The Secretary for Justice v. Tam Kit-i

CACV 103/2022

[2022] HKCA 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 103 OF 2022

(ON APPEAL FROM HCMP 54 OF 2011)

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Before:  Hon Cheung, G Lam and Chow JJA in Court

Dates of Written Submissions:  22 April, 10 May, 24 May and 31 May 2022

Date of Judgment:  29 July 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 24 March 2022, the Court of Appeal gave its judgment (“the Judgment”) granting Madam Tam leave to appeal and allowing her appeal against the order of Campbell-Moffat J (“the Judge”) dated 2 December 2019 whereby the Judge refused to discharge a restraint order originally made on 14 January 2011 by V Bokhary J and continued on 30 March 2011 (“the OSCO Restraint Order”) under s 15(1) of the Organized and Serious Crimes Ordinance, Cap 455 (“the OSCO”).

2.By a notice of motion dated 31 March 2022, the Secretary for Justice (“SJ”) applied for a certificate under s 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that a point of law of great and general importance is involved in the Judgment.

3.By another notice of motion dated 21 April 2022, SJ applied for leave to appeal the Judgment to the Court of Final Appeal under s 24 of the Hong Kong Court of Final Appeal Ordinance on the ground that the question involved in the intended appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.The same question of law, said to be of great, general or public importance, is identified in the two notices of motion, namely:

“What is the correct construction of section 2(16A) and section 15(5)(b) of the Organized and Serious Crimes Ordinance (Cap. 455) (‘the Ordinance’)? In particular, where a Court, in considering a confiscation application made pursuant to section 8(1)(a)(ii)(B) and section 8(1)(b) of the Ordinance, is not satisfied that the person concerned has absconded and that section 8(1)(a)(ii)(B) is applicable, and for that reason decides not to make the confiscation order sought, is it correct for the Court not to find the confiscation application as being ‘concluded’ and not to discharge the restraint order concerned?”

5.On 28 April 2022, the court, with the consent of the parties, directed that the 2 notices of motion be disposed of together without an oral hearing.

6.The basic facts and the reasons for the Court of Appeal’s decision have been set out in the Judgment, and will not be repeated here. In the Judgment, the Court of Appeal decided that, upon the Judge’s rejection of SJ’s earlier application for a confiscation order (“the Confiscation Application”) on 10 August 2016, the OSCO Restraint Order was thereby discharged by virtue of s 15(5)(b) of the OSCO, which expressly provides that a “restraint order – shall be discharged on the conclusion of the … application concerned” (underlining added). In coming to this decision, the Court of Appeal considered it to be clear that the “application concerned” (ie the Confiscation Application) was concluded upon the Judge’s rejection of the Confiscation Application by virtue of s 2(16A)(a) of the OSCO, which provides that an “application for a confiscation order made in respect of a defendant where section 8(1)(a)(ii) … is applicable is concluded - if the Court of First Instance … decides not to make such an order, when it makes that decision”.

7.The principal argument raised by SJ in support of the present applications for a certificate or leave to appeal under ss 32(2) or 24 of the Hong Kong Court of Final Appeal Ordinance is as follows:

(1)  the relevant “pre-condition” for the making of a confiscation order under s 8(1)(a)(ii)(B) of the OSCO was not satisfied in the present case in view of the Judge’s finding that Madam Tam had not “absconded”;

(2)  hence, the Judge had no jurisdiction under the OSCO to hear the Confiscation Application, or make any decision at all on confiscation (including to “decide not to make such an order”) (see §§3-4 of Applicant’s Written Submission in support of Notice of Motion for a CFA Certificate dated 22 April 2022);

(3)  further and for the same reason, s 8(1)(a)(ii) was not “applicable” for the purpose of s 2(16A)(a); and

(4)  accordingly, there was no “conclusion” of the Confiscation Application.

8.In our view, the argument that the Judge had no jurisdiction to hear the Confiscation Application or make any decision on that application is not reasonably arguable. The Confiscation Application was an application made by SJ, and was premised upon SJ’s contention that Madam Tam had absconded. The issue of whether Madam Tam had absconded was an essential issue which the Judge had to determine as part and parcel of her decision on the Confiscation Application (see s 8(3)(c)(i)(A) of the OSCO). As it was, the Judge found against SJ on the issue of absconsion and, on that basis, rejected the Confiscation Application. We consider it to be clear that the Judge had jurisdiction to hear and determine the Confiscation Application, and that application was “concluded” upon the Judge’s decision not to make the confiscation order sought by SJ.

9.The rest of SJ’s arguments in support of the present applications are essentially the same arguments previously advanced to resist Madam Tam’s appeal. We do not consider SJ’s construction of ss 2(16A) and 15(5)(b) to be reasonably arguable.

10.Having reached this conclusion, it is unnecessary for us to consider whether the present case should strictly be regarded as a criminal cause or matter falling within the criminal jurisdiction of the Court of Final Appeal under Part III of the Hong Kong Court of Final Appeal Ordinance (as contended by SJ), or a civil cause or matter falling within the civil jurisdiction of the Court of Final Appeal under Part II of the Hong Kong Court of Final Appeal Ordinance (as contended by Madam Tam). We prefer to leave this matter for future consideration should it become necessary to do so.

11.In so far as the application for leave to appeal is based on the “or otherwise” limb under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, it is the well-settled practice of the Court of Appeal to defer consideration of such matter to the Appeal Committee of the Court of Final Appeal. We see no reason to depart from this practice in the present case.

12.For the foregoing reasons, the two notices of motion are dismissed with costs to Madam Tam, which we summarily assess at HK$300,000.

13.Lastly, SJ seeks an order, irrespective of the outcome of the two notices of motion, that the interim stay of execution of the Judgment previously granted by this Court be extended pending the determination by the Court of Final Appeal of (i) the Notice of Application for Leave to Appeal (in FAMC 13/2022) filed by SJ with the Court of Final Appeal on 19 April 2022 under the criminal route, and (ii) the final appeal in the event that leave to appeal is granted by the Court of Final Appeal under the criminal or civil route. In view of the fact that SJ’s intended appeal, in the event of leave to appeal being granted by the Court of Final Appeal under either the criminal or civil route, may be rendered nugatory in the absence of an interim stay of execution of the Judgment, we are prepared to, and do, grant an interim stay of execution pending the outcome of SJ’s application(s) for leave to appeal to the Court of Final Appeal. The question of whether there should be any further stay of execution thereafter, in the event that leave to appeal is granted, is a matter for consideration by the Court of Final Appeal.

Mr William Tam, SC, Deputy Director of Public Prosecutions, and Mr Douglas Lau, Senior Public Prosecutor (Ag), of Department of Justice, for the Applicant

Mr Nigel Kat, SC, and Mr Benson Choi, instructed by H M Tsang & Co, for the Respondent