Update – Police’s Administrative Freeze of Bank Accounts Ruled Unconstitutional

On 11 February 2022, we published an article discussing a judgment of the Court of First Instance (CFI) (See Tam Sze Leung & Ors v Commissioner of Police [2021] HKCFI 3118).  In that judgment, after holding that the longstanding practice of the Commissioner of Police to issue “Letters of No Consent” (LNC) was unconstitutional, the Court postponed the granting of relief.

On 23 March 2022, the CFI granted relief in its decision [2022] HKCFI 772, in which the LNCs and the LNC Regime as operated by the Commissioner of Police were declared “ultra vires sections 25 and 25A of Organised and Serious Crimes Ordinance (Cap 455) and incompatible with articles 6 and 105 of the Basic Law“.  In other words, the current position in law is that an LNC is unconstitutional, and as such the Police may not use it as a tool to “administratively” freeze a bank account which is suspected to hold proceeds of crime.

Although Tam Sze Leung is a first instance decision, and the Commissioner of Police may lodge an appeal against the decision in the near future, until we have a higher court decision ruling to the contrary, victims (in particular, those of cyber fraud) should give serious consideration to applying for an injunction to minimise the risk of dissipation of the stolen funds.

14 April 2022