Introduction
Background
Decision
Comment
Introduction
Following on from “the first case of its type”,(1) the Court of First Instance of the High Court has handed down another decision arising out of an application to challenge the scope of orders for the production of documents (production orders) granted pursuant to section 3 of Schedule 7 of the Implementation Rules for Article 43 of the National Security Law.(2) In the first case, the application involved claims to legal professional privilege and journalistic material.(3) In this case, the applicants applied to vary the scope of the production orders in order to redact some of the documents in dispute because they contained other persons’ personal details, some of which appear to have been obtained pursuant to an assurance of confidentiality – it was argued that these were relevant considerations when the Court was being asked to reconsider the public interest justification for the grant of the production orders. While the Court dismissed the application (based on the facts), the decision makes it clear that the courts must approach applications for production orders with an independent judicial mindset, including when reconsidering the balance of the public interest on an application to discharge or vary a production order.
Background
The production orders were granted by the Court against each of the applicants in August 2021, pursuant to section 3(2) of Schedule 7 of the Implementation Rules for Article 43 of the National Security Law, and served in September 2021. The production orders were in identical terms and required each applicant (being a trustee of the relevant association) to produce a wide range of books and records for a specific time period, in addition to the personal details of certain donors and recipients of funds exceeding, in each amount, HK$100,000 and HK$50,000, respectively.
Much of the documentation sought was produced by the applicants to the commissioner of police (the respondent). However, some documents relevant to donations or subsidies were proposed to be redacted by the applicants, although they were eventually produced in unredacted form pursuant to a protocol that these documents be kept under seal pending the applicants’ application to vary the production orders to redact certain personal information (the disputed documents).(4)
On hearing the application to vary, the following issues arose for the Court’s determination in the context of an order for the production of documents pursuant to section 3(2) of Schedule 7 of the Implementation Rules:
- whether the Court should consider argument concerning the relevance of the disputed documents to the respondent’s investigation; and
- whether the Court should reconsider the balance of the public interest as regards the personal data and the confidentiality of the disputed documents – balancing countervailing interests of, on the one hand, production and, on the other hand, privacy and confidentiality issues.
The applicants argued that redaction of the disputed documents was supported by the protection of personal data and confidentiality rights – furthermore, some donation recipients had apparently given their personal data to the association pursuant to an assurance of confidentiality.
The respondent argued that issues of relevance and privacy rights had already been considered by the Court on the grant of the production orders and, in the absence of exceptional grounds (such as oppression or exceptional difficulty), there was no valid ground to discharge or vary the production orders.
It is important to note that the constitutionality of Schedule 7 (“Furnish Information and Produce Materials”) of the Implementation Rules was not in issue.(5) Neither was it disputed that issues of confidentiality and privacy were matters that the Court could take into account when considering whether to grant a production order under Schedule 7.(6)
Decision
Role of Court
The Court emphasised that judicial safeguards are necessary and provided for in Schedule 7 of the Implementation Rules to ensure that the power to order the provision of information and the production of documents is not unwarranted or oppressive. The Court stated:
This prior judicial authorization would provide an opportunity for the conflicting interests of the state and the individual to be assessed before the event so that the individuals’ right to privacy (guaranteed by the Basic Law [Article 30] and the Bill of Rights Ordinance [Article 14]) would be breached only where the appropriate standard had been met. The court vetting an application for production order must approach the task judicially with an independent mind balancing the conflicting interests.(7)
Issue of relevance of materials on application to vary
The Court acknowledged that it had a discretion to refuse to grant a production order – however, where the statutory criteria for the grant of a production order pursuant to section 3 of Schedule 7 of the Implementation Rules were met, the justification for such a refusal had to be strong given that the plain legislative intent was that the effectiveness of investigations by law enforcement agencies should not be impeded. By analogy, the Court referred to investigations under the Prevention of Bribery Ordinance. Furthermore, an application for variation should generally not be allowed when it related to the substance of an investigation as to do so may prejudice the effectiveness of the investigation and the courts should not seek to carry out the impossible task of trying to determine prematurely what was relevant to the criminal investigation. This was not to suggest that a court should proceed on the bare assertion of a law enforcement agency – the court’s role is to ensure that the statutory criteria for the grant of a production order are met.
However, as a matter of principle and in the absence of exceptional difficulty or oppression, the judge held that the court should generally not entertain an application to discharge or vary a production order on the ground of relevance when this issue had already been determined on the grant of the order.(8)
Reconsideration of balance of public interest (as regards personal privacy)
In contrast to the issue of relevance (and the proposed redaction), the judge held that it was permissible for the Court to reconsider the balance of the public interest (and the countervailing interests of production and privacy) on an application to discharge or vary a production order. As the Court noted:
This is because at the ex parte stage, it is likely that the police would not have much information to provide the court with on s. 3(4)(d)(ii). On the other hand, such information is more likely to be available from the person who is the subject of the production order when there is an application for discharge or variation.(9)
Having clarified the Court’s role in this regard, on the facts the Court dismissed the application for variation. The Court gave detailed reasons for doing so and (in summary) these included the following:
- An assurance of confidentiality was not, of itself, a bar to the production of the relevant documents.(10)
- The investigation of crime is often supported by legislation that allows law enforcement agencies to obtain confidential documents (particularly in the context of serious crime).
- An equitable duty of confidence does not go so far as to prevent disclosure to law enforcement agencies carrying out investigations within their remit.
- The applicants had not shown any exceptional difficulty in complying with the production orders by providing the respondent with unredacted copies of the disputed documents.
Comment
J & Ors v Commissioner of Police is a second important decision (following A & B v Commissioner of Police), which gives detailed reasons analysing section 3 of Schedule 7 in the context of a challenge to production orders granted pursuant to the Implementation Rules for the National Security Law in Hong Kong.
The emphasis given in both decisions to the Court’s role as a judicial gatekeeper is welcome. The outcome in J & Ors v Commissioner of Police, based on the evidence before the Court, illustrates some of the challenges in seeking to discharge or vary an order for production – for example, some of the disputed documents sought to be redacted apparently included supporting documents relating to the medical treatment of certain recipients of funds and, on the face of it, it is difficult to envisage much more sensitive material.
While A & B v Commissioner of Police is stated to be “the first case of its type”, J & Ors v Commissioner of Police will not be the last as the courts in Hong Kong are asked to interpret and apply the Implementation Rules for the National Security Law. What is clear is that claims to journalistic material, privacy rights and duties of confidentiality are not (of themselves) general bars to the grant of production orders, although they are important matters to be considered in the exercise of the Court’s discretion when carrying out its crucial role of judicial oversight. While the importance of the investigation into alleged crime comes across from the decision in J & Ors v Commissioner of Police, one absolute in this matter is the inviolable nature of legitimate claims to legal professional privilege as between clients and their lawyers.
For further information on this topic please contact Antony Sassi, David Smyth or Warren Ganesh at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
Endnotes
(1) A & B v Commissioner of Police [2021] 3 HKLRD 300.
(2) J & Ors v Commissioner of Police [2021] HKCFI 3586, 29 November 2021. Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. Schedule 7 contains the rules relating to the requirement to furnish information and produce materials pursuant to a court order.
(3) For further details please see “Court considers legal privilege and journalistic material in context of national security law”, 13 July 2021).
(4) A practice approved of by the Court – supra note 2, at para 28.
(5) Supra note 2, at para 11.
(6) Supra note 2, at para 12. Section 2(4)(d)(iv) of Schedule 7.
(7) Supra note 2, at para 14.
(8) Supra note 2, at para 26.
(9) Supra note 2, at para 28.
(10) Supra note 2, at para 30. Section 3(11)(b) of Schedule 7 of the Implementation Rules.
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