Tam Kit I v. The Secretary for Justice

CACV 103/2022

[2022] HKCA 1819

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 and Chow JJA in Court

Date of Judgment:  12 December 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 2 December 2019, Campbell-Moffat J (“the Judge”) made an order (“the Order”) refusing Madam Tam’s application to discharge a restraint order originally made by V Bokhary J on 14 January 2011 and subsequently continued on 30 March 2011 (“the OSCO Restraint Order”) under s 15(1) of the Organized and Serious Crimes Ordinance, Cap 455.

2.On 30 November 2021, Madam Tam re-applied to the Court of Appeal for leave to appeal against the Order, leave to do so having been refused by the Judge on 16 November 2021.

3.It was common ground of the parties that the Order was an interlocutory order and the appeal could properly be heard and disposed of by 2 Justices of Appeal.

4.On 24 March 2022, this Court gave its judgment (“the March Judgment”) granting Madam Tam leave to appeal and allowing her appeal against the Order upon the terms as set out at paragraph 35 of the March Judgment.

5.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 was involved in the March Judgment.

6.By another notice of motion dated 21 April 2022, SJ applied for leave to appeal the March 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 was 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.

7.On 29 July 2022, the Court of Appeal (constituted by Cheung, G Lam and Chow JJA) gave a judgment dismissing the two notices of motion.

8.On 16 September 2022, the Appeal Committee of the Court of Final Appeal granted SJ leave to appeal against the March Judgment ([2022] HKCFA 19). We have been informed that in the course of the hearing of the leave application before the Appeal Committee, the issue was raised as to whether the appeal against the Order was an appeal against an interlocutory or final order. If the former, the appeal could be heard by a 2-member Court of Appeal. On the other hand, if the appeal was against a final order, the appeal ought to have been heard by a 3-member Court of Appeal unless the parties had before the hearing filed a consent to the appeal being heard and determined by 2 Justices of Appeal under s 34B(4)(c) of the High Court Ordinance (Cap 4). The Appeal Committee expressed the concern that, in the latter situation, this Court would not have been properly constituted to hear the appeal, and suggested that, to overcome this potential problem, the procedure mentioned in Hip Hing Timber Co Ltd v Tang Man Kit (2004) 7 HKCFAR 212, at paragraphs 27, 31-33, could be followed, namely, for this Court to reissue its judgment de bene esse with the consent of the parties.

9.On 2 December 2022, the parties filed a Joint Consent for the appeal against the Order being heard and determined by 2 Justices of Appeal under s 34B(4)(c) of the High Court Ordinance.

10.For the reasons given in the March Judgment, this Court reissues its judgment de bene esse allowing Madam Tam’s appeal against the Order. The Order is set aside, and a declaration is granted that the OSCO Restraint Order was discharged upon the conclusion of the Confiscation Application (referred to at paragraphs 12 and 13 of the March Judgment) on 10 August 2016. We further make an order nisi that the costs of and occasioned by the application leading to the present judgment be in the cause of SJ’s appeal to the Court of Final Appeal.

H.M. Tsang & Co., Solicitors for the Appellant

Mr William Tam, SC, Deputy Director of Public Prosecutions of Department of Justice, for the Respondent