Read the full judgment text of FACV 7/2023 on BabelCite. This Court of Final Appeal judgment was delivered on 10 April 2024 before Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Collins of Mapesbury NPJ.
Criminal law – money laundering – anti-money laundering framework – Letters of No Consent (LNCs) – No Consent Regime – Organized and Serious Crimes Ordinance (Cap 455) (OSCO) – Police Force Ordinance (Cap 232) (PFO) – section 25(1) OSCO – section 25A OSCO – PFO section 10 – joint judgment of Chief Justice Cheung and Mr Justice Ribeiro PJ – appeal unanimously dismissed – family members suspected by SFC of market manipulation of over ten stocks between September 2018 and November 2020 – suspected profits of approximately HK$30-40 million transferred to four Hong Kong banks (Bank of China Hong Kong, Bank of East Asia, HSBC and Hang Seng Bank) – SFC referred matter to police – police informed banks of suspicions, requested STRs and indicated intention to issue LNCs – banks disabled accounts and issued STRs to JFIU – LNCs issued approximately November–December 2020 – restraint order obtained 11 October 2021 – Q1 ultra vires/improper purpose – whether No Consent Regime and LNCs ultra vires or issued for improper purpose – held not ultra vires – statutory authority for police actions found in PFO section 10, not OSCO – police actions mischaracterised as freezing of accounts – freezing is the bank's act, not the police's – PFO section 10 authorises measures to prevent and detect crimes and prevent injury to life and property – Q2 constitutional challenge – whether No Consent Regime complies with constitutional requirements for protection of property under BL6 and BL105, rights to private and family life under BOR14, and rights of access to legal advice and to the court under BL35 and BOR10 – including whether prescribed by law and proportionate – held constitutional – BL6 and BL105 property rights not engaged because bank, not police, freezes the accounts – BOR14 challenge unsupported by evidence of hardship – if engaged, prescribed by law (PFO and FPM) and proportionate – legitimate anti-money laundering aim at domestic and international level – Q3 fair hearing question – whether No Consent Regime procedurally unfair at common law or under BOR10 – held not procedurally unfair – no determination of rights in suit at law – police entitled to keep sensitive investigation aspects confidential under OSCO section 25A(5) – appellants chose to exercise right of silence – judicial review available – Q4 Interush question – correctness of Interush Ltd v Commissioner of Police [2019] 1 HKLRD 892 – Interush analytical basis ties the practice to OSCO section 25A(2)(a) and engages property rights – Court of Final Appeal does not fully support Interush's analysis – Court of Appeal result nonetheless correct – all four questions answered Q1 No, Q2 Yes, Q3 No, Q4 analysis not fully supported – appeal dismissed unanimously.
Legal issues: Ultra vires and improper purpose of LNCs and No Consent Regime · Constitutional challenge to No Consent Regime and LNCs · Fair hearing / procedural unfairness challenge to LNCs · Correctness of Interush Ltd v Commissioner of Police
Outcome: Appeal unanimously dismissed. All four questions answered: Q1 – No; Q2 – Yes; Q3 – No; Q4 – Interush adopted an analysis which the Court of Final Appeal does not fully support, but the Court of Appeal below arrived at the correct result.
Cited by 13 cases · Cites 2 cases