Raymond Lam & Associates v. The Commissioner of Police, Hong Kong Police Force and Another

HCAL 417/2026

[2026] HKCFI 4326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 417 OF 2026

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J U D G M E N T

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A. Introduction

1.The Applicant (“RLA”) was a firm of solicitors. Though operating at the time of the commencement of these proceedings, it has since ceased practice (in the circumstances described below).  RLA practiced from an office in Mong Kok (“Office”).  Mr Raymond Lam was the sole proprietor of RLA.

2.By Form 86 dated 16 February 2026, RLA sought leave to apply for judicial review so as to challenge: (1) the 2^nd Putative Respondent Magistrate’s issue of a search warrant (“Search Warrant”) on 9 February 2026, permitting the Police to search the Office and to seize and detain documents found there; and (2) the 1^st Putative Respondent Commissioner’s execution of the Search Warrant on 9 and 10 February 2026, and the seizure and detention of documents.

3.The Search Warrant had been issued by the Magistrate on the Commissioner’s application, made upon the reasonable suspicion that RLA was involved in a series of suspected fraudulent traffic accident-related personal injuries insurance claims.

4.The main basis of the intended judicial review challenge was that the documents seized and detained were subject to legal professional privilege (“LPP”).  The documents comprised 68 files relating to 62 court actions (“62 Actions”), in which RLA acted on behalf of certain clients.  In fact, during the search, RLA (I assume through Mr Lam) indicated that LPP would be asserted over 66 of the 68 files seized, and therefore the Police had immediately sealed those files in opaque containers as provided for in the Search Warrant.

5.As it seemed to me that the proceedings might have some time sensitivity, on 24 February 2026 I directed a rolled-up hearing of the application for leave to apply for judicial review and, if apt, the substantive application for judicial review.  I fixed that hearing for 5 June 2026.  I also gave further directions to bring the matter to that rolled-up hearing.

6.On 31 March 2026, the Applicant filed an Amended Form 86 (“AF86”).

7.Later, as a result of subsequent events (see below), I varied the timetable, gave further directions, and re-fixed the hearing for 31 July 2026.

8.At that hearing, for reasons which will become obvious, the Applicant (RLA or Mr Lam) did not appear.  The Commissioner was represented by Mr Nicholas Wong, Senior Assistant Director of Public Prosecutions, Ms Zena Yuen Senior Public Prosecutor (who co-signed the skeleton submissions but was not in Court), and Mr Peter Leung, Public Prosecutor, of Department of JusticeMr Nicholas Wong SADPP, Ms Zena Yuen SPP and Mr Peter Leung PP of the Department of Justice.  The Magistrate, as would be expected, took a neutral stance and took no part in the proceedings.  No other party or person attended or was represented.

9.At the end of the hearing, I dismissed the application, for reasons to be handed down on the next Court working day.

10.This is my Judgment giving those reasons.

B.      Subsequent Events

11.However, before turning to the reasons, and to give them their context, it is convenient first to identify the events which occurred subsequent to the commencement of these proceedings.

12.In late April 2026, RLA and the Commissioner reached an agreement permitting specified personnel of the Police and the Department of Justice (“DOJ”) to inspect the seized materials over which LPP had been generally claimed.  The purpose of the inspection was to identify the specific contested documents for the purpose of narrowing down the scope of any LPP dispute.

13.Files in relation to 33 actions out of the 62 Actions were returned to RLA.  Hence, the seized files remaining in the possession of the Police concern only 29 court actions (“29 Actions”) involving 14 clients or former clients of RLA (“14 Claimants”).

14.On or with effect from 29 April 2026, the Law Society intervened in RLA’s practice (“Intervention”).  However, the intervention agents do not act in place of RLA, and they made clear that they would take no part in these proceedings.  In fact, RLA ceased practice as a result of the Intervention.

15.Because of that fact, the DOJ on behalf of the Commissioner wrote to the Court, proposing to write to the 14 Claimants (1) to inform them of the present proceedings made by RLA on their behalf, (2) to notify them that they may assert LPP over the subject materials; (3) to remind them to seek independent legal advice; (4) to invite them to communicate with the DOJ/Commissioner or the Court as to their stance on LPP; and (5) to invite them to attend the rolled-up hearing scheduled for 31 July 2026.

16.I agreed to that proposal, and in consequence letters were served on the 14 Claimants.  I am satisfied from the affidavits detailing service that each of the 14 Claimants was properly served with the letter.

17.To date, out of the 14 Claimants, replies were received from only 6 of them, as follows:

(1)     Two of them (“Tam” and “Chiu”) – relating to item 52 in the listed civil proceedings originally identified in the exhibits – instructed Lennon & Lawyers (“Lennon”) to assert LPP over the relevant case files.  Lennon has subsequently informed the Court that Tam and Chiu would not seek to join these proceedings as parties, as they do not challenge the validity of the Search Warrant and simply rely on the inbuilt safeguard of the Search Warrant to assert LPP.

(2)     One of them (“Lau”) – relating to item 48 – indicated a neutral stance, and confirm that he would not attend the rolled-up hearing or any subsequent hearings.

(3)     One of them (“Luk”) – relating to item 41 – indicated that he would not waive his LPP, but had no intention to participate in these proceedings as he could not bear the legal costs.

(4)     Two of them (“So” and “Pun”) – relating to item 47 – indicated that they did not intend to claim LPP.

18.Therefore, none of the 14 Claimants has sought to join in these judicial review proceedings. None of them has filed any evidence or submissions, either to challenge the validity of the Search Warrant or to substantiate a claim to LPP over their respective seized case files.

C.     Applicant Has Ceased to Pursue the Application

19.As already stated, on 29 April 2026 the Law Society intervened in the practice of RLA, i.e. the Intervention.  As a result, RLA ceased practice.  In a letter to the Court dated 29 June 2026 (faxed on 2 July 2026), Mr Lam stated that thereafter RLA could take no further role in these proceedings, and no one would be in court at the hearing to represent RLA.  Mr Lam did not suggest that the hearing should not or could not go ahead.

20.However, in short, RLA and/or Mr Lam no longer pursue this judicial review application.  No evidence has been filed since the Intervention, Mr Lam has prepared no submissions, and there is no application to substitute any other party as applicant.  Indeed, the practical reality is RLA as a firm simply has no capacity in which to continue this application, and it does not seem that Mr Lam himself seeks to push it.

21.Anyway, LPP is the privilege of a client, and not of the solicitor.  RLA never asserted any privilege of its own, and merely ever asserted that the proceedings arose from the fact that none of its clients had waived any right to LPP.  But, as Mr Wong correctly submitted, it is not for the Court, still less for the Commissioner, to make good a claim to LPP on behalf of persons who have chosen not to advance that claim in these proceedings.  In any event, any such LPP rights have been protected, or can be protected, by directions already made – or as appropriate in any future proceedings.

22.Further, only RLA as occupier of the Office, being the premises against which the Search Warrant was directed, would have any standing to make any challenge to the validity of the Search Warrant.  But no such challenge is maintained.  The proceedings have in effect simply been discontinued.

23.I also accept Mr Wong’s submission that no prejudice arises vis-à-vis anyone else from the dismissal of the present judicial review proceedings.

24.In those circumstances, the application for leave to apply for judicial review is dismissed.

D.     No Merits

25.In any event, none of the three intended grounds of review had any merit.

26.In the AF86, three intended grounds of review were advanced:

(1)     Ground 1: The 66 file seized are covered by LPP, hence the Commissioner’ s continued detention of them is unlawful.

(2)     Ground 2: The wrong approach was taken towards LPP materials, when the Magistrate adopted the approach of permitting seizure first, then letting solicitors prove LPP in Court later.

(3)     Ground 3: There was material non-disclosure, when the Commissioner failed to disclose to the Magistrate why the ‘fraud exception’ could be invoked to displace LPP.

27.Ground 1 is not reasonably arguable with any realistic prospect of success, because:

(1)     The burden of establishing LPP rests on the person asserting it.  Whilst RLA (before it ceased practice) sought to assert LPP on the basis that its clients had not waived LPP, at that point no client had actually claimed LPP.  It is trite that the privilege was not that of the solicitor, but that of the client.

(2)     None of the (remaining relevant) 14 Claimants has provided evidence or submissions in these proceedings capable of discharging that burden.

(3)     Further, there is strong force in the submissions made for the Commissioner that no LPP attached to the seized files possessed by the Police concerning the 29 Actions.

(4)     This is by operation of the principle that LPP does not attach to documents which are themselves part of, or which were brought into existence in furtherance of, the commission of a crime or fraud, i.e. the ‘fraud exception’.

(5)     On the evidence and analysis provided on behalf of the Commissioner, it seems to me that there is at least a strong prima facie case that the materials of the 29 Actions came into existence as part of fraud or crime.

(6)     I do not think it necessary – and it may not be appropriate in these proceedings – to go into any further detail on this point, but the analysis given by Mr Wong in his written skeleton submissions identifies the strong prima facie case that the documents include (a) forged vehicle repair receipts, (b) forged income proof, (c) forged receipts for tonic food, and (d) numerous false claims to loss of income.

28.Ground 2 is not reasonably arguable with any realistic prospect of success.  It is trite that the fact that material sought might be privileged does not preclude the issue of the search warrant which authorises a search for the material.  Further, in this case, the Search Warrant clearly provided an appropriate mechanism sufficiently to safeguard materials over which LPP might be claimed, and the Search Warrant imposed conditions for its execution so as to protect claimed LPP materials until such time as the claim could be properly determined.  When the Search Warrant was executed, and a general claim to LPP was asserted by RLA, the appropriate action was taken to seal the materials in opaque containers pending further appropriate steps.  I accept the evidence filed for the Commissioner that no challenge was made during the search of the Office against the conduct of the execution of the Search Warrant and the safeguard measures relating to LPP.

29.Ground 3 is not reasonably arguable with any realistic prospect of success.  The Commissioner’s obligation, was to identify the circumstances which he said gave rise to reasonable cause to believe that the premises to be searched were likely to contain evidence of suspected criminal activity. Insofar as the Commissioner owed any further duty of disclosure to the Magistrate as regards LPP, the Magistrate was properly informed that the premises to be searched were likely to contain material covered by LPP, or where a claim to LPP might be made.  Any duty owed to the Magistrate did not extend to any explanation of the ‘fraud exception’.  Indeed, that question (if raised) is one to be considered by a Judge in determination of the claim to LPP.

30.For these additional reasons, even had RLA been in a position to continue the proceedings, I would have dismissed the application for leave to apply for judicial review.

E.     Result

31.RLA has ceased to have the capacity to maintain this judicial review application, which can in effect be treated as having been expressly abandoned (if not formally withdrawn or discontinued) by Mr Lam, its sole proprietor.  That leads to the dismissal of the application.

32.In any event, none of the intended grounds of review initially advanced by RLA are reasonably arguable with any realistic prospect of success.  Therefore, that would also lead to the dismissal of the application.

33.Despite the invitation extended to persons otherwise potentially affected by possible claims to LPP, no other person has sought to join these proceedings or to file any evidence or submissions. Indeed, only 6 of the (remaining relevant) 14 Claimants has given any response at all.  Insofar as claims to LPP have been maintained, those claims can be dealt with and determined in accordance with the usual practice, as provided for expressly in the Search Warrant in this case.  I was and remain satisfied that no prejudice is occasioned to any potentially interested party by the dismissal of the current application.

34.Therefore, I dismissed the application for leave to apply for judicial review.

35.As to costs, Mr Wong sought costs to be ordered in in favour of the Commissioner against RLA.  I am satisfied, in the exercise of my broad discretion as to costs, that that is appropriate to make that order, for the following reasons in summary:

(1)     Though the application was, in accordance with the rules, commenced on an ex parte basis, I quickly gave directions for a rolled-up hearing.

(2)     From that point onwards, RLA and Mr Lam would have known that the Commissioner would likely incur costs in meeting the judicial review application.

(3)     Whilst Mr Lam later indicated that RLA and/or he would take no further steps in the proceedings, Mr Lam seemed to anticipate that there would still be a hearing, and no formal application to withdraw or to seek discontinuance of the proceedings was made.

(4)     In other words, at the point when Mr Lam should formally have sought to bring the proceedings to an end, he allowed them to continue, and that caused the further incidence of costs and time spent.

(5)     Where the primary intended challenge related to potential claims of LPP, RLA had no privilege which it could claim for itself.  The LPP (if it exists) falls to be claimed by RLA’s clients.

(6)     Though RLA appears to have asserted privilege on behalf of its clients, perhaps out of an abundance of caution, there is no evidence that it took other steps to seek active instructions from its clients about any potential claim to LPP.

(7)     In the circumstances of RLA’s effective abandonment of the application, it fell to the Commissioner to propose a method by which the 14 Claimants might assert LPP and/or might seek to appear in and file evidence or make submissions in these proceedings.

(8)     I approved that request, rather than simply dismissing the application at that point, because it seemed to me to be appropriate in protection of a potential claim or claims to LPP.

(9)     The Commissioner has provided assistance to the Court through the filing of submissions on his behalf.

(10)     None of the intended grounds for judicial review advanced by RLA have any merit.

(11)     The questionable status of RLA as an extant firm is not such as should prevent the making of the costs order, not least where it is or was a sole proprietorship owned by Mr Lam.

36.Therefore, I order the Commissioner’s costs to be paid by RLA/Mr Lam, to be summarily assessed by me.

37.The Commissioner shall file a Statement of Costs for Summary Assessment by 10 August 2026, and RLA/Mr Lam shall file a List of Objections (if any) by 24 August 2026.  Thereafter, I will proceed to the summary assessment on the papers.

The applicant, acting in person, did not appear

Mr Nicholas Wong, Senior Assistant Director of Public Prosecutions, Ms Zena Yuen Senior Public Prosecutor, and Mr Peter Leung, Public Prosecutor, of the Department of Justice, for the 1^st putative respondent