Following its recent judgment in Tam Sze Leung & Ors v. Commissioner of Police on the scope and constitutionality of police powers to restrict or “freeze” assets in bank accounts under the Organized and Serious Crimes Ordinance (“the Judgment”) through letters of “no consent”, the Court of Appeal on 15 August 2023 granted leave to the Applicants to appeal against the Judgment to the Court of Final Appeal, on four questions of great general or public importance:
- “Whether the No Consent Regime operated by the Commissioner and the LNCs [Letters of No Consent] issued by the Commissioner in respect of the Applicants’ bank accounts are ultra vires and/or whether the LNCs were issued for an improper purpose.”
- “Whether the No Consent Regime operated by the Commissioner and the LNCs issued by the Commissioner in respect of the Applicants’ bank accounts comply with the constitutional requirements for protection of the fundamental right to property in arts. 6 and 105 of the Basic Law, the rights to private and family life in art. 14 of the Hong Kong Bill of Rights, and the rights to access to legal advice and to the court in art. 35 of the Basic Law and art. 10 of the Hong Kong Bill of Rights including in particular:
- Whether they fulfil the requirements of being prescribed by law.
- Whether they are proportionate restrictions on such fundamental rights.”
- “Whether the No Consent Regime operated by the Commissioner is and the issue of the LNCs in respect of the Applicants’ bank accounts was procedurally unfair at common law and/or in violation of the right to fair hearing under art. 10 of the Hong Kong Bill of Rights in that there was (1) no or no adequate notice of the decision to issue the LNCs, before or after the issue; (2) no or no adequate opportunity to provide meaningful representations as to whether the Letters of No Consent should be maintained; (3) no or no adequate reasons given for the decision to issue the LNCs; and (4) no hearing before an independent and impartial tribunal in terms of art. 10.”
- “Whether the case of Interush Ltd v Commissioner of Police was correct in holding that the “consent regime” (as defined in that judgment) is a necessary and proportionate restriction on the right to enjoyment of private property under arts. 6 and 105 of the Basic Law.”
Abraham Chan SC, instructed by Messrs O Tse & Co., leads the counsel team acting for the Applicants
Peter Dong, instructed by Department of Justice, has been part of the counsel team acting for the Commissioner of Police
The Court of Appeal’s decision on leave to appeal can be found here.
The substantive Court of Appeal judgment can be found here.
The Court of First Instance judgment can be found here.