPhone Time Summons”).

BACKGROUND

2.On 10 August 2020, the Police searched the plaintiff’s residential address and seized various materials (the “Materials Seized”) therein, including the plaintiff’s White iPhone and Green iPhone.

3.On 13 August 2020, since the Materials Seized may contain journalistic materials (“JM”) or be subject to legal professional privilege (“LPP”), the plaintiff commenced the present proceedings to seek directions for, inter alia, inspection and examination of the Materials Seized and determination of whether the Materials Seized are journalistic materials or subject to LPP.

4.This court made an Order dated 19 November 2020 as varied on 26 February 2021 (the “Protocol”) setting out the protocol for the examination and identification of the LPP and JM in the Materials Seized.

White iPhone

5.Pursuant to the Protocol, the original deadline for the plaintiff to serve the P’s Digital Schedule in relation to the White iPhone was 9 February 2022.

6.The parties agreed to extend the deadline to 9 March 2022 for the plaintiff to serve the P’s Digital Schedule in relation to the White iPhone and filed a Consent Summons on 21 February 2022 (the “Consent Summons”) accordingly. The court then made an order in terms of the Consent Summons on the same day.

7.On 4 March 2022, the plaintiff filed the White iPhone Time Summons, seeking a further 42-day time extension.

Green iPhone

8.The original deadline for the plaintiff to serve the P’s Digital Schedule in relation to the Green iPhone was 4 March 2022.

9.On 1 March 2022, rather than taking out an application for time extension, the plaintiff merely wrote to the defendant (the “Commissioner”) requesting further time. The extension sought was for 28 days, ie by 1 April 2022.

10.It was not until after the court’s unless order dated 8 March 2022 that the plaintiff took out the Green iPhone Time Summons on 10 March 2022, now seeking a much longer extension of 42 days.

GROUNDS FOR TIME EXTENSION

11.The plaintiff has put forward three main grounds in support of his time extension applications, which are common in respect of the applications regarding the White iPhone and the Green iPhone.

12.Enormous amount of data - The plaintiff submits that the White iPhone and the Green iPhone contain enormous amount of data. Further time is genuinely required to physically review the content therein and for the plaintiff’s solicitors to be able to provide proper legal advice to the plaintiff.

13.Difficulties in taking instructions - The plaintiff is currently remanded in Stanley Prison in relation to other criminal cases. The plaintiff submits that there are considerable difficulties for the plaintiff’s solicitors to take instructions from the plaintiff, as further time will be required to arrange legal visit to the plaintiff, especially in the midst of the recent outbreak of the COVID-19 pandemic in Hong Kong. The Correctional Services Department (“CSD”) has suspended all legal visits for the period from 7 March 2022 to 20 March 2022 in light of the recent epidemic development.

14.Interruptions to business operation - During February and March 2022, various staff members of the plaintiff’s solicitors were tested positive for COVID-19. As a result, the office of the plaintiff’s solicitors was closed on several occasions for disinfection and deep cleaning, thereby causing significant interruptions to the operation of the plaintiff’s solicitors.

15.The White iPhone Time Summons and the Green iPhone Time Summons are opposed by the Commissioner. The Commissioner submits that the three main grounds relied on, namely: (i) the volume of data; (ii) the plaintiff’s incarceration; and (iii) the public health situation are unmeritorious. Further, if an extension is to be granted, the court should impose an unless order.

DISCUSSION

16.I agree with the plaintiff’s submissions made in reply that there has been a change in circumstances since entering the Consent Summons in February 2022, namely: (i) the suspension of legal visits announced by the CSD on 4 March 2022; and (ii) the public health situation in Hong Kong has also rapidly deteriorated since 21 February 2022, thereby affecting the work efficiency of the plaintiff’s legal team.

17.Moreover, the recent announcement by the CSD on 18 March 2022 clearly stated that official visits would only be resumed on a limited basis from 24 March 2022 to 24 April 2022, and the visit arrangements may be subject to change according to the epidemic developments in correctional institutions.

18.In all the circumstances of this case, I would extend the time for the plaintiff to serve the P’s Digital Schedule both in respect of the White iPhone and the Green iPhone to 13 April 2022 (ie an extension of 35 days for the White iPhone from the original deadline of 9 March 2022, and an extension of 40 days for the Green iPhone from the original deadline of 4 March 2022).

19.I note that the new deadline of 13 April 2022 is 14 days more generous than the one proposed by the Commissioner, and is in fact more generous than the original time extension sought by the plaintiff in respect of the Green iPhone (see: paragraph 9 above).

20.As submitted by the Commissioner, the plaintiff has a demonstrable history and pattern of failure to meet deadlines to serve the plaintiff’s Schedules pursuant to the Protocol (see: the summary table at page C/65 of the Hearing Bundle). These delays ranged from 75 to 97 days. In the circumstances, an unless order is necessary to ensure the proper conduct of these proceedings and instill a necessary sense of discipline in the plaintiff’s compliance of court-imposed deadlines: Wong Wai Keung v Commissioner of Police [2021] HKCFI 3609, §5.

DISPOSITION

21.For the reasons set out above, I order as follows:

“1. Unless the plaintiff serves the P’s Digital Schedules in respect of the Plaintiff’s Copies identified as 499 (Green iPhone 11 Pro Max (TEPE B0190676)) and 498 (White iPhone 11 Pro Max (TEPE B0190674)) by 3:30 pm on 13 April 2022:

(1) the plaintiff shall be debarred from serving any P’s Digital Schedule in respect of the relevant Plaintiff’s Copy(ies), and his legal professional privilege and journalistic material claims in respect of materials covered by the said Plaintiff’s Copy(ies) 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(ies) of the said Plaintiff’s Copy(ies).

2. Notwithstanding paragraph 3 of the Annex to the protocol as ordered by the Honourable Mr Justice Wilson Chan dated 19 November 2020 and varied by the Order of the Honourable Mr Justice Wilson Chan dated 26 February 2021 (the “Protocol”), unless the plaintiff and/or the plaintiff’s Designated Representatives attends Ma On Shan Police Station for the purpose of compliance of paragraph 3(a)-(c) of the Annex to the Protocol, within 3 working days of the plaintiff’s service of the P’s Digital Schedules referred to in the preceding paragraph:

(1) The plaintiff shall be deemed to have waived his right to have his Designated Representatives be present; and

(2) The defendant shall be at liberty to conduct extraction (under paragraph 3 of the Annex to the Protocol) in respect of the relevant P’s Digital Schedule(s) referred to in the preceding paragraph, in the absence of the plaintiff and the plaintiff’s Designated Representatives.

3. Costs of and incidental to the Summonses be to the defendant, such costs are to be taxed if not agreed on a party-and-party basis.”

22.Paragraph 2 of the above order is to ensure that the Police will have an early opportunity to review and follow up on those parts of the materials on which the plaintiff in fact makes no LPP/JM claim.

Messrs Robertsons, for the plaintiff

Mr Alan Wong, SGC (Ag) of the Department of Justice, for the defendant