The high court closed the door to the National Security Law and ruled that the organization involved must hand over the information of the recipients of donations. The list of large donations has been handed over to the police (Zhongzhong News)

Public news found that the High Court handled a national security law hearing behind closed doors in late October. Five people involved in a certain organization received a material submission order from the police this year and were asked to hand over the list of large donors and recipients. , the five subsequently applied to the court to cover up part of the recipient's ID number, phone number, address, physical characteristics, etc. However, in a written judgment issued in late November, Supreme Court Justice Li Yunteng rejected the application as having no public interest and said the court should not intervene in the ongoing criminal investigation.

The five-person application belongs to the high court's confidential miscellaneous cases. The five persons involved in the judgment are identified by J, H, N, C, and D respectively, and the respondent is the Commissioner of Police. For legal reasons, Zhongxin could not disclose the names or affiliations of the five people involved. Public News has inquired with the Department of Justice and the police to confirm the applicant's institution, but the Department of Justice replied that it would not comment on individual cases, and stressed that under the National Security Law Implementation Rules, any person makes disclosures that prejudice the investigation without reasonable excuse, or disregards whether the disclosure is harmful to the investigation. Investigating is a crime, emphasizing that "no one should attempt to make any disclosure that may violate the above requirements." (For the full text of the reply from the Department of Justice, see the appendix at the end of the article)

As for whether the case has received an application for appeal, the Department of Justice also said it would not comment on individual cases.

After the National Security Law came into effect this time, the second court issued a written judgment to delete the content of the department after the closed-door hearing of the National Security Law submission process. Although confidential hearings are not uncommon in the courts, according to the Judiciary's 2020 annual report, the High Court handled 440 confidential miscellaneous cases that year, but rarely issued written judgments in the past. The first written judgment of the National Security Law's order to submit information was handed down in April last year, involving WhatsApp messages of a company and its employees, etc. At that time, Judge Li Yunteng ruled that the information was not news material, but some of the information was protected by the legal profession.

The Department of Justice stated that this time, with reference to Article 5 of Order No. 116 of the Rules of the High Court concerning the Organised and Serious Crimes Ordinance, the application under the relevant order should be heard in private. Review Order No. 116, which corresponds to the submission of information/material requirements under the Organised and Serious Crimes Ordinance , mentions that applications made by the Secretary for Justice, whether made by the Hearing in the form of".

The organization involved in the case has submitted to the police last year the names, phone numbers, addresses, etc. of the donors who have donated more than 100,000 yuan from a certain month in 2019, as well as the names, phone numbers, addresses, etc. agreement or legal arrangement. When the police responded, they did not respond to any information on how many donors they had received. They only said that they would not comment on speculation about the judicial process and should not disclose any further action details. They only reiterated that government actions must be carried out in accordance with the law, evidence and mechanisms.

According to the verdict, five individuals received two orders this year to submit materials under the implementation rules formulated under Article 43 of the National Security Law, and each was required to hand over copies of all communications from the organization and the following materials:

1. From a certain month in 2019, (the organization's) financial statements, accounting accounts, transaction records and relevant supporting documents, or agreements, business records, meeting minutes (including meetings held outside Hong Kong through communication technology);

2. From a certain month in 2019, the details of the donors involving donations of more than 100,000 Hong Kong dollars (including names, types and numbers of identification documents, contact numbers and addresses);

3. From a certain month in 2019, information on recipients of donations or subsidies involving more than HK$50,000 (including name, type and number of identification documents, contact phone number and residential address), and the reasons for the approved donation or subsidy , and funded activities or time information; and

4. Any agreement/trust deed/legal arrangement between (the organization) and (a third party) or other local/overseas political organization since a certain month in 2019.

The five later submitted Parts II and IV, namely information on large donors and external agreements, and after a period of grace granted by the police, the five applied to the High Court to cover up the personal details of the recipients of donations, including their telephone numbers Number, residential address, email address, 4 digits after ID card, psychiatric or medical details. The latter includes medical costs and methods of receiving treatment. Later, the five people submitted the temporarily covered information of the beneficiary, and three days later, with the witness of both parties, the uncovered information of the beneficiary was sealed.

Pang Yiu-hung, SC, representing the applicant, said that the aided person provided information to the organization under the condition that the confidentiality of the information was ensured, and the Hong Kong Human Rights Law and the Personal Data Privacy Ordinance protected the right to privacy and involved the public interest. He pointed out that the government should prove the relevance and use of the personal data of the recipients for the investigation.

The Department of Justice, representing the Commissioner of Police, retorted that the application is equivalent to questioning the relevance of the relevant information to the investigation, and the court has already considered the principles of confidentiality and privacy when considering the issue of the production of materials order. The Department of Justice also stated that, considering the primacy and importance of effectively investigating national security cases, and that there is no special difficulty or injustice that prevents the handover of information, confidentiality and privacy are not the reasons for amending the warrant.

Judge Li Yunteng mentioned in his judgment that although the court has the discretion not to issue a material surrender order, the discretionary space is limited and strong evidence must be presented. Li Guan borrowed the Court of Final Appeal's previous handling of the threshold for handing over information orders under the Prevention of Bribery Ordinance, and agreed with the Department of Justice's point that the police should be given room to decide what is related to the case during the investigation stage, especially since this case involves national security, the court cannot undermine the investigation. Fairness and effectiveness.

Li Guan also dismissed the claim that the warrant affects the privacy of the recipient. On the one hand, the implementation rules of the National Security Law stipulate that the information required by the warrant shall not be refused for breach of confidentiality or causing others to be convicted. Li Guan continued that the court has ruled in the past that the investigation and monitoring of serious crimes is in the public interest and is more important than the privacy rights of suspects. The current police investigation is aimed at the direction of funds and whether the funds are used for legitimate purposes, and believes that the information of the recipients is complete related. Li Guan also pointed out, "Furthermore, it would not make sense to suggest that the data be deleted, because the police may have access to complete personal data through other sources, such as banks or hospitals."

Since the court has generally dealt with the relevance and purpose of the request for submission of materials when the prosecution applies for a warrant, Li Guan said that in principle, the court should not accept an application to revoke or amend the submission of materials order based on the same grounds. However, Li Guan also said that the court, as the last line of defense against abuse and squeezing, can re-examine the material submission order, and believes that a similar mechanism should be introduced under the implementation rules of the National Security Law. He also suggested that when resolving similar applications, it is better to seal the relevant information in front of both parties as in this case.

In terms of legal costs, Li Guan said that considering that the five related parties who applied were not out of personal interests, but felt responsible for the interests of others, but the application for modification of the warrant lacked a basis, ruling that the Chief Justice could be granted the right to modify the warrant. costs, and an application for an extension of a warrant is not an order for costs.

Case number: HCCM 191/2021

Appendix: In response to your enquiry, the spokesman for the Department of Justice replied as follows:

The Department of Justice does not comment on individual cases.

Clause 5 of Schedule 7 to the Regulations for the Implementation of Article 43 of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region of the People's Republic of China (the Regulations) provides that where a court has made an order under clause 2 or 3 of that Schedule, then any person who knows or suspects that an investigation to which an order has been made or applied for is in progress, without lawful authority or reasonable excuse, makes any disclosure with intent to prejudice the investigation, or makes any disclosure without regard to whether the disclosure would prejudice the investigation, commits an offence and is liable on conviction on indictment to a fine and to imprisonment for 7 years. The Department of Justice will not confirm the identities of the persons or organisations involved in the relevant orders in this case. Nor should anyone attempt to make any disclosures that may violate the above.

In addition, section 6 of Schedule 7 to the Regulations provides that the rules of court applicable to any application made under that Schedule may refer to the rules of court applicable to similar applications in Hong Kong law (in particular under the Rules of the High Court made under section 30 of the Offences Ordinance (Cap. 455), with necessary modifications. The relevant High Court rule is Order 116, pursuant to section 5 of that order, applications to which the order applies, and any other applications provided for by the order, shall be heard in private.