Re C

HCMP002601/1989

[An ex parte application for a restraint order under this Ordinance should be followed by notice of originating motion specifying a date for the hearing of the application inter partes and specifying the terms of the relief sought]

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS No. 2601 OF 1989

--------------------------

------------------

Coram: Hon. Godfrey J.

Date of judgment: 5th October 1989

------------------------

J U D G M E N T

------------------------

1. By the Drug Trafficking (Recovery of Proceeds Ordinance) 35 of 1989 ("the Ordinance"'), the legislature has made provision for the tracing, confiscation and recovery of the proceeds of drug trafficking. In particular, the Ordinance has conferred powers on the High Court to make restraint orders to prohibit any persons from dealing with any realiseable property : see section 10(1). An application for such an order may be made on an ex parte application to a judge in chambers : see section 10(4)(b). An application for the discharge or variation of a restraint order may be made by any person affected by it : see section 10(5). The Rules Committee of the Supreme Court has made an order, Order 115 of the Rules of the Supreme Court, prescribing the procedure to be followed on an application for a restraint order. The application is to be made by the Attorney General ex parte by originating motion : see 0.115, r.3(1). The application is to be supported by affidavit : see 0.115, r.3(2). Unless the court otherwise directs, a restraint order made ex parte shall have effect until a date which shall be fixed for the hearing inter partes of the application : see 0.115, r.4(2). (The legislation, and the rules, are substantially similar to those in force in England and Wales.)

2. All this is clear enough: and, I would add, fair enough. The power to make a restraint order ex parte is a draconian power; but the evil against which the legislation is directed is a grave evil. The matter is brought fairly into balance by the provisions of 0.115, r.4(2). Unless the court otherwise directs, (which, presumably, it should do only if special reason is shown in that connection) no order is to be made on an application ex parte having effect beyond the date fixed for the hearing inter partes of the application. It would of course have been possible to have provided that an ex parte order once obtained should continue until discharged on the application of the defendant. But that might be thought to tilt the balance unfairly in favour of the Attorney General. On the matter of policy, there may have been room for two views. But on the matter of the rules as they stand, there is not. The language of 0.115, r.4(2) is consistent only with one, which is that an ex parte restraint order shall have effect, in the normal case, only "until the day which shall be fixed for the hearing of the inter partes application". There is a similar rule in 0.115, r.4(2) in the Rules of the Supreme Court (England and Wales). In the only authority mentioned to me, In re Peters, 25th April 1988, C.A. (unreported), 0.115, r.4(2) was not mentioned in any of the judgments (either because nothing turned on it, or, perhaps, because the court chose to turn a blind eye towards the provisions of that sub-rule). Whatever the reason for this may be, the authority is of no assistance on the points of procedure with which I am now concerned. These arise as follows.

3. On 29th September 1989 the Attorney General applied to this court ex parte for a restraining order against one C. The application came before me, and I was invited to make a restraining order effective "until further order". The draft order put forward contained no provision expressly giving liberty to C to apply to discharge the order, although a "note" to that effect had been inserted at the foot of the order. I indicated that I was not prepared to make the order except in accordance with the provisions of 0.115, r.4(2) That is to say, an order having effect only until a day fixed for the hearing of the inter partes application. I ascertained that a judge would be available to hear that, inter partes application at 3 p. m. on 6th October 1989 and so I made an order over that day only, and not the order "until further order" which I had been asked to make. I also insisted that the order should contain an express provision (not merely a "note") giving C liberty to apply to discharge the order.

4. One other procedural point arose. This concerned the form of the originating notice of motion. As originally presented to me, the draft asked for "a, restraint order in the terms set out herein". It did not however in fact set out any "terms" at all; so it was manifestly defective. I pointed this out, and added that the "terms" either had to be set out in the body of the originating notice of motion (for example, by saying "the following terms" or "the terms set out in the schedule hereto", and then setting them out as indicated) or incorporated by reference (for example, by saying "the terms set out in the draft order annexed hereto", or something similar). I also pointed out that the object of the originating notice of motion was not only to give notice to C of the relief sought against him, but also to give him notice of the day and time of the inter partes application. It was no use inserting in the notice of motion (as the Attorney General had done in the draft before me) a return date which was the same as the date of the ex parte application.

5. In the end, I directed that the originating notice of motion should specify the relief sought and give as the return date the date on which, as I had ascertained, a judge would be available to hear the application.

6. I was invited to deliver a formal judgment about these matters of procedure. This is that judgment. Since the jurisdiction is fairly new, and since it affects the liberty of the subject in dealing with his property, I take the view that although I made the order in question in Chambers (in my view, the appropriate course : see 0.115, r.2) I ought to deliver this judgment in open court, which I now do.

7. I would express the hope that this judgment might assist to create that conformity with the rules, and uniformity of practice, which (or so I was told by counsel for the Attorney General) has hitherto been lacking.

Representation:

Mr Bob Davies and Mr Steve Chui, S.C.C. of Attorney General's Chambers for the intended Applicant.