Public Law — CFA to decide whether the Letter of No consent regime is lawful and constitutional
By judgment handed down on 16 August 2023 ([2023] HKCA 959), the Court of Appeal granted leave to the Applicants to appeal to the Court of Final Appeal on the following questions of law of great general or public importance:
1. Whether the No Consent Regime operated by the Commissioner and the LNCs 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.
2. 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:
(1) Whether they fulfil the requirements of being prescribed by law.
(2) Whether they are proportionate restrictions on such fundamental rights.
3. Whether the No Consent Regime operated by the Commissioner 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 LNCs 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.
4. 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.
The Court of Final Appeal will thus be deciding various questions pertaining to the legality and constitutionality of the No Consent Regime, including whether Interush Ltd v Commissioner of Police [2019] 1 HKLRD 892 was correctly decided by the Court of Appeal. As the Court of First Instance observed and the Court of Appeal agreed, this case raises “issues of real public importance in respect of a frequently operated regime with potential application to any bank account in Hong Kong by any person or corporation.”
The judgment of the Court of Appeal granting leave to appeal to the Court of Final Appeal can be found here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=154400&currpage=T
The Applicants in the case were represented by Tim Parker and Geoffrey Yeung (led by Abraham Chan SC), instructed by Messrs. O Tse & Co.
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Tim Parker
Tim Parker practices as a barrister in Hong Kong and in England and Wales, where he is a member of Blackstone Chambers (profile here). His practice focuses public and international law (including constitutional and administrative law, and human rights), civil / commercial disputes, and regulatory / competition matters. Highly ranked in the leading legal directories including Chambers and Partners and The Legal 500, Tim is praised in particular for his oral and written advocacy across the areas of administrative and public law, commercial disputes, and competition. In the field of competition law, Tim has acted in a wide range of matters before the Hong Kong Competition Tribunal and the UK Competition Appeal Tribunal. He successfully defended a listed IT hardware provider in Competition Commission v Nutanix Hong Kong Ltd & Ors [2019] 3 HKC 307, the first enforcement action brought under the Competition Ordinance (Cap. 619). He currently represents the regulator in Competition Commission v Linde (HKO) Ltd & Ors [2021] 5 HKLRD 175), alleging abuse of dominance in the medical gases market, and acts for the Harbour Plaza Hotels group in Competition Commission v Gray Line Tours of Hong Kong Limited & Ors [2022] HKCT 3 where facilitation of cartel conduct is alleged in respect of the market for tour, transport, and attraction tickets. Find out more from Tim’s profile. |
Geoffrey Yeung
“Geoffrey is a bright, insightful and hardworking junior with real depth and breadth of experience in public law matters.”
Legal 500 Asia-Pacific 2023, Administrative and Public Law — Rising Stars
“A very dedicated junior with a sharp legal mind. He is dynamic, with great instincts and a very sound pragmatic strategy far beyond his year of call. He is meticulous, astute and always reliable.”
Legal 500 Asia-Pacific 2022, Administrative and Public Law — Rising Stars
Geoffrey was called to the Bar in 2018. He served pupillage with Mr. Philip Dykes SC, Mr. Chan Chi Hung SC, Mr. Randy Shek, Mr. Keith Lam and Mr. Jeffrey Tam. He is a Bar Scholar and a Rhodes Scholar.
Geoffrey has a broad practice in general civil and commercial litigation, with a particular interest in constitutional and administrative law and cases with public law dimensions. He has acted in various civil and commercial matters ranging from shareholders’ disputes to adverse possession cases, and has conducted civil trials (both as led junior and as sole advocate) in English and Chinese. He also has experience in advisory work in relation to regulatory investigations and compliance obligations, including in the contexts of securities, competition and anti-money laundering legislation. He accepts instructions in all areas of Chambers’ practice.
More details can be found at Geoffrey’s profile.
This article was first published on 17 August 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.