HK SFC is empowered to access to email accounts and digital devices

20 Feb, 2020 02:45
source: Regulation Asia

Original title: HK Court Upholds SFC Power to Access Digital Devices in Investigations

The SFC is empowered to access to email accounts and digital devices which may contain information relevant to its investigations, the Hong Kong court said. The judgment can be accessed here.

A Hong Kong court has dismissed five judicial review applications against the SFC (Securities and Futures Commission) relating to a search operation it conducted as part of a probe in suspected regulatory breaches.

The judicial review applications were brought separately and concurrently five individuals seeking to search warrants issued in July 2018 on the basis that they were unlawful or invalid for want of specificity.

The applicants also alleged that the SFC’s seizures and continued retention of digital devices, and SFC notices seeking the production of emails or passwords for the devices or email accounts, were unlawful and violated their right to privacy under Hong Kong law.

Justice Anderson Chow rejected the five applications and ordered them to pay the SFC’s legal costs, saying the search warrants in question plainly authorised digital devices to be seized by the SFC.

“The words ‘document’ or ‘record’ in the SFO should not be narrowly construed, having regard to the manner in which information and data are nowadays being created, transmitted and stored in digital devices,” he said.

“The SFC is empowered, under the SFO, to require the applicants to provide means of access to email accounts and digital devices which contain, or are likely to contain, information relevant to its investigations even though the email accounts and digital devices would likely also contain other personal or private materials which are not relevant to the SFC’s investigations.”

Justice Chow also said the seizures and retention of the digital devices were rationally connected to a legitimate aim, and they were “reasonably necessary in the circumstances of the cases”.

The cases relate to the SFC’s ongoing investigations concerning a potentially fraudulent private placement of Aeso Holdings shares in 2017, and deeply-discounted bond placements by Skyframe Realty Holdings and China Agri-Products Exchange.

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