LEE CHU MING, MARTIN AND OTHERS v. A PERMANENT MAGISTRATE, EASTERN MAGISTRACY AND ANOTHER

LEE CHU MING, MARTIN AND OTHERS v. A PERMANENT MAGISTRATE, EASTERN MAGISTRACY AND ANOTHER

The application for judicial review is dismissed: the search warrants issued under s50(7) PFO were not ultra vires for lack of particularity, the absence of detailed ex ante digital search protocols on the face of the warrants did not render them invalid, retention pending lawful execution was not unreasonable on the facts, and though the Magistrate erred in declining jurisdiction to hear set-aside applications that error is academic given the lack of merit in the substantive grounds; searches remain constrained by an implied requirement of reasonableness and by after-the-event judicial review and other safeguards (sealing, TEPEs, LPP procedure).

Citation
[2020] HKCFI 2028
Parties
1st Applicant: Lee Chu-ming Martin; 2nd Applicant: Ho Chun Yan; 3rd Applicant: Sin Chung-kai; 4th Applicant: Au Nok-hin; 5th Applicant: Yeung Sum; 1st Putative Respondent: A Permanent Magistrate, Eastern Magistracy; 2nd Putative Respondent: The Commissioner of Police
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 August 2020
Case Number
HCAL1396/2020
Procedural Posture
Judicial Review / Judgment
Outcome
Application for judicial review dismissed
Legal Topics
Search Warrants, Digital Forensics, Mobile Phone Searches, Legal Professional Privilege, Ex Parte/inter Partes Applications, Magistrate Jurisdiction, Proportionality
Source Language
EN
Constitutional Law Administrative Law Criminal Procedure Privacy Law Evidence Law Technology Law Search Warrants Digital Forensics +5 more

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Parties

Lee Chu-ming Martin

1st Applicant

Ho Chun Yan

2nd Applicant

Sin Chung-kai

3rd Applicant

Au Nok-hin

4th Applicant

Yeung Sum

5th Applicant

A Permanent Magistrate, Eastern Magistracy

1st Putative Respondent

The Commissioner of Police

2nd Putative Respondent

Procedural Posture

Judicial Review / Judgment

Legal Issues

  1. 1 Whether warrants authorising search of mobile devices were ultra vires for lack of particularity and amounting to a licence to fish
  2. 2 Whether retention of seized mobile devices without prompt warrant or examination involved unreasonable delay
  3. 3 Whether applicants were entitled to prior notice/inter partes hearing before warrants were obtained given devices were sealed

Ratio Decidendi

The application for judicial review is dismissed: the search warrants issued under s50(7) PFO were not ultra vires for lack of particularity, the absence of detailed ex ante digital search protocols on the face of the warrants did not render them invalid, retention pending lawful execution was not unreasonable on the facts, and though the Magistrate erred in declining jurisdiction to hear set-aside applications that error is academic given the lack of merit in the substantive grounds; searches remain constrained by an implied requirement of reasonableness and by after-the-event judicial review and other safeguards (sealing, TEPEs, LPP procedure).

Court Disposition

Application for judicial review dismissed

Orders

  • Application for judicial review dismissed
  • Costs order nisi: Applicants to pay Commissioner\'s costs, to be taxed if not agreed, with certificate for two Counsel; order to become absolute after 14 days if not varied