Re Szeto Cynthia

HCAL 77/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 77 OF 2011

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D E C I S I O N

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1.This is an application for leave for judicial review arising out of the response of the Commissioner on Interception of Communications and Surveillance (the Commissioner) to the Applicant’s application for an examination under section 43 of the Interception of Communications and Surveillance Ordinance, Cap. 589 (the Ordinance).

2.The Applicant made her initial application for an examination to the Commissioner in writing on 31 August 2010.  She gave further particulars in writing as requested and signed a consent form on 3 October 2010.  Further clarification was sought by the Commissioner by letter of 8 October 2010, which clarification was provided by the Applicant in writing on 15 October 2010.

3.On 30 December 2010 the Commissioner wrote to the Applicant informing her that the examination had been concluded and that he had “not found the case under your application in your favour”.  Accordingly, he said he would not take any further action in respect of her application.  Further correspondence from the Applicant followed, resulting in the Commissioner confirming his position on 26 July 2011 and 5 August 2011.  In his letter of 26 July 2011, the Commissioner further pointed out that:

“Pursuant to section 46(4) of the Interception of Communications and Surveillance Ordinance, the Commissioner is not allowed to give reasons for his determination or to indicate whether or not the alleged interception of communications (or covert surveillance) has taken place.”

4.It is against that background that this application for leave for judicial review is made.

5.It is settled law that the test to be applied in deciding whether to grant leave to judicially review a decision such as that impugned in this case is that the Applicant must show a reasonably arguable case, in other words one which enjoys realistic prospects of success: Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at 326.  The Commissioner having complied with the law, and in particular with the provisions of section 44(5) and 46(4) of the Ordinance, the Applicant’s case is in my view unarguable.

6.The application for leave is refused.

Please refer to CACV233/2011 for the relevant appeal(s) to the Court of Appeal.