CACV000018/1990
| Civil Appeal No. 18 of 1990 |
Headnote
An application for judicial review claiming the civil relief authorised by s 21K of the Supreme Court Ordinance is a civil cause or matter, and the Court of Appeal has jurisdiction to hear an appeal under s 13(2) of that Ordinance.
Allowing an appeal against the grant of a declaration that search warrant issued under s 17 of the Prevention of Bribery Ordinance was invalid held: -
| (1) | The terms of the warrant more than complied with the "statutory formula" in s 17(1). |
| (2) | Public interest immunity and sections 30 and 30A of the Prevention of Bribery Ordinance justify the giving of no particulars of "reasonable cause to believe", and precluded any investigation by the court until the need to maintain confidentiality had ceased: Reg v IRC ex p. Rossminster [1980] AC 952 applied. |
| (3) | By its express terms the warrant was limited to documents which enjoyed no legal professional privilege. |
| IN THE COURT OF APPEAL | 1990, No. 18 |
| (Civil) |
In re: | Application by a firm of Solicitors of Hong Kong |
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Coram: Hon Hunter & Penlington, JJA and Nazareth, J
Dates of Hearing: 15, 16 and 19 March 1990
Date of handing down of Judgment: 4 April 1990
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JUDGMENT
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Hunter, JA (giving the judgment of the court) :
1. This appeal is brought by the appellant, the Commissioner of the Independent Commission Against Corruption, against the grant by Jones J on 24th January 1990 on the respondent solicitor's motion of a declaration that a search warrant dated 26th October 1989 and issued by the Deputy Commissioner under section 17(1) of the Prevention of Bribery Ordinance (the Ordinance) Cap 201 is invalid. The appeal raises two points of some importance, namely: -
| (1) | The jurisdiction of the Court of Appeal to hear and determine appeals against the grant or refusal of relief by way of judicial review under RSC O53. |
| (2) | The requirements of search warrants issued under section 17(1) in relation to the offices of a solicitor, where an offence is "alleged or suspected to have been committed ... by that solicitor" within section 17(2). |
2. The background is this. Mr Charles Warwick Reid was until recently a Deputy Crown Prosecutor in charge of Legal Department's Commercial Crimes Unit. As such he was both a "public servant" and a "Crown servant" within the meaning of the Ordinance. In the summer of 1989 specific complaints were made to the appellant Commissioner, that Reid had received corrupt payments from a Mr X, a solicitor and the senior partner of the respondent firm of solicitors, and from a Mr Y, a member of the Bar. On 27th October 1989, whilst inquiries into these complaints were still proceeding, Mr Reid, Mr X and Mr Y were arrested by officers of the Independent Commission Against Corruption (ICAC) on suspicion of having committed offences under section 4 of the Ordinance.
3. On the preceding day, 26th October, Mr Stockwell, the Deputy Commissioner, issued the warrant in question. It reads: -
| "Whereas it appears to me that there is reasonable cause to believe that in a place or premises namely... (the offices of the respondent solicitors) ... there may be files, accounts, receipts, documents or other things which may be relevant to advantages offered to or accepted by, expenditure incurred by or pecuniary resources or property controlled by Charles Warwick Reid, which is evidence of the commission of an offence under section 4(l), section 4(2), section 10 (l) (a) and section 10 (1) (b) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong, those documents named being documents used in the commission of a criminal offence and therefore not being subject to Legal Professional Privilege. |
| Now therefore, in exercise of the powers vested in me by section 17(1) of the Prevention of Bribery Ordinance, Cap 201, I hereby empower: - |
| Mr Christopher John Kersaw |
| Mr Yu Chun Cheong |
| Mr Yip Kar Kwai |
| Miss Leung Lai On |
| investigation officers of the Independent Commission Against Corruption, to whom this Warrant is directed, to enter such premises or place, by force if necessary, and search the same. |
| Dated 26th October,1989 signed G.E. Stockwell, Deputy Commissioner". |
4. The material provisions in section 17 of the Ordinance are: -
| "17 (1) | If it appears to the Commissioner that there is reasonable cause to believe that in any premises or place, other than an office registry or other room of/or used by a public body, there may be anything which is or contains evidence of the commission of an offence under this Ordinance, he may by warrant directed to an investigating officer empower such officer to enter such premises or place by force if necessary and search the same.... |
| (2) | Without prejudice to any other law relating to entry and search, the chambers of counsel or the office of a solicitor are not subject to entry and search under this section or any warrant issued under this section except in the course of investigating an offence under this Ordinance alleged or suspected to have been committed by that counsel or that solicitor, as the case may be or by his clerk or any servant employed by him in such chambers or office". |
5. On 27th October an attempt was made to execute this warrant. It was not completed. The respondents were given an opportunity to consider their position, and in the face of these proceedings no further steps were taken.
6. On 6th November 1989 Sears J, upon the application of the respondents, granted the respondents: -
" | (1) | an injunction restraining the Commissioner of the Independent Commission Against Corruption and Independent Commission Against Corruption officers from acting pursuant to the said warrant or from making further attempts to execute the warrant until the validity of it is determined by this Honourable Court or until further order; |
| (2) | leave to move for Judicial Review and for relief which included the following:- |
| (a) | a declaration that the warrant dated 26th October 1989, issued by G.E. Stockwell, Deputy Commissioner of the Independent Commission Against Corruption is invalid; |
| (b) | an injunction in the above terms; |
| (c) | an injunction directing the Commissioner of the Independent Commission Against Corruption to yield up, return and deliver all papers, ledger cards, computer printouts, accounts, other documents seized and all copies thereof; |
| (d) | damages for the unlawful acts of Independent Commission Against Corruption officers purporting to act pursuant to the said warrant; |
7. On 29th January 1990 Jones J granted the respondents a declaration in the terms of (a) above, and adjourned consideration of the other heads of relief claimed. From that determination the appellant appeals.
8. At the outset of the hearing we considered and rejected a submission from the respondent that this appeal arose in a criminal cause or matter, so that this court had no jurisdiction to hear it.
9. The submission was founded upon a line of English authority stretching from Ex parte Alice Woodhall (1888) 20 QBD 832, with some vicissitudes to Carr v Atkins [1987] 1 QB 963. We were invited to treat this authority as establishing general rules or principles governing the proper identification of suits as civil or criminal causes or matters, and not simply as decisions upon the construction of the relevant English statutes. This court, it was said, should accordingly apply the source or origin test required by this authority. From this it would follow that this application for judicial review was criminal in origin; should accordingly be regarded as arising in a criminal cause or matter; and did not fall within the only criminal jurisdiction of this court, namely the specific jurisdiction given by section 13(3) of the Supreme Court Ordinance (Cap 4). It equally followed that O53 r13 which purported to confer jurisdiction upon this court was ultra vires in relation to appeals in criminal causes or matters.
10. In our judgment the initial premise was unsound. This line of English authority was overtly concerned with the construction of the relevant English statute at the time, which originally was section 47 of the Judicature Act 1873 and is now sections 16 and 18 of the Supreme Court Act 1981. At heart these sections took the same form: the grant of jurisdiction to the Court of Appeal: -
"To hear and determine appeals from any judgment or order of the High Court"
coupled with the prohibition that
| "No appeal shall lie to the Court of Appeal - |
| (a) | From any judgment of the High Court in any criminal cause or matter". |
11. Ex parte Alice Woodhall reveals both the problem and the chosen solution. The court had to determine the breadth of this prohibition based upon the presumed intention of Parliament. Nothing that we would now recognise as a criminal appellate process then existed. Conscious no doubt of the undesirability of creating such a process through the back door, the courts early decided to put "the widest possible interpretation" upon this exclusion. For similar reasons it was unreal for the court to look only at what Mellish LJ in Reg v Steel 2 QBD 37 called "the not strictly criminal proceeding" before the court. To give proper effect to the prohibition it had to look through and beyond those proceedings to their source or origin.
12. This English rule was the product both of the terms of the local statute and of conditions ruling in the 19th century. By 1970 these early conditions had totally changed in England and two different appellate routes, civil and criminal, were then open. In reliance upon this Lord Denning M.R. sought to modify and narrow the rule in R v Southampton Justices ex p. Green [1975] 2 All ER 1073, 1075 and R v Crown Court at Sheffield ex p. Brownlow [1980] 2 All ER 444, 449, it would now seem without success see Carr v Atkins [1987] 1 QB 963. We could see no reason, compelling or otherwise, to apply this rule to Hong Kong where the legislation and conditions are quite different.
13. Section 13 of the Supreme Court Ordinance grants by subsection (2) general civil jurisdiction to the Court of Appeal "from any judgment or order of the High Court in any civil cause or matter". By contrast the criminal jurisdiction of this court is not general or derived from any qualification to subsection (2). Subsection (3) basically grants specific jurisdiction by reference to named provisions in the Criminal Procedure Ordinance and the District Court Ordinance. In these circumstances it seemed to us that the simple question to be asked in this court was whether the Orders of Sears J and Jones J granting respectively an injunction and a declaration were made in a "civil cause or matter". The question should be answered by considering the nature of the cause, and of the relief sought and granted.
14. Civil and criminal jurisdiction is granted to the High Court by section 12 of the Supreme Court Ordinance in general comparative terms. In practice the division between these two functions is obvious. Normally one needs to look no further than the identity of the parties, the subject matter, and whether the governing procedure is to be found in the RSC or the Criminal Procedure Ordinance. The divisions are clear; we are aware of no hybrid situations. On occasions jurisdiction is granted to a criminal court to grant what might be called quasi civil remedies eg compensation under section 73 of the Criminal Procedure Ordinance or a criminal bankruptcy Order under section 84A. But these provisions result in the grant of specific power to a criminal court to give relief differing from and supplementary to that obtainable civilly. We are aware of no occasion where both civil and criminal courts purport to grant identical relief.
15. It is against this background that the two sections in the Supreme Court Ordinance dealing with judicial review must be considered. The first is section 21I. This preserved existing jurisdiction, and it may be said recognised by subsection (3) that on occasion the modern equivalent of an order for mandamus may be sought expressly in a criminal context. Section 21K introduced and authorised the radical changes we have in Order 53. In this respect Hong Kong followed England where the changes were said to enable a party to obtain "on a single application the kind of relief that was formerly obtainable only in an ordinary civil action against a public officer or authority, and the kind of relief that was formerly obtainable only upon an application for a prerogative order of mandamus, prohibition, or certiorari" per Lord Diplock in Reg v IRC ex p. Rossminster [1980] AC 952, 1013C.
16. The first question arising on section 21K is whether when enacting it the legislature intended the grant or refusal of judicial review to form part of the civil or criminal jurisdiction of the High Court. This seemed to us to admit of only one answer. The reference to "rules of court" and the authorisation of the grant of the peculiarly civil remedies of injunction, declaration and damages point irresistibly to a civil conclusion. It seemed to us that by this section the legislature was clearly saying that in its current form the civil components in judicial review are so strong that an application which claims the civil relief authorised by section 21K is to be regarded as a civil cause or matter.
17. The second question is whether this conclusion applies to all applications for judicial review. We think there is very strong ground for saying that it does, and that by recognising both potential criminal origins in section 21I and then by channelling all judicial review applications together by section 21K under Order 53, the legislature was providing for all. There are we think grave difficulties in the way of an alternative submission advanced by Mr Ching that the legislature was intending to create some hybrid and was granting jurisdiction to both the criminal and the civil divisions of the High Court. For the purposes of this appeal it is unnecessary to determine this question. It suffices to say that this application for judicial review which claimed only the civil reliefs made available by section 21K, and which succeeded in relation to an injunction and a declaration, was in our view clearly a civil cause or matter.
18. We return to the substance of the appeal. Jones J was persuaded to grant a declaration basically it would seem for two reasons: -
| (1) | First the warrant was too widely drawn as it lacked particularity and gave insufficient detail of any specific offence; |
| (2) | The appellant had failed to put before the court sufficient evidence to show that the Deputy Commissioner could have had "reasonable cause to believe" within section 17(1). Section 30A was no obstacle and provided no excuse as the judge held that it only relates "to proceedings at the trial and has no relevance to the investigatory process". |
19. At the outset it seems to us necessary to distinguish between the requirements of a valid warrant under section 17(1) generally; and the special requirements of a valid warrant permitted by section 17(2) which relates to the offices of a solicitor and may give rise to a question of legal professional privilege. No such distinction seems to have been drawn by the judge, perhaps because, most unfortunately, he did not have the benefit of having cited to him the decision in Reg v IRC ex p. Rossminster [1980] AC 952. We shall therefore first consider the basic requirements of a warrant issued under section 17(l) and the judge's reasoning in relation to such requirements, in the light particularly of that authority.
20. The warrant in Rossminster was issued under section 20C of the Taxes Management Act 1970 the material parts of which provider : -
"(1) | If the appropriate judicial authority is satisfied on information on oath given by an officer of the board that (a) there is reasonable ground for suspecting that an offence involving any form of fraud in connection with or in relation to tax has been committed and that evidence of it is to be found on premises specified in the information and (b). . the authority may issue a warrant in writing authorising an officer of the board to enter the premises ... and search them". |
21. The warrant was issued out of the Central Criminal Court and included the following: -
"Information on oath having been laid this day by Raymond Quinlan in accordance with the provisions of section 20C of the Taxes Management Act 1970 stating that there is reasonable ground for suspecting that an offence involving fraud in connection with or in relation to tax has been committed and that evidence of it is to be found on the premises described in the 2nd Schedule annexed hereto. You are hereby authorised to enter those premises .... and search them; and on entering those premises with this warrant you may seize and remove all things whatsoever found there which you have reasonable cause to believe may be required as evidence for the purposes of proceeding in respect of such an offence".
22. The case well illustrates the difficulty of reconciling the public interest in the preservation of privacy and the public interest in the detention of crime, and how readily this problem can divide judicial opinion. The English Court of Appeal was offended by the breadth of the warrant and by the circumstances of the resulting searches. Drawing some support from 18th century authority they held the warrant to be too wide and invalid. The contentions that court accepted were conveniently summarised by Viscount Dilhorne at p 1005: -
"The respondents contend that the warrants should have given some indication of what was being searched for. To be valid, they said, the warrants should have specified or sufficiently identified the nature of the offence or offences suspected. They say that the information contained in the warrants was not specific enough to enable the officers of the board, the owners of the documents and the respondents to know what the officers were authorised to search for, seize and remove, or to enable the court to determine Whether the officers had had belief and reasonable cause to believe that a document might be required as evidence".
These contentions are strikingly similar to those which found favour with the judge.
23. In rejecting these contentions the majority in the House of Lords emphasized the following: -
| (1) | The validity of a search warrant purported to be issued under legislative authority depends upon whether it is authorised by the terms of that legislation. If it is the occupier has no answer; if it is not, the search is an act of trespass. |
| (2) | "What has to be disclosed upon the face of the warrant depends upon the true construction of the statute" per Lord Diplock p 1008. "I am unable to escape the conclusion that adherence to the statutory formula is sufficient" per Lord Wilberforce p 999. |
| (3) | The court should look critically but not destructively at the legislation when construing it. "Furthermore, while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process" per Lord Wilberforce p 998. See also Lord Diplock p 1008. |
| (4) | Resort to 18th century authority like Entick v Carrington (1763) 19 State Tr 1029 (an authority relied upon both here and below) was misplaced and unhelpful. If the terminology of the legislation was to be cut down it must be by a process of necessary implication from the legislation alone per Viscount Dilhorne p 1005; Lord Diplock p 101U and Lord Scarman p 1023. There was no common law rule which could produce this result, Lord Scarman p 1026. Entick's case may reveal laudable judicial control over the executive abuses of the then Secretary of State, but it may equally surprise with observations like: - "Whilst the press is free, I am afraid it will always be licentious" per Lord Camden CJ at p 1069. |
| (5) | Public interest immunity and the need not to impede the investigation figured largely in their Lordship's reasoning. They applied Lord Reid's dictum in Conway v Rimmer (1968) AC 910, 953: - |
| "The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities". |
| These considerations led to the rejection of the argument on necessary implication and to the refusal of any further information beyond that expressly required by the statute. Lord Diplock pointed out, p 1009: - |
| "The matter is still at the investigatory stage; good grounds must exist for suspecting that a tax fraud has been committed but as yet there is not sufficient evidence in a form admissible at a criminal trial to prove it. The sole purpose of the search is to obtain such evidence". |
| (6) | Public interest immunity was also held to deny the recipients any right to information relating to the "reasonable grounds" upon which the warrant was alleged to be based. The same considerations also prevented any effective interlocutory inquiry into such matters. Their Lordships accepted that the court had full power to investigate the factual basis for "reasonable cause to believe", Nakkuda Ali v Jayaratne [1951] AC 66 but pointed. out that this had necessarily to be postponed until the information had ceased to be confidential. The position was clearly summarised by Lord Scarman. He recognised first that upon his construction of the statute "the prospect of an immediate judicial review of the exercise of the power (to search) is dim" p 1022. Later he said: |
| "As my noble and learned friends, Lords Wilberforce and Diplock, have emphasised, trial (or an investigation in substitute for trial, if undertaken in the proceedings for judicial review), should ordinarily be delayed until after criminal proceedings have been completed or abandoned, or if none are begun, after a reasonable period in which to take a decision whether or not to institute such proceedings, has elapsed" p 1026. |
24. The application of these principles to this warrant leads first inevitably to the conclusion that the particulars of the offence which it contains go considerably beyond the "statutory formula" in section 71 and suffice to satisfy its requirements. It is true that unlike both section 20(C) of the English taxing statute and indeed section 10B of the ICAC Ordinance, Cap 204, section 17 contains no provision for judicial intervention. But this is plainly what the legislature deliberately intended, and for reasons to which we will revert it seems to us necessary and appropriate to the present circumstances.
25. Secondly, the principles of Rossminster undermine the judge's whole approach to the evidence. The Commissioner has a duty under section 12 of the ICAC Ordinance, Cap 204 to: -
| " (a) | | receive and consider complaints alleging corrupt practices and investigate such of those complaints as he considers practicable; |
| (b) | | investigate any alleged or suspected offences under ... the Ordinance . |
| (c) | | investigate any conduct of a Crown servant which, in the opinion of the Commissioner, is connected with or conducive to corrupt practices." |
It may be significant that the word in (a) is "practicable" not "credible". The receipt by the Commissioner of the complaints described triggered this duty, and of itself prima facie gave "reasonable cause to believe" that at these premises "there may be anything which is or contains evidence". Both public interest immunity and the combined effect of sections 30 and 30A of the Ordinance enable him to refuse to give or to reveal information winich may prejudice his investigation. Section 30(1) makes it an offence "without lawful authority or reasonable excuse ... to disclose to any other person either the identify of any person who is the subject of such an investigation or any details of such an investigation". When it comes to civil or criminal proceedings and to the threats of compulsion which may then arise, the Commissioner has the added protection of section 30A. We cannot accept the judge's very limited view of this section.
26. The Commissioner has put before the court sufficient evidence to discharge the initial burden upon him. No adverse inference, such as we think must have been in the mind of the judge, can be drawn from his refusal to reveal any more or in any way to prejudice his investigation. It follows that for the reasons given in Rossminster these matters can be tested only at some future hearing and not now.
27. We therefore find ourselves unable to accept the judge's reasoning or his conclusion insofar as they are sought to be upheld by reference to the requirements of section 17(1). We turn to consider the problem of legal professional privilege.
28. The decisive and peculiar feature here is that this case is within section 17(2). An offence is "alleged or suspected to have been committed ... by that solicitor". This opens the door to the use of section 17(1) and suggests that it is the appropriate procedure. This is because no privilege attaches to criminal communications. In the words of Stephen J in Reg v Cox and Railton 14 QBD 153, 167: -
"The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not 'come into the ordinary scope of professional employment' ".
29. No privilege attaches if the criminal purpose or intent is that of the client, whose privilege it is, the solicitor, or a "third party who is using the client as his innocent tool", Reg v Central Criminal Court ex p. Francis and Francis (1988) 3 WLR 989, 1018 per Lord Goff. The most important reason for this Lord Goff said was: -
"That the disclosure of the third party's iniquity must, in the interests of justice, prevail over the privilege of the client, innocent though he may be" p 1018.
The same reasoning applies equally to the alleged iniquity of the solicitor.
30. It seems to us that this warrant was properly and carefully drawn with these principles in mind. It is specifically limited to "documents used in the commission of a criminal offence". In this context this means documents which the searcher has reasonable cause to believe evidence the commission, at least, of one of the offences named in the warrant. We say at least because the principle of Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 as applied in Rossminster both by Lord Diplock p 1010 and Lord Scarman p 1023 probably justify the seizure under section 10C(i)(c) of the ICAC Ordinance of any document evidencing another offence under the Ordinance. This warrant is deliberately restricted to unprivileged documents, so it seems to us successfully to meet the problem of legal privilege.
31. In argument both here and below much reliance was placed upon the decision of Davison CJ in Rosenberg v Jaine [1983] NZLR 1, and of the Supreme Court of Canada in Descoteau et al v Mierzwinski and A-G of Quebec et al (1982) 141 DLR 590. They indeed well illustrate the problem of balancing the competing public interests in the protection of professional privilege and in the detection of crime. But they are not directly relevant or of assistance, as they concerned innocent solicitors, as indeed have all the reported cases of which we are aware. Secondly we note that no question of public interest immunity was raised in Rosenberg, and this could have had considerable bearing upon the information which it was said the police "chose" to withhold. Thirdly, if an undesirable element of lottery is to be avoided, which is implicit in any requirement that the draftsman of the warrant who is ignorant of the procedures and practices in the particular solicitor's office has to get it right "blind", it seems to us that there is everything to commend either a two-stage inquiry or the introduction of the alternative processes now provided for by sections 27 (Orders to make material available) and 28 (search warrants) of the Drug Trafficking Offences Act 1986. The immediate search warrant process in relation to a solicitor's office might then be "justified in comparatively rare occasions and generally confined to cases in which the solicitor was suspected of complicity in the crime" per Lord Griffiths in Ex p. Francis and Francis at p 1009.
32. Finally it was objected that the section 17 procedure gave too much power to the Commissioner and to the searchers and was so unfair that the court should strive to limit or restrain it. This raises the question of the balance of competing public interests which is a domestic matter for the legislature not the court. But having carefully considered all the objections and suggestions put in argument, we are clearly of the opinion that if effective steps are to be taken to detect crime of the type alleged, at the legal level alleged, this procedure is necessary and readily justifiable.
33. Someone, the Commissioner, has to be empowered to investigate. Given "reasonable cause to believe" someone has to search. If the application had here been made under section 10B of the ICAC Ordinance, the magistrate could only consider the apparent validity of the case to enter, not the detail. Section 17 is designed to meet this situation. The detailed search has to be carried out by persons very familiar with the case and with the totality of the information then in the Commissioner's possession. The only practicable safeguards are their integrity, and the fact that they must have reasonable cause to believe that any particular document evidences crime. In the first instance it may be impossible to consider every document individually, and suspicious files may have to be removed as a whole. But each must then be fully and carefully examined, and only those documents retained which pass the reasonable cause test. These factors plus the searchers' knowledge that their choices may thereafter be scrutinised by the court, constitute the best safeguards that can be devised. No more suitable or fairer procedure was suggested in argument before us.
34. In our judgement therefore this warrant is valid. We allow the appeal; set aside the order of Jones J; and dismiss the respondent's application for judicial review. In handing down this judgment we make an order nisi that the respondents pay the appellant's costs here and below.
Representation:
Neville Sarony (M/s Herbert Smith) for Appellant
Charles Ching, QC, Patrick Fung (M/s Victor Ng & Co) for Respondent