The Court of Appeal so held in Secretary for Justice v Tam Kit I [2022] HKCA 454, [2022] 2 HKLRD 310, [2022] 3 HKC 652 in which Nigel Kat SC, Paul Wu and Benson Tsoi acted for Ms Tam.

 

In January 2011, the SJ obtained a restraint order against Ms Tam under s.15(1) OSCO. In May 2014, the SJ applied for a confiscation order under s.8(1)(a)(ii)(B) on the grounds that she had “absconded”. Campbell-Moffat J found and held that she had not “absconded” within the meaning of the section and refused the application for the confiscation order.

 

In January 2019, the Respondent applied to discharge the restraint order. Campbell-Moffat J refused to discharge.

 

The Court of Appeal (Cheung and Chow JJA) allowed Ms Tam’s appeal, declaring that the restraint order was discharged by operation of law upon the conclusion of the confiscation application.

 

The Court of Appeal held that the restraint order was automatically discharged because s.15(5)(b) provides that a restraint order shall be discharged “on the conclusion of the proceedings or application concerned”and s.2(16A) provides that an application for a confiscation order made in respect of a defendant where s.8(1)(a)(ii) or s.8(7A) is applicable is concluded when, inter alia, the Court of First Instance or the District Court makes the decision not to make such an order. It was not in dispute that the confiscation application is such an “application concerned”.

 

As Campbell-Moffat J had decided not to make the confiscation order, the application was concluded and, by operation of s.15(5)(b), the restraint order was automatically discharged.

 

The SJ has since obtained leave to appeal to the Court of Final Appeal: see [2022] HKCFA 19. The appeal is listed for hearing on 28th February 2023.

 

The judgment of the Court of Appeal can be found here. The judgment of the Leave Committee of the Court of Final Appeal can be found here.