RE KIM DOTCOM AND OTHERS

RE KIM DOTCOM AND OTHERS

The Restraint Order granted ex parte on 18 January 2012 involved material non‑disclosure because the United States Government failed to inform the Hong Kong court of live and relevant problems with service of the US summons; consequently the original order was set aside, but in the interests of justice and asset preservation the court regranted the Restraint Order in its original terms subject to reconsideration of conditions and open‑court representations; the non‑disclosure was an error of judgment, not deliberate deception.

Citation
RE KIM DOTCOM AND OTHERS
Parties
Applicant (d2): Megaupload Limited; Respondent (agent for United States): The Secretary for Justice; 1st Defendant: Kim Dotcom (Kim Schmitz)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 December 2014
Case Number
HCMP116/2012
Procedural Posture
Application to Set Aside a Restraint Order Under the Mutual Legal Assistance in Criminal Matters Regime; Extradition Related Criminal Proceedings / Chambers Hearing and Judgment on Application to Set Aside and Regrant Restraint Order (judgment)
Outcome
Original Restraint Order of 18 January 2012 set aside for material non‑disclosure but immediately regranted in original terms subject to reconsideration of conditions; proceedings to reconsider to be in Chambers open to the public; assets to be preserved pending full consideration.
Legal Topics
Restraint Order, Service of Process, Full and Frank Disclosure in Ex Parte Applications, Mareva Injunction Principles, Forfeiture
Source Language
EN
Criminal Law Extradition Mutual Legal Assistance Civil Restraint/injunctions Procedural Law Restraint Order Service of Process Full and Frank Disclosure in Ex Parte Applications +2 more

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Parties

Megaupload Limited

Applicant (d2)

The Secretary for Justice

Respondent (agent for United States)

Kim Dotcom (Kim Schmitz)

1st Defendant

Procedural Posture

Application to Set Aside a Restraint Order Under the Mutual Legal Assistance in Criminal Matters Regime; Extradition Related Criminal Proceedings / Chambers Hearing and Judgment on Application to Set Aside and Regrant Restraint Order (judgment)

Legal Issues

  1. 1 Whether there was material non-disclosure in the ex parte application for the Restraint Order on 18 January 2012
  2. 2 Whether problems over service of the US summons were material to the Hong Kong court's decision
  3. 3 Whether the Restraint Order should be set aside or regranted and on what conditions

Ratio Decidendi

The Restraint Order granted ex parte on 18 January 2012 involved material non‑disclosure because the United States Government failed to inform the Hong Kong court of live and relevant problems with service of the US summons; consequently the original order was set aside, but in the interests of justice and asset preservation the court regranted the Restraint Order in its original terms subject to reconsideration of conditions and open‑court representations; the non‑disclosure was an error of judgment, not deliberate deception.

Court Disposition

Original Restraint Order of 18 January 2012 set aside for material non‑disclosure but immediately regranted in original terms subject to reconsideration of conditions; proceedings to reconsider to be in Chambers open to the public; assets to be preserved pending full consideration.

Orders

  • Restraint Order dated 18 January 2012 set aside
  • Restraint Order immediately regranted in original terms