(Viewpoint) Meaningless Declarations: Empty Words

The Rule of law requires effective remedies. When court proceedings focus on empty declarations, the purpose of such proceedings become doubtful. Such is the case in the applications for judicial review brought by Martin Lee Chu Ming and four others on 4 July 2020 against a Permanent Magistrate ( 1st Putative Respondent ) and the Commissioner of Police ( 2nd Putative Respondent ): HCAL 1396/2020, judgment 20/8/2020.

By those proceedings they sought to quash search warrants issued by the magistrate relating to their arrest on 18 April 2020 on suspicion of having organised unauthorised assemblies on three separate occasions in 2019.

At the time of the arrests, mobile phones were seized. The SIM cards were then almost immediately removed and, together with the devices, put into tamper-proof envelopes by the police.

On 26 June the magistrate, on the application of the police, issued search warrants authorising the police to access the information contained in the phones in furtherance of their investigations. The reason is obvious. As the applicants were charged with organizing unauthorised assemblies, they would most likely have used their phones for that purpose.

Search warrants, by their very nature, are intrusive. But, over the ages, they have proved to be very effective instruments in the detection and punishment of crime. Where search warrants relate to documents stored in homes or offices, the police executing the warrants would exercise their best judgment to seized what they think might be relevant. Inevitably not all the material seized would be relevant to the investigation; that could cause great inconvenience to the suspects; documents not relevant would be returned to the owners after examination. What is of interest to the prosecution is evidence of the crime alleged, nothing else.

In principle, the information stored in a mobile phone is no different. But there are practical considerations: the way in which data is stored in the digital space is different. Same data may be stored across different types of communication applications as well as emails, texts, call records etc. Hence, imaging the whole digital device is necessary to allow a comprehensive forensic digital examination, in order to extract the relevant information. This is done by a highly specialized unit called the Digital Forensics Investigation Section of the police who would apply parameters or keywords based on information given by the investigation unit to narrow down the relevant data.

There is also this difference between documents seized from premises and data stored inside mobile phones. The information could not be extracted without the necessary passwords. None of the applicants was willing to reveal the unlocking passwords. The police have techniques to bypass that, but the process is elaborate and could take months.

The search warrants issued by the magistrate were in standard form. They stated that the police had reason to believe that the digital contents of the mobile phones were likely to be of value to the investigation of the offences as alleged against the applicants. The warrants authorised the police to “enter” the mobile phones and “take possession” of their digital contents.

The juridical foundation of this exercise of power by the police is found in s.50(7) of the Police Force Ordinance; this form of search warrant was expressly approved of by the Court of Appeal in Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [CACV 97/2015 ], followed up by another case Sham Wing Kan v Commissioner of Police [ CACV 270/2017, judgment 2/4/2020 ]. 

This is the setting in which the proceedings in HCAL 1396/2020 were brought. It is necessary to emphasize at the outset that the seizure of the mobile phones has never been challenged. Nor was it alleged that the police had no right to conduct a comprehensive forensic examination of the information stored in the phones. Nor was it said that the police had abused their powers, acted ultra vires, or had behaved unlawfully in any way.

This leaves one wondering why judicial review proceedings were launched at all, as they inevitably delayed the prosecution of the applicants.

When focus is beamed on the reliefs sought by the applicants, the futility of these proceedings becomes blindingly obvious:

“( 1 ) An order of certiorari to quash the Search Warrants;
( 2 ) a declaration that the seizure of a smart phone upon arrest for the purpose of accessing the digital contents must be followed by an application for a search warrant without unreasonable delay;
( 3 ) an order of mandamus that the Applicants’ smart phones be returned to them;
( 4 ) a declaration that the Commissioner must inform the owner of a smart phone of the intention to apply for a search warrant over the contents of the smart phone in order to facilitate an inter partes hearing;
( 5 ) an order of certiorari to quash the decision of the Magistrate refusing to hear the applications to set aside or vary the Search Warrants; 
and, alternatively to the above,
( 6 ) an order of mandamus that the Magistrate proceed to hear the applications to set aside or vary the Search Warrants”.

As regards para ( 1 ), the key allegation, in the course of argument presented by counsel acting for the applicants, there were pin-pricks directed at the Commissioner of Police ( the 2nd Putative Respondent ) which by their very nature were absurd, and could not possibly have given rise to a quashing order: that the Commissioner had not acted with “candour”; that he had held onto the mobile phones for two months before applying for the warrants; that he had wrongfully applied ex parte to the magistrate for the warrants, without giving the applicants an opportunity to argue against their issue at an inter partes hearing; that the warrants themselves failed to “particularize” the specific charges brought against the applicants. The arguments put up by counsel occupied scores of pages of the judgment           ( which in total came to 64 pages ).

Two of the applicants are very senior lawyers. Martin Lee Chu Ming  ( the 1st Applicant ) was appointed Queen’s Counsel in 1979 and heads the Bar List. He has occupied that position for many years. Albert Ho Chun Yan ( the 2nd Applicant ) is senior partner of a law firm that goes back to 1995. He stood for election as Chief Executive in 2012. 

One wonders what was going on in their heads as they sat in court listening to those arguments put up on their behalf.  

Take the first point: the “lack of candour”. The complaint ( para 66 of the judgment ) was that the police did not give details as to how they performed the data imaging process ( including how the passcode unlocking process might be performed ). Have the Applicants got so wrapped up in their own make-belief world that they cannot see the absurdity of what was submitted to the court on their behalf ?

Or take the point that they should have been given an opportunity to oppose the issuing of the search warrants by the magistrate: Do they really think that criminal suspects should know in advance that search warrants are about to be issue ?

Or take the point about the lack of “particularity” in the warrants. They didn’t know that the warrants related to the criminal charges they faced ?

Para ( 1 ) of the reliefs was an absurdity, which makes para ( 3 ) doubly so.

As to the two declarations – paras ( 2 ) and ( 4 ). What is the Commissioner supposed to do if those declarations were made ? These are just empty words. Mere puffs, sound and fury, signifying nothing.

As to paras ( 5 ) and ( 6 ), the matter being in the High Court on an originating summons, what happened in the magistrate’s court was of no relevance.

That, in essence, was the sum total of the case. There was much “discussion” of the two cases referred to earlier - Keen Lloyd Holdings  and Shum Wing Kan v Commissioner of Police -which occupied multiple pages of the judgment. Apart from the fact that these two cases established s.50(7) of the Police Force Ordinance as the juridical foundation of the exercise of power by the police, they were of no relevance. Firm judicial discipline by the court would have scotched needless discussion.

In reading the judgment, what is striking is the contrast between the disciplined process of the police in dealing with the investigation and the scrambled “justice” in the court.

The applicants are all senior members of the movement which led to the insurgency in 2019. Their individual responsibility for that tragic event has yet to be fully revealed. They had put themselves forward as leaders of the community. The community has the right to ask them this: Do you support the fair and vigorous enforcement of the Rule of Law ? “Fair”, that is to say, not only to the suspects themselves but also to the community at large ?

Simply look at this case. What did they hope to achieve ?  The legality of the seizure of the phones was never in doubt. The only purpose of such seizure was to access the data stored in the phones in aid of the investigations.  If, for some bizarre reason, the warrants were technically defective, the police would simply have taken out fresh warrants. There never was a possibility that the court would have ordered the return of the phones before the end of the investigations.

Were these self-professed leaders of the community blind to this glaring reality ? Or were they simply trapped within their own fantasy world ?

Perhaps so.  Consider the sequel to the case. Their application for judicial review was dismissed. Following the usual course of events – well known to lawyers – the court ordered the applicants to pay the respondents’ costs. They raised objection. They said No, the respondents should pay their costs. This was absurd. They failed again, incurring yet more costs.

Rationally, the whole process made no sense. The only purpose attainable was delay.  Is this part of a destabilising process in the wider sense, loosening the fabric of Hong Kong society to enable their concept of “democracy” to find acceptance ? Can it be that tolerance by the courts of such process has led ultimately to acceptance by highly educated people of such warped ideology as “laam chau” – “we fry, you fry”  ?  That is a sobering thought.

Henry Litton
7 October 2021