On 14 April 2023, the Court of Appeal (“CA”) in Tam Sze Leung v Commissioner of Police [2023] HKCA 537 overturned a Court of First Instance (“CFI”) decision which declared that the No Consent Regime as operated is (a) ultra vires sections 25 and 25A of OSCO, (b) not prescribed by law and (c) disproportionately interferes with rights and in particular to the right to the use of property.
The Facts
The Applicants were under suspicion by the Securities and Futures Commission (“SFC”) for having committed breaches of the Securities and Futures Ordinance, Cap. 571 for “stock market manipulation”.
The SFC referred the matter to the police for investigation and, in turn, the police informed a number of banks of the investigation and requested the banks’ action. The banks then submitted “suspicious transaction reports” (“STRs”) to the Joint Financial Intelligence Unit (“JFIU”), a unit jointly run by staff members of the Hong Kong Police Force and the Hong Kong Customs & Excise Department. LNCs were then issued and eventually the accounts were frozen by the banks.
The way the LNC regime had been operated by the police was put into question by the Applicants who challenged, by way of judicial review, the decision of the Commissioner of Police to issue and maintain LNCs in relation to their bank accounts.