Case Detail

HCAL 70/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 70 OF 2007

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	IN THE MATTER of an Application by Messrs Philip KH Wong, Kennedy YH Wong & Co and Philip (Nominees) Limited for Judicial Review
	and
	IN THE MATTER of two Warrants to Enter and Search Numbered 5712/2007 and 5713/2007 and Issued by a Magistrate on 22^nd May 2007 under s10B of the Independent Commission Against Corruption Ordinance, Cap 204

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	PHILIP K H WONG & KENNEDY Y H WONG (a firm of solicitors)	1^st Applicant
	PHILIP (NOMINEES) LIMITED	2^nd Applicant
	and
	THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION	Respondent

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Before: Hon Saunders J in Court

Date of Hearing: 23 July 2008

Date of Judgment: 7 August 2008

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J U D G M E N T

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Introduction:

1. The background to this matter is set out in a judgment given by me on 14 December 2007, in which I held that the two search warrants at issue should be quashed, consequent upon a failure of ICAC to follow procedures set down in s 4 & 5 Organised Serious Crimes Ordinance, Cap 455 (OSCO).

2. On 28 March 2008, that decision was reversed by the Court of Appeal, and the warrants found to be validly issued, subject to a further argument in relation to legal professional privilege (LPP) that had been reserved in the proceedings originally before me.

The issue now:

3. The primary issue now involves the determination of which of two propositions is correct. They are, first, that propounded by Mr Dykes for the Applicants:

When a lawyer’s premises are to be searched pursuant to a search warrant, as a matter of law, conditions must be attached to the warrant designed to minimise the risk of LPP materials being seized, or to protect putative LLP materials pending resolution of the question as to whether they do constitute such material.

Or, second, that propounded by Mr McCoy for the Commissioner:

The attachment of such conditions is merely a matter of “best practice” so that a failure to attach such conditions will not invalidate the warrant.

4. This question was deferred in the original hearing as the Court of Appeal were soon to determine Rmbsa Corporate Services Ltd & Anor v Secretary for Justice, CACV 327/2006, which it was then thought would provide the definitive answer to that question. The decision in that case was handed down on 14 February 2008.

The position of Philip (Nominees) Ltd:

5. Philip (Nominees) Ltd, (Nominees), is a company operated by the 1^st Applicant, (the Solicitors). The company provides corporate services and company secretarial services. In my judgment of 14 December 2007, I said that Nominees shared the same premises as the Solicitors. That is not correct. The Solicitors and Nominees occupy adjacent premises on the same floor of the same building, but, quite properly, in accordance with the requirements of the Law Society, the two offices are kept quite distinct.

6. The decision of the Court of Appeal in Rmbsa is conclusive in so far as Nominees is concerned. In Rmbsa the search warrant was directed at documents belonging to a company which may or may not be a client of a law firm, and in relation to the affairs of companies and connected individuals for which that corporate entity (not the law firm) provided corporate (not legal advisory) services: see Rmbsa, para 44. Nominees is in precisely the same position. Nominees is a company which provides corporate services and company secretarial services. It provided corporate services and company secretarial services for the corporate subject of the search warrant. In character Nominees is, in all respects, identical to the subject of the warrant in Rmbsa.

7. The Court of Appeal held that, in relation to such a search warrant, the absence of conditions to protect LPP did not invalidate the warrant. The unsuccessful appellant in Rmbsa, the corporate services provider, sought leave from the Court of Appeal to appeal to the Court of Final Appeal. Leave was refused. Leave to appeal was sought from the Court of Final Appeal, and the application was dismissed under Rule 7(2) of the Hong Kong Court of Final Appeal Rules, without hearing. I accept Mr McCoy’s submission that the law as to the requirement for LPP conditions on search warrants in relation to entities other than solicitors is now clearly stated by Rmbsa.

8. Mr Dykes did not challenge the proposition that in so far as Nominees is concerned the challenge to the warrant fails and the application for judicial review must be dismissed. I note that a claim for LPP was made in relation to 3 of the 55 items seized from Nominees. I will deal with the disposition of that claim later in this judgment.

The position of the Solicitors:

9. The situation in relation to the Solicitors is different. Rmbsa did not deal directly with the question of the search of a solicitor’s office.

10. It must be beyond argument that, when a search warrant is sought in relation to the documents of a client of a firm of solicitors, in that solicitor’s office, there will be a reasonable apprehension that there will be present in that office documents to which the client, the subject of the search warrant, may be able to assert LPP. Consequently, the factual circumstances of this case raise directly the question of the requirement, if any, of conditions to be attached to a search warrant to protect LPP. It is accordingly necessary for me to address this issue which did not arise directly in Rmbsa.

The scope of a search warrant:

11. There is nothing in s 10C Independent Commission Against Corruption Ordinance Cap 204, (ICACO), the statutory provision under which the warrants were issued, that permits seizure, pursuant to a search warrant, of documents to which LPP attaches. Even if documents to which LPP attaches fall within the class of documents described in a search warrant there is no right to seize those documents. They are privileged, and not subject to seizure.

12. But at the same time, a mere assertion on the part of the solicitor that LPP is attached to a particular document is not determinative of that fact.

13. In order to avoid the obvious conflict that may arise when an investigator, be he an ICAC investigator, a police officer, or any other officer lawfully authorised to search, wishes to seize documents which are subject to a claim for LPP, a practice has developed to protect the position. That practice is that when the warrant is executed, a solicitor will usually be present, who makes the claim for LLP, and the relevant documents are sealed, without inspection at the time by the investigators, and subsequently, with or without the assistance of the Court, the validity of the claim for LPP is determined.

14. Mr McCoy did not argue with Mr Dykes’ description of paragraph 48 of the judgment of Stock JA in Rmbsa as characterising the practice described above as being the “best practice”, and that it was desirable that such conditions should be attached to a warrant to be issued in circumstances where issues of LPP might arise.

The importance of LPP:

15. The importance of LPP is set out in the judgment of Sears J. in Re Ip & Willis [1990] 1 HKLR 154 at 158E- 159I. A clear statement as to LPP is set out in Kaplan J. in Shun Tak Holdings Ltd v Commissioner of Police [1994] 2 HKC 363 at 368G-369G. In Pang v Commissioner of Police [2002] 4 HKC 579 at 587H-589H, Hartmann J. described LPP as a “fundamental human right”. That must be right.

16. The privilege is now effectively enshrined by Articles 29, 30, 35 & 87 of the Basic Law, and Article 14 of the Hong Kong Bill of Rights. In A Solicitor v The Law Society of Hong Kong (2006) 9 HKCFAR 175, Bokhary PJ at p 185I-186C, cited with approval the decision in R v Derby Magistrates’ Court ex p B [1996] AC 487 at 507D, where LPP was described as “a fundamental condition on which the administration of justice as a whole rests”.

17. Consequently, any consideration of a search warrant directed at the search of a solicitor’s office must be undertaken with this fundamental nature of the rights of Hong Kong citizens as the primary entitlement to be upheld.

The conditions sought:

18. Mr Dykes now says that LPP having been enshrined in the Basic Law as a fundamental human right, it is no longer sufficient, in relation to a search of a solicitors office, to rely upon a practice. Mr Dykes says that the law should impose specific conditions to be attached to a warrant for the search of the solicitor’s office, whether that search be under s 10C ICACO, or any other statutory provision, and that in the absence of such conditions the warrant would have been unlawfully issued and the search and seizure undertaken pursuant to it equally unlawful.

19. The conditions which Mr Dykes says should be imposed on the warrant are:

(1) a lawyer must be present during the search;

(2) if a lawyer from the firm of solicitors to be searched is not available, then an independent lawyer must be provided to give advice to the investigators;

(3) the search must be conducted during office hours or on hours specified through prior notice;

(4) the identities of the officers authorised for the search must be specified in the warrant;

(5) a clear procedure for handling seized materials which are subject to disputed claims of LPP must be set out;

(6) there must be limitations on requests for information search arising under s 15(1) Prevention of Bribery Ordinance[1].

20. The case for the Solicitors is that because none of these conditions were attached to the warrant for the search of their premises, the warrant was unlawfully issued.

The law in other jurisdictions:

21. Mr Dykes argued that the absence of conditions that were necessary to protect LPP would invalidate the warrant. He said it was not sufficient that there be merely a “best practice”, giving rise to a notion of “potential invalidity” of the warrant, with actual invalidity depending upon the manner of execution of the warrant, and whether the required safeguards were present, either through the arrangements of the searching party or by choice.

22. The submission was based upon a consideration of the law in New Zealand and Canada.

(a) New Zealand:

23. In Rosenberg v Jaine [1983] NZLR 1, a search warrant was issued entitling police to search a solicitor’s appointment book and/or correspondence relating to appointments. Two solicitor’s business cards had been found near a stolen car, each card had written on at a time and date. The police speculated that the person who had the appointments may have been involved in the taking of the vehicle. The warrant was held to be too wide and general in its terms, as the solicitor could not identify the client or clients concerned, and was not sufficiently specific to include documents falling within LPP.

24. Davison CJ, at p 7, reviewed the law as to LPP finding that it was firmly established in New Zealand as a substantive rule of the common law. Because the documents sought in terms of the warrant might fall within the category of privileged documents, and in the absence of any greater particularity to define or limit the scope of the search, the claim for privilege in relation to the appointment book and correspondence was upheld.

25. At the end of the Judgment, at pp 13-14, the Chief Justice said this:

“For the assistance of those who may have cause to consider the issue of warrants for search of solicitors offices, I indicate the following matters for guidance:

1. It is not competent to issue a warrant for the search and seizure of documents covered by the privilege of confidentiality.

2. Any warrant issued should clearly identify the client and the material sought to be seized. Where, as in the present case, the client could not be identified by name, it was at least possible to identify the client by reference to the appointment card.

3. The person issuing a warrant should attach methods to the execution of the warrant that are suitable to safeguard to the maximum the right to confidentiality of a solicitor’s client. In particular, the solicitors should be given the opportunity to claim the privilege where he considers on reasonable grounds that it exists and if necessary to test his claim for privilege before an appropriate Court.”

26. In Calver v District Court at Palmerston North (No 1) (2004) 21 CRNZ 371, Miller J, at p 384, para 48, held that a warrant to search a solicitor’s premises must be subject to conditions designed to protect privilege in confidentiality in material that may be viewed or seized during the search.

27. At p 385, para 51, the judge considered what conditions were necessary to ensure that the search was not unreasonable. General observations were offered by way of guidance. These include the opportunity to identify privileged material, and to deal with claims to privilege by allowing police to take privileged material on terms that it is sealed and referred to a Judge to resolve claims to privilege. As it could not be assumed that the solicitors being searched would authorise such a process, the judge thought it may also be appropriate to require that the search be conducted by or under the supervision of the police lawyer, who was an officer of the court and competent to assess privilege, with provision for ceiling and review by the court where privilege was still in dispute.

28. Thus, while requiring the warrant to be subject to conditions, the precise scope of the conditions was left open. It is clear however that the conditions envisaged closely mirror the practice that has developed in Hong Kong.

29. Calver was cited to the New Zealand Court of Appeal in A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586, a case dealing with a warrant obtained by the Serious Fraud Office (SFO), but was not directly relied upon by the court in reaching its decision.

30. However, the court had this to say in respect of future searches where privilege was an issue:

“[135] We indicated to counsel in the course of the argument that the SFO may need to take a different approach to applications for search warrants in cases like this. The following comments may assist.

[136] It is essential that searches involving law firms, where privileged information will be held, must involve a very clear focus on the preservation of legal professional privilege. The SFO should involve appropriate legal advisers in the preparation of the application for a warrant: it may be that senior counsel should be engaged. The application needs to be carefully drafted, as does the affidavit in support, to ensure that the issuing Judge has before him or her a very clear picture of the alleged criminal offending, the state of the investigation and the nature of the evidence which the SFO believes may be obtained in the conduct of the search of the relevant law offices. The issuing Judge must be clearly informed that there is likely to be privileged material (and much irrelevant material) at the premises being searched (especially on computer systems likely to be at the premises) so he or she can address his or her mind to the need for conditions to preserve privilege where no waiver of privilege has been given.

[137] The application should be accompanied by a memorandum of counsel, setting out the legal issues which require decision by the issuing Judge, and outlining the arguments on both sides. Where it is proposed that there will be cloning of a computer hard drive, or removal of a computer hard drive with subsequent cloning, there should be an affidavit from an appropriately qualified computer expert explaining why that is necessary (referring to the factors noted at para [106] above) what process involves on the safeguards which will be followed.

[138] There will be a need for extensive conditions to ensure the protection of privileged material, and the provision of an opportunity to the firm to refuse to disclose privilege material as permitted under s 24(1), with the invoking of the s 24(5)^[2] procedure in case of disputes. As mentioned below, it may well be that the most appropriate course would be to provide for an independent lawyer to be present at the search for the purpose of reporting back to the issuing Judge on the conduct of the search, and to ensure that the safeguards set out in the conditions of the warrant are followed.”

[139] The onus is on the SFO to place before the issuing Judge appropriately balanced material on all of these issues, and to ensure that the issuing Judge is given a proper basis to make an informed decision. Except in cases of utmost urgency, the application should not be made on the basis that an immediate answer is demanded: the issuing Judge should be given (and insist upon) adequate time to read all the papers carefully and to question the counsel involved about the legal issues.”

31. The Court went on to record that the jurisprudence that has developed in relation to Anton Piller orders in the civil jurisdiction of the High Court could provide useful guidance in the development of appropriate procedures in search warrants involving legal professional privilege.

32. Although the invalidity of the warrant turned on the lack of specificity of its terms, and not the absence of conditions, it is clear from the judgment that the law in New Zealand now requires that where the SFO seeks to obtain search warrant that might involve an intrusion into material subject to legal professional privilege, appropriate conditions must be attached to protect that privilege.

33. It seems clear to me that the requirement for the conditions arises from the specific provisions of s 24 of the SFO Act: see para 138, cited above, that is legislative provisions requiring the protection of LPP. It is not suggested by the court that the requirement for the conditions arises independently from the mere fact that a search warrant is to be obtained in circumstances where LPP issues arise.

34. Of course, it will certainly be arguable from the decision that in New Zealand, in respect of other search warrants obtained by other enforcement authorities, even though there may be no equivalent of s 24 SFO, in that enforcement authorities’ empowering legislation, that the omission of such conditions in appropriate circumstances will invalidate the warrant. But the decision is not authority for that proposition in relation to other enforcement authorities.

(b) Canada:

35. A consideration of the Canadian authorities begins with Descoteaux v Mierzwinski & AG of Quebec (1982) 141 DLR (3d) 590, a decision of the Supreme Court of Canada. There, police officers had obtained a search warrant to search the premises of the Legal Aid Bureau in Montréal in order to obtain an application for legal aid by one L. It was alleged in the search warrant that L had reported a low income in order to be eligible for legal aid contrary to s 324 of the Criminal Code. When the warrant was executed an officer of the Quebec Bar Association intervened, and as a result the police officers did not search the premises, but received the documents they were told they were looking for in a sealed envelope.

36. The judgment of the court, delivered by Lamer J, reviewed the law as to legal professional privilege and the relationship of that right to confidentiality with the provisions of the Canadian Criminal Code giving authority to a Justice of the Peace to issue search warrants. The Court holds that where the material is sought is undoubtedly subject to LPP, then there is no jurisdiction to issue the warrant: see pp 612-614.

37. The judgment then considers the circumstances where the justice of the peace has the necessary jurisdiction to authorise the search where issues may arise as to documents subject which may be subject to legal professional privilege. Such circumstances arise because a lawyer’s file may contain a host of information concerning a client, some of which remains confidential even though the information is no longer privileged. The following passage appears at p 615:

“Be that as it may, there are places to which authorization to search should generally be granted only with reticence and, where necessary, with more conditions attached than for other places. One was not enter a church in the same way as a lion’s den, or warehouse in the same way as a lawyer’s office. One does not search the premises of a third-party was not alleged to have participated in the commission of a crime and same way as those of someone who was the subject of such an allegation: see on the subject J A Fontana The Law of Search Warrants in Canada, p 174.

The Justice of the Peace, in my view, has the authority, where circumstances warrant, to set out execution procedures in the search warrant;….”

38. Mr McCoy pointed out that in this passage the court used the expression “should”, not “must”, and court was merely setting a standard of best practice and not imposing a condition upon which would determine the validity of the warrant. With respect to Mr McCoy, that submission is made on an incomplete reading of the decision. Lamer J goes on, at p 616, to review the decision in Re Pacific Press Ltd and The Queen et al (1977) 37 CCC (2d) 487, where Nemetz CJ, of the British Colombia Supreme Court quashed a search warrant because there was no reasonable information available to the justice of the peace to show that two prior conditions had not been met; namely whether a reasonable alternative source of obtaining the information was or was not available, and if available, that reasonable steps had been taken to obtain the information from that alternative source. Lamer J then said:

“Moreover, even if the conditions are met, the justice of the peace must set out procedures for the execution of the warrant to reconcile protection of the interests this writer is seeking to promote with the protection of those the search power is seeking to promote, and limit the breach of this fundamental right to what are strictly inevitable.” (Original emphasis).

39. It is clear that passage that it is mandatory in Canada that where a search warrant is likely to intrude upon LPP the absence of appropriate execution procedures (conditions) will render a warrant invalid.

40. The issue came before the Supreme Court of Canada again in Maranda v Leblanc & Ors [2003] 3 RCS 193. There, suspecting that C was involved in money laundering and drug trafficking, the RCMP obtained authorization to search the appellant’s law office for any documents relating to fees and disbursements billed to C or relating to the ownership of an automobile that C had allegedly transferred to his lawyer in payment for professional services.

41. At first instance, see [1998] R.J.Q. 481, the Crown had conceded that the search was invalid and void, but the hearing continued having regard to the importance of the issues raised in relation to the procedure for authorising and executing searches in a lawyers’ offices, and the scope of the protection afforded by legal professional privilege. The trial judge concluded that the judge authorising the search warrant must try to minimise any violations of privilege and confidentiality of the information covered by the warrant. The fact that there was no minimisation clause could make the search unreasonable.

42. Although the point was moot, the Crown having conceded invalidity, the Crown took the matter on appeal, and again because of the importance of the points involved the Court of Appeal heard the appeal: see [2001] R.J. Q. 2490. On almost every point the judge at first instance was reversed. It was held that the absence of the conditions suggested, which included that a lawyer should be present at the search, did not invalidate the warrant, and that such conditions went beyond what was required by the Criminal Code.

43. Because the Court of Appeal had virtually entirely reversed the judge at first instance, and despite the fact that the issue was moot, the matter was appealed to the Canadian Supreme Court. That court held that there was no doubt that a duty exists to minimise impairments of solicitor-client privilege when a search in a lawyer’s office is authorised and executed: see para 14. The court confirmed first that such a search should not be authorised unless there is no other reasonable solution. The court confirmed the principles laid down by Lamer J in Descoteaux v Mierzwinski, and confirmed that the authorisation to search must be given in terms that, to the extent possible, the impairment of solicitor-client privilege must be limited.

44. The appeal was allowed for the sole reason that the issuing judge should not have issued a search warrant without imposing conditions to ensure that the intrusion inherent in the search was minimised. It is accordingly clear that the law in Canada is that if a search warrant is likely to intrude into the area of LPP, the absence of appropriate conditions, called execution procedures in Canada, will render the warrant invalid.

45. In an earlier decision of Lavelle, Rackel & Heintz v Canada (AG) [2002] 3 RCS 209, the basis for the requirement for such conditions clearly emerges. The Canadian Criminal Code in s 488 makes specific provisions for the course of action to be taken where an officer acting under the authority of the Criminal Code or any other Act of Parliament is about to seize a document in the possession of a lawyer who claims that a named client of his has a solicitor-client privilege in respect of that document.

46. A specific procedure is set out. It is not an unfamiliar procedure. When a claim for legal professional privilege is made, prior to the examination or seizure of the document, the document is placed in a package, which is sealed and identified. There then follows a specific procedure for the resolution of the issue enabling a judge to determine the objection to the seizure of the document.

47. It seems clear to me that, just as in New Zealand in relation to warrants under the SFO Act, the need for conditions in Canada, the absence of which will render warrant invalid, arises from specific provisions in Canadian legislation requiring protection of LPP.

The Hong Kong cases:

48. An analysis of the cases in Hong Kong begins with that of Re Ip & Willis [1990] 1 HKLR 15, a decision in which Sears J. found a search warrant issued on the application of the Commissioner of ICAC to search the office of a firm of solicitors to be invalid. The learned judge followed the decision in Rosenberg v Jaine, in holding that the warrant must be sufficiently specific in regard to what is authorised to be searched for and seized so as to enable the occupier of the premises to understand and, if necessary, obtain legal advice about permissible limits of the search.

49. As the warrant was silent as to the offence in respect of which it was issued, did not refer to the documents or material which ICAC was authorised to search for and seized, and did not exclude documents in respect of which LPP existed, it was held to be so wide in general and its terms is to be invalid.

50. The judge held that the information sought by ICAC was not the subject of LPP, nor would the solicitors have been in breach of the duty of confidentiality in giving the information to ICAC. The search warrant having been held to be invalid because it was so wide and general, and the information not being the subject of LPP, the question of whether or not conditions to protect LPP in the course of the search did not arise.

51. In Shun Tak Holdings the search warrant had been issued pursuant to the general power of search given to the police under s 50(7) Police Force Ordinance Cap 232. Two applications for judicial review were brought, one by Shun Tak Holdings, the other by five directors and two senior managers of that company. When the search warrant was executed solicitors representing the individuals and the company attended at the company’s premises and made a claim that some of the documents were covered by LPP. By agreement the documents under challenge were sealed and detained by the Commercial Crime Bureau to enable the judicial review applications to be brought.

52. The report does not indicate whether the course of sealing the disputed documents was followed as a result of conditions attached to the warrant, but there is no suggestion that such conditions were attached. However, the procedure that had been followed was approved by Kaplan J. who described it as “sensible”. The proposition that the warrant was invalid because of the absence of conditions was not argued, but the judgment records that counsel for the applicants took the point, “faintly”, that the warrant was invalid because on its face it failed to exclude documents and records protected by LPP. The judge concluded that the warrant was not bad simply because it failed to exclude documents which may be covered by LPP.

53. The question of the validity of search warrants came before the Court of Appeal in Apple Daily Ltd v Commissioner of the ICAC [2000] 1 HKC 295, however the case involved claims for journalistic protection, and not LPP protection. The decision does not advance consideration of the issue.

54. The issue of LPP arose in Pang v Commissioner of Police & Anor [2002] 4 HKC 579, where the court was concerned with the extent of the obligation of barristers and solicitors to comply with the provisions of s 25A OSCO, requiring reporting to authorised officers of information about property that may be connected to an indictable offence. The court restated the law in relation to LPP confirming that it was recognised as constituting one of the pillars upon which the administration of justice rested in an open society. But again, the question of the imposition of conditions on search warrants to protect LPP did not arise.

Are the conditions proposed required in Hong Kong:

55. The search warrant at issue was issued by the magistrate, exercising power under s 10B Independent Commission Against Corruption Ordinance, Cap 204, (ICACO) which provides:

“Without prejudice to section 17(1) of the Prevention of Bribery Ordinance (Cap. 201) ^[3], if a magistrate is satisfied by information on oath that there is reason to believe that there is in any premises or place anything which contains evidence of the commission of any of the offences referred to in section 10, he may by warrant directed to any officer authorize such officer, and any other officers assisting him, to enter and search such premises or place.”

56. There is nothing specific in either the Prevention of Bribery Ordinance, Cap 201 (POBO), or the ICACO which requires the magistrate when issuing a warrant to search premises to have regard to issues of LPP. However, the right to LPP has been enshrined in Hong Kong’s fundamental constitutional documents, the Basic Law and the Bill of Rights Ordinance. The existence of these provisions parallel the provisions in the Canadian and New Zealand legislation, both of which ensure that LPP must be taken into account in the issue of search warrants. The absence of a similar provision in the legislation authorising the search warrant in this case does not lessen the importance of LPP, to the contrary the presence of provisions in the law of Hong Kong protecting LPP in Hong Kong’s fundamental constitutional documents, if anything, enhances its importance.

57. Crime and criminals are becoming ever more sophisticated and society demands, often vigorously and openly, that investigators take all possible steps to prevent and to investigate crime. That situation, it seems to me, is likely to encourage investigators to seek to extend the envelope of lawful investigative behaviour. To an extent, that may be seen in the course adopted by the investigators in Secretary for Justice v Shum Chiu [2008] 1 HKLRD 155, where a course of investigation involving the surreptitious recording of a meeting of a suspect with a solicitor took place, that recording being prima facie a deliberate invasion of privileged solicitor-client communication.

58. There is in my view a real risk today that investigators may, in their laudable desire to investigate crime and apprehend criminals, deliberately or inadvertently step over the line of lawful behaviour in pursuit of the investigation. The courts in overseeing the actions of investigators, in the public interest, are required to balance the competing interests of the right of society to have crime properly investigated, and the rights of all citizens, including the fundamental importance and nature of the right to LPP.

59. It is right that a practice has developed whereby enforcement authorities required to execute a search warrant as a solicitor’s office will do so during normal office hours and, upon a claim for LPP being made, will seal and protect the relevant documents, pending resolution of the claim. But, having regard to the fact that no search warrant can ever authorise the seizure of documents to which LPP attaches, and the importance of LPP, and balancing the right of society to have crime properly investigated, with the need to provide investigators with proper tools of investigation, I have come to the conclusion that time has now arrived to elevate that practice to the requirement of formal conditions, creating a mechanism by which the right to LPP enshrined in the Basic Law and the Bill of Rights Ordinance may be properly protected, and at the same time investigators be able to properly use their lawful powers of search.

60. For these reasons, I am satisfied that in circumstances where a search warrant is issued for the search of a solicitor’s office, in the absence of appropriate conditions to protect LPP, the warrant will be unlawfully issued.

61. In reaching this conclusion I have carefully borne in mind that the Court of Appeal did not find the absence of such conditions to invalidate the warrant in Rmbsa. It needs to be remembered in that respect that that case was not dealing with a solicitor's office, but with the office of a corporate services provider where there was no real likelihood that LLP documents would be held. The question was specifically left open: see para 46.

What conditions are appropriate:

62. The requirement that there be conditions on a search warrant which might impinge on LPP for that warrant to be lawful is, ideally, a matter for the legislature. However, it in the absence of there being any legislative scheme governing the issue of search warrants were LPP is at risk, I am satisfied that it is appropriate that the Court should outline the nature of the appropriate conditions to be applied in future.

63. The New Zealand courts have indicated the “best course”, and the Canadian courts have prescribed conditions, in order to protect the rights to LPP enshrined in the relevant legislation in those countries. The appropriate course to follow may vary depending upon the legislation under which the search warrant is to be issued. But it seems to me that the following matters must be taken into account, (I offer no apology for following closely in this respect the decision of the New Zealand Court of Appeal in A Firm of Solicitors):

(1) It is essential that the judicial officer who is asked to issue the search warrant should be fully and clearly informed of the fact that a solicitor’s office is to be searched. This information should be contained in an affidavit, in addition to the affidavit in support of the search warrant, as a separate affidavit containing this information need not be subject to a claim for public interest immunity.

(2) The application for a search warrant should be accompanied by a memorandum of counsel setting up a legal issues which require decision by the issuing judicial officer, and outlining the arguments on both sides.

(3) The warrant must clearly identify the client whose documents are sought and the nature of the documents sought. If the client cannot be identified by name, then there should be sufficiently precise information to enable the solicitors to identify the client, even if the name is not known to the investigators.

(4) The person issuing the warrant should attach methods to the execution of the warrant that a suitable to safeguard to the maximum the right of the solicitor’s client to LPP.
(5) As a minimum those methods will include the following:
(i) the search must be undertaken in the presence of a principal of the firm of solicitors whose office is to be searched;
(ii) except in special circumstances, to be appropriately established by affidavit, a search must be conducted during office hours, or on hours specified by prior notice to the solicitors;
(iii) in an extreme situation where a principal of the firm of solicitors cannot be found, for example if a search is required to be undertaken after hours and/or when a principal of the firm cannot be located, an appropriately experienced and independent solicitor or barrister should be present to make a claim for LPP on behalf of the client;
(iv)    upon a claim for LPP being made the relevant documents are not shown to the investigators, but immediately placed in an appropriately opaque container and sealed pending resolution of the claim;
(v) a schedule describing the general nature of the documents to which claim for LPP is made must be supplied to the investigators;
(vi)    pending resolution of the claim for LPP the seized sealed documents shall remain, sealed, in the custody of the investigators;
(vii)    no later than seven days following the seizure the claimant for LPP, either personally or by solicitors or counsel, shall appear before the judicial officer issuing the warrant in order that the claim for LPP may be determined;
(viii)   at that hearing solicitors or counsel for the investigators may appear and be heard, but except as otherwise ordered by the judicial officer neither the solicitors nor counsel for the investigators, nor investigators themselves, at such a hearing shall have any right to inspect the documents prior to the determination of the claim for LPP;
(6) Where information from a computer is sought, either by direct copying, the cloning of a computer hard drive, or the removal of computer hard drive with subsequent cloning, there should be an affidavit from an appropriately qualified computer expert explaining why that it is necessary, and the process, involving appropriate safeguards, to be followed.

(7) The investigators seeking the warrant should have prepared in advance an appropriate schedule of the conditions to be attached to the warrant for the consideration of the judicial officer.

64. I emphasise that I consider these provisions to be guidelines to give effect to the “best practice” that has been adopted now for some time. It may be that the specific circumstances in a particular case will require further conditions. In the event that a judicial officer being requested to issue a search warrant is not informed that the premises to be searched raise issues of LPP, or that there is a failure to attach appropriate conditions to the search warrant, any warrant issued will be unlawfully issued.

65. There may be circumstances in which criminal behaviour on the part of solicitors themselves is suspected. In such a case LPP will not give any protection in relation to documents created by the solicitors in the course of that criminal behaviour. The documents will be subject to seizure and will not be entitled to protection. But in such circumstances it is entirely possible that LPP material may be revealed to the investigators. In circumstances where a solicitors themselves are suspected, the application for the warrant needs to make the circumstances precisely clear, and will have to identify procedures to be put into effect to give protection to legitimate claims for LPP.

66. There is no reason to draw any distinction between the ICAC and other law enforcement authorities in relation to conditions to be imposed on the warrant that might infringe LPP. It follows that what I have had to say is equally applicable to police officers as it is to ICAC, and any other investigating authority.

The remedies sought:

67. The remedies sought by the Solicitors are as follows:

(1) Certiorari to bring up and quash the decision of the magistrate made on 22 May 2007, to issue the warrant to enter and search the offices of the Solicitors;

(2) Certiorari to bring up and quash the decision of the Commissioner of ICAC made on 23 May 2007, to seize and detain documents materials from the offices of the Solicitors;

(3) A declaration that the warrant issued on 22 May 2007, to enter and search the offices of the Solicitors and the seizure of documents materials by the Commissioner of the ICAC on 23 May 2007 were unlawful;

(4) A mandatory injunction requiring the Commissioner of the ICAC to return to the Solicitors all the documents and materials seized from the offices of the Solicitors on or about 23 May 2007;

(5) An injunction under O 53 r 3(10)(b) requiring the Commissioner not to unseal the documents seized and carried away by his officers on 23 May 2007;

(6) Damages for trespass and trespass to goods under O 53 r 3(3).

The entitlement to remedies in judicial review:

68. Mr Dykes contended that in any situation where the court found that administrative action was unlawful the court should not refuse relief. It would be quite wrong, he said, to find that the decision to issue the search warrant by the magistrate was unlawful, but at the same time not quash the warrant. While superficially attractive as a submission, I am satisfied that it is not correct.

69. The starting point in respect of final remedial orders in judicial review is that all remedies are discretionary; see de Smith’s Judicial Review, para 18-023:

“A distinctive feature of all these remedies is that the court has a discretion to withhold them from a claimant even if the defendant public authority is held to have acted unlawfully.”

And also Fordham, Judicial Review Handbook 4^th Ed, para 24.3:

“It is a first principle of judicial review that all remedies are discretionary. This means that a claimant could win on every other point and still find that the Court refuses a remedy, in the exercise of its discretion.”

70. That said, de Smith acknowledges that there is a presumption in favour of relief; see para 18-048:

“The general approach ought to be that a claimant who succeed in establishing the lawfulness and administrative action is entitled to be granted a remedial law. The court does, however, have a discretion - in the sense of assessing “what is fair and just to do in the particular case” - to withhold a remedy altogether or to grant a declaration (rather than a more coercive quashing, prohibiting all mandatory order or injunction which may have been sought by the claimant) or to grant relief in respect of one aspect of the impugned decision, but not others. But the requirements of the rule of law mean that “the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow”.”

71. I have regard also to the following statements. In R v Take-over Panel, ex p Datafin Plc [1987] 1 QB 815 at 840B, Sir John Donaldson MR said:

“Furthermore, the court had the ultimate discretion whether to set (decisions by the Take-over Panel) aside and may refuse to do so in the public interest, notwithstanding that it holds and declares the decision to have been made ultra vires….”

In Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, HL, at 1231F, Lord Mustill said:

“It is however one thing to hold that it is for the magistrates to rule on admissibility, if invited to do so, so that a decision on the issue must in principle be reviewable, and quite another to say that the grant of relief should follow as a matter of course.”

72. I am quite satisfied that even if the search warrant were found to have been unlawfully issued it is still open to me to refuse relief to the Solicitors.

73. There are a number of bases upon which a remedy may, in the exercise of discretion, be refused. A specific basis to refuse a remedy is where there has been undue delay by the claimant, and that the grant of the remedy would cause substantial prejudice, hardship or detriment to good administration. That situation does not arise in this case. Other grounds include a lack of standing, or the extent of the sufficient interest of the claimant; that the remedy would serve no practical purpose; that the claimant has suffered no harm; and the financial implications of a remedy: see de Smith para 18-054-18-058.

74. The extent of the relief that granted will depend upon the circumstances of the particular case. It will, in my view, be perfectly proper for the court, in circumstances where it is established that a claimant has suffered no harm at all and that a remedy would serve no practical purpose, to refuse relief other than a declaration that the administrative action in question was unlawful, leaving it to the authority to decide how to respond to such a declaration in the future, as was done in Great North Eastern Railway Ltd v Office of Rail Regulation [2006] EWHC 1942 at para 97, per Sullivan J.

Discussion on remedy:

75. In the present case, had the conditions that I have found ought to be imposed on a warrant to search a solicitor’s office, been imposed, there would have been conditions attached to the warrant to ensure that the investigators executed the warrant during ordinary working hours, to have present during the execution of the warrant a solicitor who was able to make a claim for LLP, and a procedure should have been specified to deal with disputed claims of LLP.

76. In determining whether or not I should grant any relief I must have regard to the fact that in reality, notwithstanding the complete absence of any conditions, everything that should have been done was done. In simple terms, there has been no injustice to the clients of the Solicitors, who are the subject of the search warrant. There has been no breach of LPP.

77. The warrant was executed at 10.03 a.m. on Wednesday 23 May 2007, during proper working hours in a normal working day during the working week. The investigators spoke initially to a receptionist, who brought to them, in a conference room, a director of Nominees, who was an employee, but not a partner of the Solicitors. At that person’s request the investigators waited in the conference room until a partner of the Solicitors was brought to the conference room. The investigators identified themselves by their warrant cards and explained the purpose of their visit. The investigators requested the assistance of the Solicitors to retrieve material relating to the company and the individual who are the subject of the warrant. The partner of the Solicitors agreed to this and brought the relevant material to the investigators, in the conference room, without the need for the investigators to physically conduct a search.

78. At 10.25 a.m. another partner of the Solicitors came to the investigators in the conference room and expressed concerns in respect of LPP. The investigators say that they agreed that anything seized from the Solicitors under the search warrant would be placed in a sealed container and the seal would not be broken before the expiry of seven days from the date of seizure within which the Solicitors may institute legal proceedings to establish their claims of LPP. This claim is disputed by the Solicitors, but in any event everything seized from the Solicitors was not inspected by the investigators, but was immediately sealed, and has remained sealed, pending the resolution of these proceedings.

79. In fact, everything that might have been achieved by the imposition of the conditions sought by Mr Dykes has been achieved. The protection of LPP to which the company and the individual, the subject of the search warrant, are prima facie entitled has not been infringed. The appropriate method to examine whether or not the claim of LPP is justified may still be undertaken, and no harm at all has been suffered by either the company or the individual.

80. It is necessary in the exercise of my discretion that I should undertake a balancing exercise between the need of society on the one hand to successfully prosecute corrupt behaviour, and the rights of the individual on the other hand.

81. No challenge is made by the Solicitors to the evidence of the investigators that the individual, the subject of the warrant has arguably been engaged in corruption on a gigantic scale. No challenge is made by the Solicitors to the evidence of the investigators that the company, the subject of the warrant, has arguably been used by the individual to deal with the proceeds of that corruption. It is plainly in the public interest that, if possible, that that corruption and its proceeds should properly be pursued.

82. As I have indicated, neither the company nor the individual has so far suffered any breach of their rights to LPP. The protection to which they are entitled has been ensured by the course of action adopted by the investigators, albeit without the formal imposition of conditions on the search warrant.

83. It is right that, if the warrant has been unlawfully issued, then there has been a technical trespass of the Solicitors’ office, because the Solicitor’s agreement to supply to the investigators the documents sought was obtained only as a result of the unlawfully issued search warrant.

84. But that trespass must be seen in the light of the way in which the investigators conducted themselves, that is by first going to the receptionist and making enquiry for a person in authority, then waiting in a conference room as requested until that person arrived, and finally by agreeing with the Solicitors not to conduct a physical search, but to permit the Solicitors to bring to them the relevant documents. This is not a case where the investigators rode roughshod over protest in order to seize the documents they sought.

85. The extent to which that technical trespass has been ameliorated by the conduct of the investigators is demonstrated by Mr Dykes’ concession that, in the whole of the circumstances, nominal damages of only $100 would be appropriate in respect of any trespass.

86. I am satisfied that this is a very plain case where first, the applicant for judicial review, that is the Solicitors, have suffered no harm beyond a technical trespass; second, that the rights of the subjects of the warrant have not been compromised; third, that the public interest in properly investigating corruption outweighs the interests of both the Solicitors and the subjects of the warrants. In the circumstances of this case it would be out of all proportion to quash the warrant, with the consequences that might flow from such a decision involving the return and potential risk of destruction (by the clients) of the documents.

87. For these reasons I have come firmly to the view that this is not a case in which certiorari quashing in the decision of the magistrate to issue the warrant should be granted. Neither is it necessary in circumstances for there to be a certiorari to quash the decision of the Commission of the ICAC to seize and detain documents and materials from the officers of the Solicitors. It follows that the injunction requiring Commission of the ICAC to return the documents and materials should also not issue.

88. In the whole of the circumstances a declaration that the warrant was unlawfully issued is in my view the only appropriate relief. Such a declaration adequately acknowledges the circumstances in which the warrant was issued, and provides the formal basis for an award of damages for trespass. There will be a declaration accordingly, and an award to the Solicitors of $100 nominal damages.

Determination of the LPP issue:

89. Mr Dykes suggested that the appropriate procedure to determine whether or not LPP applied to any of the seized documents would be an ex parte proceeding in which I should inspect the documents and hear argument form him as to why LPP applied and determine the status of the documents. Like Kaplan J. in Shun Tak Holdings, I am not at all happy at the concept of an ex parte proceeding even for a purpose such as this, however I note that in that case counsel for the Crown did not object to the procedure, on the basis that the judge might require assistance from counsel for the claimant in determining the validity of any claim.

90. I would prefer to conduct an inter partes hearing, in the course of which the documents would not be shown to the Respondent, but the general nature described openly to the Court, thereby indicating to the Respondent the general nature of the document but not its content, with the Court then ruling on the claim, having inspected the document of necessary. In the unlikely event that the Respondent is unable to make appropriate argument on a document without inspecting it I would be prepared to consider a confidential inspection by counsel for the Respondent. I do not rule now on the procedure merely indicate a potential course of action for consideration by the parties.

91. Pending the resolution of the claim for LPP the documents must remain sealed. I am confident I can leave it to the good sense of counsel for both parties to make an appropriate arrangement for counsel for the company and individual, the subject of the warrant, (whose privilege it is to be claimed), to inspect the documents and to take appropriate instructions. The issue is to be set down for argument before me on the first available date, convenient to counsel.

Costs:

92. Nominees has failed in its application for judicial review. In the normal run of events an order for costs would be made against Nominees. The Solicitors have succeeded in obtaining a declaration the warrant was unlawfully issued, and an order for nominal damages, but the substantial relief sought has been refused.

93. In these circumstances it seems to me that the appropriate order should be an order nisi that there be no order as to costs, each party thereby meeting their own costs.

(John Saunders)
Judge of the Court of First Instance
High Court

Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Messrs Philip KH Wong, Kennedy YH Wong & Co, for the Applicants

Mr Gerard JX McCoy, SC and Mr Alex Lee, Senior Assistant Director of Public Prosecutions, instructed by the Department of Justice, for the Respondent

[1] S 15(1) POBO provides: “Save as is provided in this section, nothing in this Ordinance shall require the disclosure by a legal adviser of any privileged information, communication, book, document or other article."

[2] The following provisions of s 24 of the SFO Act (NZ), which makes special provision in relation to legal professional privilege, are relevant:

S 24 (1) Except as provided in subsection (2) of this section, nothing in this Act shall require any legal practitioner to disclose any privileged communication.
(5) Where any person refuses to disclose any information will document on the ground that it is a privileged communication under this section, the Director of that person may apply to a District Court Judge for an order determining whether or not the claim of privilege is valid; and for the purposes of determining any such application, the District Court Judge may require the information to be produced to him or her.

[3] This section gives further powers of search to investigating officers, investigating offences suspected to have been committed under the Prevention of Bribery Ordinance.

HCAL 70/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 70 OF 2007

____________

	IN THE MATTER of an Application by Messers Philip KH Wong, Kennedy YH Wong & Co and Philip (Nominees) Limited for Judicial Review
	and
	IN THE MATTER of two Warrants to Enter and Search Numbered 5712/2007 and 5713/2007 and Issued by a Magistrate on 22^nd May 2007 under s10B of the Independent Commission Against Corruption Ordinance, Cap 204

____________

BETWEEN

	PHILIP K H WONG & KENNEDY Y H WONG	1^st Applicant
	(a firm of solicitors)
	PHILIP (NOMINEES) LIMITED	2^nd Applicant
	and
	THE COMMISSIONER OF THE INDEPENDANT COMMISSION AGAINST CORRUPTION	Respondent

____________

Before: Hon Saunders J in Chambers

Dates of Hearing: 3-4 December 2007

Date of Judgment: 14 December 2007

_______________

J U D G M E N T

_______________

Introduction:

1. This application for Judicial Review relates to the issue by a magistrate of two search warrants to search premises.

2. The warrants were issued on 22 May 2007, the first in respect of the offices of the First Applicant, (the solicitors), the second in respect of the offices of the Second Applicant, (the secretarial company). Both Applicants share the same premises, the secretarial company is owned and operated by the solicitors.

3. The search warrants were issued on the application of the Respondent, (ICAC), on their face, pursuant to powers to search contained in s 10B Independent Commission Against Corruption Ordinance, Cap 204, (ICACO).

4. The search warrants relate to a company called Roselle Court Ltd, (Roselle Court) and a person from Macau, Mr AO Man-long, (Mr AO). The warrants both seek:

“…bank records, company registration records, letter of delegation, Power of Attorney, accounting records, payment records, files, quotations, computer records, documents or any other thing or items relating to Roselle Court Ltd and AO Man-long which all contain evidence in respect of offences of accepting an advantage, and dealing with property known or believed to represent proceeds of an indictable offence referred to in Section 10 of the Ordinance.”

The reference to “Section 10 of the Ordinance” is a reference to s 10 Prevention of Bribery Ordinance (POBO), which is set out in para 20 below.

The issues:

5. The challenge to the warrants raises two primary issues.

6. The first is whether, in the course of the investigation of the offence of dealing with property known or believed to represent the proceeds of an indictable offence, under s 25 Organized and Serious Crimes Ordinance Cap 455, (OSCO), ICAC is required to obtain a search warrant under OSCO, and may not rely upon the provisions of s 10B ICACO.

7. The second is whether the failure of the warrant to refer to appropriate steps to be followed in the event of a claim for Legal Professional Privilege, (LDP), invalidates the warrant.

The facts:

8. The factual circumstances surrounding the events are not in dispute.

9. Mr AO is a former Principal Official and Secretary for Transport and Public Works of the Macau Special Administrative Region Government. Mr AO is presently on trial in Macau in respect of certain corruption offences. Mr AO joined the Macau SARG in 1987, and was appointed to his former Principal’s position in December 1999.

10. An investigation undertaken by ICAC in Hong Kong reveals a good prima facie case that Mr AO has, throughout a number of years, accepted bribes of substantial amounts in relation to public works in Macau. It is alleged that these bribes have been accepted in Hong Kong, from at least 4 contractors by using some 39 bank accounts opened in Hong Kong. The contractors are alleged to have effected the relevant bank transfers of corrupt money in Hong Kong. The investigation has revealed that these 39 bank accounts are held by overseas companies owned either by Mr AO personally, or by his wife, his sister-in-law, or associates, on trust for him by way of Declarations of Trust or Power of Attorney.

11. The investigation has also revealed that part of the suspected corrupt moneys received in Hong Kong have been remitted to a particular bank account in the United Kingdom held by Mr AO’s brother and sister-in-law. The various companies that have been used have no other apparent business. There is good reason to believe that these companies are mere conduits for Mr AO to collect, and to deal with very substantial bribes.

12. In the course of an arrest and search operation in Hong Kong in early December 2006, a will was found and seized belonging to Mr AO’s father. The will names Mr AO as the beneficiary. The will was prepared by the solicitors.

13. In late December 2006 and February 2007, two restraining orders were obtained by ICAC pursuant to s 14C(1)(a) OSCO, as a result of which some HK$352 million is restrained. In addition ICAC have seized about HK$80 million cash from two safe deposits controlled by Mr AO.

14. Subsequent enquiries revealed that Mr AO had maintained written records of the amount of the corrupt proceeds he had collected over the years. This led the investigators to Roselle Court. Roselle Court is registered in the British Virgin Islands, and the secretarial company is its director.

15. In the light of the foregoing facts, ICAC suspected that the solicitors and the secretarial company may have been used as innocent agents by Mr AO in an attempt to disguise his corrupt conduct and to facilitate the laundering of corrupt money through Roselle Court.

16. ICAC plainly has strong grounds to suspect these circumstances.

17. On the basis of the foregoing information, ICAC investigators appeared before the magistrate and sought the warrants at issue.

The investigative powers of ICAC:

18. As its name implies, the ICAC is quite independent of, and distinct from, the Hong Kong Police Force. It is established under s 3 ICACO, and draws its investigative powers from that Ordinance.

19. The general power of ICAC to investigate offences arises from its powers of arrest pursuant to s 10 ICACO. It naturally follows that ICAC may investigate any offence in which they have a power of arrest. Primarily these will be corruption offences. The legislature has limited the power of the ICAC to investigate other offences than corruption offences.

20. The power of arrest of an ICAC officer is contained in s 10 ICACO. The section has the effect of empowering ICAC officers to investigate corruption offences, and to delineate the circumstances in which ICAC officers may investigate offences other than corruption offences. It is accordingly appropriate to set out that section in full.

“s.10 (1) An officer authorized in that behalf by the Commissioner may without warrant arrest a person if he reasonably suspects that such person is guilty of an offence under this Ordinance or the Prevention of Bribery Ordinance (Cap 201) or the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) or, being a prescribed officer, is guilty of an offence of blackmail committed by or through the misuse of office.

(2)   Where, during an investigation by the Commission of a suspected offence under the Prevention of Bribery Ordinance (Cap 201) or of a suspected offence under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554), another offence is disclosed, any such officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence and-
(a)     he reasonably suspects that such other offence was connected with, or that either directly or indirectly its commission was facilitated by, the suspected offence under the Prevention of Bribery Ordinance (Cap 201) or the suspected offence under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554), as the case may be; or
(b)     the other offence is one which is specified for the purposes of this subsection in subsection (5).
(3)   Any such officer-
(a)     may use such force as is reasonable in the circumstances in effecting an arrest under subsection (1) or (2); and (Amended 18 of 1976 s. 2)
(b)     may, for the purpose of effecting such an arrest, enter and search any premises or place if he has reason to believe that there is in the premises or place a person who is to be so arrested.
(4)   No premises or place shall be entered under subsection (3) unless the officer has first stated that he is an officer and the purpose for which he seeks entry and produced his warrant card to any person requesting its production, but subject as aforesaid any such officer may enter any such premises or place by force, if necessary.

(5)   The following offences are specified for the purposes of subsection (2)-
(a)     the offence of perverting or obstructing the course of justice;
(aa)   the offence of theft under section 9 of the Theft Ordinance (Cap 210);
(b)     the offence of blackmail under section 23 of the Theft Ordinance (Cap 210);
(ba)   the offence of fraud under section 16A of the Theft Ordinance (Cap 210);
(c)     the offence of obtaining property by deception under section 17 of the Theft Ordinance (Cap 210);
(d)     the offence of obtaining pecuniary advantage by deception under section 18 of the Theft Ordinance (Cap 210);
(da)   the offence of obtaining services by deception under section 18A of the Theft Ordinance (Cap 210);
(db)   the offence of evading liability by deception under section 18B of the Theft Ordinance (Cap 210);
(dc)   the offence of making off without payment under section 18C of the Theft Ordinance (Cap 210);
(dd)   the offence of procuring a false entry in certain records under section 18D of the Theft Ordinance (Cap 210);
(de) the offence of false accounting under section 19 of the Theft Ordinance (Cap 210);
(e)     the offence of assisting an offender under section 90 of the Criminal Procedure Ordinance (Cap 221);
(ea)   any offence under regulations in force under the Electoral Affairs Commission Ordinance (Cap 541);
(f)      the offence of conspiracy to defraud and the offence of conspiracy to commit any of the offences referred to in paragraph (a), (aa), (b), (ba), (c), (d), (da), (db), (dc), (dd), (de), (e) or (ea);
(g)     an attempt to commit any offence referred to in paragraph (a), (aa), (b), (ba), (c), (d), (da), (db), (dc), (dd), (de), (e) or (ea) or the offence of aiding, abetting, counselling or procuring any offence so referred to.”

21. The link to “other offences” in s 10(2) (a) and (b), is in the alternative.

22. The effect of s 10(2)(a) is that ICAC may investigate any other offence, whether specified in the ICACO or not, if that other offence is connected with, or which either directly or indirectly facilitated the commission of, the suspected POBO or E(CIC)O offence, or blackmail through the misuse of office offence.

23. The important consequence of s 10(2)(b), is that if it transpires that although suspected, there is no POBO or E(CIC)O offence, or blackmail through the misuse of office offence, but one of the offences specified in s 10(5) is revealed, then ICAC may continue to investigate the matter.

24. The corollary is that if an investigation reveals that there is no POBO or E(CIC)O offence, or blackmail through the misuse of office offence, but the investigation reveals an offence that is not specified in s 10(5), then the matter may not be further investigated by ICAC.

25. In those circumstances the proper course, ICAC having no legal jurisdiction in the matter, would be that the investigation must be handed to the appropriate Department of the Hong Kong SAR Government for investigation. Usually this will be the Hong Kong Police Force, but in appropriate circumstances may also be the Customs and Excise Department, or the Immigration Department, or such other Department as may hold appropriate prosecuting authority in relation to the particular offence.

26. The expressions used in s 10(2)(a), “connected with”, or “either directly or indirectly its commission was facilitated by” are in the widest possible terms. There can be no doubt at all that the offence of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to s 25 OSCO, is an offence falling, in appropriate factual circumstances, within that provision.

27. Consequently, in appropriate circumstances, ICAC may investigate an offence contrary to s 25 OSCO.

28. There can be no doubt at all that in the present circumstances ICAC were perfectly entitled to investigate not only the corruption offences alleged against Mr AO, but also the s 25 OSCO offence arising from his dealings with the proceeds of his corruption.

The power to search:

29. A power to search is a necessary investigative tool. On the arrest of the suspected person, using powers contained in s 50(6) Police Force Ordinance Cap 232, (PFO), a police officer, without warrant, may search and take possession of virtually anything which may be found on the arrested person or in or about the place at which he has been apprehended, and which the officer may reasonably suspect is relevant. A lawful arrest is a necessary precondition of such a search. In addition to that power of search, police officers draw search powers, independent of an arrest, in numerous other provisions in legislation such as the Dangerous Drugs Ordinance, (Cap 134), and the Theft Ordinance, (Cap 210).

30. A separate power of search available to a police officer is contained in s 50(7) PFO. Under this power the magistrate may issue a warrant for the search of any place, and the taking possession of any newspaper book or document or any article or chattel found therein. This latter power is a purely investigative power.

31. None of these provisions entitle an ICAC officer to obtain a search warrant in the course of an investigation.

32. The power of an ICAC officer to obtain a search warrant is contained in s 10B ICACO. That section provides:

“Without prejudice to section 17(1) of the Prevention of Bribery Ordinance (Cap. 201), if a magistrate is satisfied by information on post-that there is reason to believe that there is in any premises or place anything which is all contains evidence of the commission of any of the offences referred to in section 10, he made by warrant directed to any officer authorise such officer, and any other officers assisting him, to enter and search such premises or place.”

Section 17(1) POBO, which relates to additional powers of search available to ICAC officers, is not relevant in the present case.

The power of seizure:

33. A warrant issued under s 50(7) Police Force Ordinance contains a power to take possession of items found. However a warrant issued by a magistrate to an ICAC officer under s 10B ICACO does not authorise seizure. Seizure of items found is separately dealt with in s 10C ICACO, under which an officer authorised in that behalf by the Commissioner may seize and detain anything which the officer has reason to believe to be or to contain evidence of any of the offences in s 10.

34. The effect of these provisions is to give power to ICAC officers, in the course of an investigation, to obtain a search warrant for the magistrate and subsequent to seize items found.

35. The powers of search and seizure in ICAC officers, described above, have existed since the establishment of ICAC in 1976.

The OSCO regime is established:

36. In 1994, under OSCO, a new regime was created establishing, according to the long title of the Ordinance:

“new powers of investigation into organised crime and certain other offences and to the proceeds of crime of certain offenders”.

The offence of dealing with property known or believed to represent the proceeds of indictable offences was created by s 25 of OSCO.

37. It is necessary to examine the regime under OSCO, in order to establish when the investigation of organised crime occurs, and the provisions of the Ordinance are engaged.

38. First, the Ordinance defines organised crime in s 2(1):

““organized crime” (有組織罪行) means a Schedule 1 offence that-

(a) is connected with the activities of a particular triad society;

(b) is related to the activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts, each of which is a Schedule 1 offence and involves substantial planning and organization; or

(c)     is committed by 2 or more persons, involves substantial planning and organization and involves-
(i)      loss of the life of any person, or a substantial risk of such a loss;
(ii)     serious bodily or psychological harm to any person, or a substantial risk of such harm; or
(iii)     serious loss of liberty of any person.”

Schedule 1 includes a wide range of offences, including the common law offences of murder, kidnapping, false imprisonment, and a conspiracy to convert the course of justice. It also includes offences under 15 specific ordinances, including the offence of dealing with property known or believed to represent proceeds of an indictable offence contrary to s 25(1) OSCO. Scheduled 2 sets out a further schedule of offences which are themselves not within the scope of the expression “organised crime”.

39. It will not be that every offence in Schedule 1 will always constitute an “organised crime”. It will only be when the particular circumstances of the offences contained in Schedule 1, fall within the scope of the definition set out in para 38 above that the offence will constitute an “organised crime”, and consequently the provisions of OSCO will be engaged.

40. On the other hand, clearly there will be many circumstances when an offence under s 25(1), being either committed by a person by himself, or being in straightforward and unsophisticated circumstances, will not be an “organised crime”, even though the offence is created by OSCO.

41. In the present case, where the steps taken by Mr AO to deal in the proceeds of an indictable offence, that is the corruption offences he is alleged to have committed, are steps which plainly involved two or more persons associated together, and there are plainly two or more acts, and the circumstances are such that they plainly involve substantial planning and organisation, the offence is within the definition of an “organised crime”.

42. It cannot be said that offences involving allegedly corrupt money being passed through 39 bank accounts in Hong Kong, bank accounts in the United Kingdom, through the use of BVI and other companies, and the use of declarations of trust and powers of attorney to conceal the true identity of those entitled to funds in the accounts, are not offences which involves substantial planning and organisation.

43. Mr McCoy was right to say to me that the offence of possession of a forged identity card, a commonplace offence in Hong Kong regularly prosecuted within the magistracy, was a schedule 1 offence. But he was, with respect, wrong to say that if the argument for the Applicants was correct, a search warrant required in respect of every “tinpot” forged identity card offence would require to be dealt with under OSCO. It will only be when the particular criteria contained in the definition of “organised crime” in s 2 OSCO are present that the OSCO regime may need to be engaged.

The investigative and search powers under OSCO:

44. An important part of the OSCO regime is the power of the Court of First Instance or the District Court to make confiscation orders in respect of the proceeds of crime. Confiscation orders may be made under s 8 OSCO, in respect of the proceeds of any of the crimes in Schedule 1, or Schedule 2 of OSCO. Plainly, in order to seek confiscation orders information must be obtained as to the proceeds of crime. This will usually involve tracing funds through banks and similar institutions, and in appropriate occasions solicitors or accountants offices, or the offices of semi-professionals offering managerial or quasi-accounting assistance to the public. I shall refer to this latter group collectively as “management offices”. Thus, the question of obtaining information from such offices, those offices, usually having been innocently used by offenders in processing the fruits of crime, needed to be dealt with in OSCO.

45. In the course of investigation into a crime it will usually be the premises occupied by, or used or frequented by, a suspected person that will be the primary place at which a search for evidence of that crime might be undertaken. In such circumstances it is entirely appropriate that both police officers and ICAC officers should be able to go to the magistrate’s court and obtain a search warrant without any prior notification to the suspected person or the occupier of premises. It is equally appropriate that such a search warrant should be able to be executed at any time of the day or night.

46. However, it will be immediately apparent that the evidence required for a confiscation order, or a s 25 OSCO offence, in circumstances when the latter falls within the definition of organised crime, will invariably involve documentation held by entities such as banks, solicitors, accountants, or management offices, for those entities may well have been involved, perfectly innocently, in dealing with money in particular, that may be the proceeds of an indictable offence. A banker or solicitor may have no reason to question the source of funds placed with them by a client, and may perfectly innocently act upon instructions in relation to those funds thereby unknowingly facilitating an offender in dealing with the proceeds of his offence. The documents created in the course of such steps will be highly relevant to the prosecution of the person alleged to have committed the offence.

47. It is clear from the structure of OSCO that the legislature was required to balance, on the one hand the plain need of society that the proceeds of indictable offences should be traced, recovered, and offenders prosecuted, and on the other hand, the proper obligations of bankers solicitors, accountants, or managers, of confidence or confidentiality, and that their places of work should not be unnecessarily or unreasonably entered on a compulsive basis.

48. A search warrant carries with it a power of forcible entry, and may be executed at any time. In passing OSCO however, the legislature has, in effect, acknowledged that:

“…..there are places for which authorisation to search should generally be granted only with reticence and, where necessary, with more conditions attach them for other places. One does not enter a church in the same way as a lion’s been, or a warehouse in the same way as a lawyer’s office. One does not search the premises of a third-party who was not alleged to have participated in the commission of a crime in the same way as those of someone who was the subject of such an allegation:”

per Lamar J in Descoteaux v Mierzwinski & Attorney General of Quebec (1982) 141 DLR (3d) 615-616.

49. The legislature has recognized this principle by making specific provisions in OSCO which have the effect of considerably ameliorating the usual draconian powers accompanying an ordinary search warrant. These specific provisions, are contained in Part II, OSCO, entitled “Powers of Investigation”.

50. By s 3 and s 4 OSCO, provision is made for two alternative steps, lesser than the draconian power of search warrant, as a first step which will almost always need to be undertaken before a search warrant may be obtained. They are first, by s 3, a requirement to furnish information or produce material, and second, by s 4, an order to make material available.

The s 3 procedure:

51. The “requirement to furnish information or produce material” under s 3 is a step that may only be taken by the Secretary for Justice. The Secretary for Justice may, for the purpose of an investigation into an organised crime, make an ex parte application to the Court of First Instance for an order authorising the Secretary for Justice to require the person in respect of whom the order was made to answer questions, furnish information, or produce material.

52. A pre-requisite to the making of such an order is that there must be reasonable grounds for believing that the making of the order is in the public interest having regard to four criteria. They are, (i) the seriousness of the organised crime under investigation, (ii) whether or not the organised crime could be effectively investigated if the order were not made, (iii) the benefit likely to accrue to the investigation if the information is disclosed or material obtained, and (iv) the circumstances under which the person may have acquired, or may hold the information or material, including any obligation of confidentiality in respect of the informational material and any family relationship they person to whom the information or material relates: see s 3(4)(d). Section 3(9) specifically exempts material subject of legal professional privilege from being the subject of a requirement.

53. The legislation requires that Rules of Court shall be made in respect of such applications. Order 116 RHC contains the rules in relation to applications under ss 3, 4 and 5 OSCO.

The s 4 procedure:

54. Section 4 provides for an “order to make material available”. An application under the section may be made either by the Secretary for Justice, or an authorised officer. An “authorised officer” is defined by s 2(1) as any police officer, any member of the Customs and Excise Service, or any other person authorised in writing by the Secretary for Justice for the purposes of OSCO. ICAC officers are not generally included, and must be specifically authorised in writing by the Secretary for Justice.

55. Again, ex parte application is made to the Court of First Instance for an order that a person who appears to the court to be in possession or control of material produced the material to an authorised officer to take away, or to give him access to it.

56. It is a prerequisite to the making of an order that there must be reasonable grounds for believing that making the order is in the public interest having regard to, (i) the benefit likely to accrue to the investigation if the material is obtained, and (ii) the circumstances under which the person in possession or control of the material holds or controls it: see s 4(4)(d). Again, an order cannot be made in relation to items subject to legal professional privilege.

The s 5 search warrant procedure:

57. Authority for a search warrant is contained in s 5. Under s 5(1)(c), an authorised officer may, for the purpose of an investigation into the proceeds of a specified offence of any person who has committed, or is suspected of having committed, that specified offence, apply to the Court of First Instance or the District Court for a warrant in relation to specified premises.

58. Again, there are prerequisites to the issue of a search warrant. First, by s 5(2) the court must be satisfied either, (a) that a requirement imposed under s 3 has not been complied with; or, (b) that an order under s 4 has not been complied with, or; (c) the conditions contained in s 5(3)(a), (c) and (d) or s 5(3)(b), (c) and (d) are fulfilled; or, (d) the conditions contained in s 5(4)(a), (c) and (d) or s 5(4)(b), (c) and (d) are fulfilled. It is important to note that the pre-requisites established by s 5(2) in the alternative. Accordingly an authorised officer seeking a search warrant must satisfy the court that at least one of those conditions has been fulfilled.

59. Where steps have not first been taken to obtain either a requirement to furnish information or produce material pursuant to s 3, or an order to make material available pursuant to a 4, one of the requirements in s 2(3)(c) or (d), that is the appropriate combination of conditions in s 5(3) and (4), must be fulfilled.

60. It is accordingly appropriate to set out in full s 5(3) and (4):

“(3) The conditions referred to in subsection (2)(c) are-

(a) where the investigation is into an organized crime, that there are reasonable grounds for suspecting that the organized crime has been committed;

(b)     where the investigation is into the proceeds of organized crime or a specified offence of a person-
(i)      that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and
(ii)     that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;
(c)          that the conditions in section 4(4)(c) and (d) are fulfilled in relation to any material on the premises;

(d)          that it would not be appropriate to make an order under that section in relation to the material because-
(i)      it is not practicable to communicate with any person entitled to produce the material; or
(ii)     it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or
(iii)     the investigation for the purposes of which the application is made might be seriously prejudiced unless an authorized officer could secure immediate access to the material.
(4)     The conditions referred to in subsection (2)(d) are-

(a) where the investigation is into an organized crime, that there are reasonable grounds for suspecting that the organized crime has been committed;

(b) where the investigation is into the proceeds of organized crime or a specified offence of a person-

(i) that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;

(c) that there are reasonable grounds for suspecting that there is on the premises material which is likely to be relevant to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularized;

(d)     that-
(i)      it is not practicable to communicate with any person entitled to grant entry to the premises; or
(ii)     entry to the premises will not be granted unless a warrant is produced; or
(iii)     the investigation for the purposes of which the application is made might be seriously prejudiced unless an authorized officer arriving at the premises could secure immediate entry to them.”

61. Of these, the most significant for present purposes are those contained in s 5(3)(d) and s 5(4)(d).

62. Under s 5(3)(d), an applicant for a warrant must establish that it would not be appropriate to make an order requiring a person to furnish information or produce material under s 3, either, because it is not practicable to communicate with any person entitled to produce the material or the investigation might be seriously prejudiced unless an authorised officer could secure immediate access to the material.

63. Plainly these conditions are generally unlikely to be fulfilled in relation to banks, solicitors, accountants or managers. It is difficult to envisage a situation where it would not be practicable to communicate with the appropriate persons in those institutions. It is equally difficult to imagine a situation where, armed with either a s 3 requirement or a s 4 order, and investigator would not be able to secure immediate access to the material. It may be safely assumed that bankers, solicitors, and accountants and the like, when presented with such a requirement or order, would immediately comply. That that is so may be seen from the level of co-operation afforded by the Applicants in the present case when the ICAC investigators entered the premises and disclosed the reasons for their presence.

64. Under s 5(4)(d), similar circumstances arise in relation to an order to make material available under s 4. Again, for precisely the same reasons, it is difficult to envisage a situation where it would not be practicable to communicate with the appropriate persons or the investigation might be seriously prejudiced unless an authorised officer could secure immediate access to the material.

65. The foregoing review of the powers of investigation contained in OSCO leads me to conclude that the legislature has taken specific and careful steps to ensure that whenever an investigation into organised crime is being undertaken, a particular regime must be followed when investigators require information from innocent third parties such as banks, solicitors, accountants or management offices.

66. The regime that has been established is one that premised on the basis that, with respect of those types of parties, preferably, steps should be taken that are less intrusive or draconian than a search warrant, and that a search warrant should only be able to be obtained in limited, particularised, circumstances.

67. Consequently, where in the course of the investigation into organised crime there is no difficulty in communicating with a person entitled to grant entry to premises, and it is unlikely that the investigation will be prejudiced by the inability of an investigator to secure immediate entry to the premises, it will usually be the case that there will be no entitlement to a search warrant.

68. This will be the invariable scenario in respect of banks, solicitors, accountants and management offices. Consequently, the proper procedure for an investigator to follow when wishing to obtain information or material in relation to an offence under s 25(1) OSCO, when that offence is, as here, and organised crime, will invariably be by way of application to the Court of First Instance under s 4 OSCO, for an order that the solicitor make the specified material available.

69. I have set out the foregoing review of the provisions of OSCO in order to demonstrate the legislative intention that when investigating organised crime pursuant to OSCO, search warrants should generally not be available to investigators in respect of offices such as banks, solicitors, accountants or management offices.

ICAC are obliged to follow the OSCO procedure:

70. ICAC officers are not specifically referred to as being authorised officers entitled to seek an order under s 4 or a warrant under s 5. However and ICAC officer may be authorised for the purposes of OSCO, by the Secretary for Justice. Mr McCoy’s argument was that, in the absence of a specific reference to ICAC officers as authorised officers, they were entitled to rely upon the power of search contained in s 10 ICACO. He argued that that power extended to the obtaining of a search warrant in the course of investigating a s 25(1) OSCO offence, in circumstances when that offence constitutes an organised crime.

71. Mr Dykes relied upon the principal of construction that general words do not to derogate from specific words, and the following passage from Bennion, Statutory Interpretation: A Code, 4^th Ed. P 998:

“Where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended to be dealt with by the specific provision. This is expressed in the maxim generalibus specialia derogant (special provisions override general ones). Acts very often contain general provisions which, when read literally, cover a situation for which specific provision is made elsewhere in the Act. This maxim gives a rule of thumb for dealing with such a situation: it is presumed that the general words are intended to give way to the particular. This is because the more detailed a provision is, the more likely it is to have been tailored to fit the precise circumstances of a case falling within it.”

72. This explanation of the principle deals with circumstances where, within an Act, general words are present, as well as specific words, the latter referring to a situation encompassed by the general words. Bennion at p 998, cites Professor Pearce in his work, Statutory Interpretation in Australia, 2^nd Ed p 47, where it is said that it is common sense that the draughtsman would have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically. That must be right.

73. The principle has been held to extend to circumstances where the special provision is contained in later legislation: see Richards v Richards [1984] 1 AC 174, see especially the speech of Lord Hailsham of St Marylebone at 199 where he said:

“… in my opinion, where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus chose to apply a different jurisprudence from that which the Act prescribes.”

74. I respectfully agree. In my view it is equally a matter of common sense that specific powers in relation to specific circumstances in subsequent legislation should qualify a general power in earlier legislation where, the general scope within which the power may be exercised encompasses the specific circumstances.

75. I am clearly of the view that these principles ought to apply in the present circumstances.

76. The legislature has given to ICAC a power to obtain search warrants in relation to the general group of offences which, under its authorising legislation it is entitled to investigate. Subsequently, the legislature has passed legislation to deal with a specific group of offences, collectively referred to as “organised crime”. The consequence of OSCO is that the general group of offences which ICAC may investigate will include, in certain circumstances, offences which now fall within a specific group designated as “organised crime”. The legislature has made it clear that when investigating organised crime it requires a specific procedure to be followed in respect of obtaining information from certain third parties. It has, to adopt the words of Lord Hailsham, spelt out in considerable detail what must be done in a particular class of case.

77. I have no doubt at all that it was not intended that ICAC should be able to bypass the special provisions contained in OSCO, and, together with the courts, disregard its provisions by resort to the general procedure contained in the ICACO.

78. Mr McCoy contended that the provisions in the ICACO were specific provisions and that accordingly the principle ought not to apply. The response is obvious. If they are specific provisions, those in OSCO are more specific. Plainly, the same principle must apply.

79. I accordingly hold that when, pursuant to the powers under s 10 ICACO, ICAC are entitled to investigate offences of organised crime, as defined in OSCO, ICAC officers are obliged, if they wish to obtain information from third parties, to follow the procedures set down in s 4 & 5 OSCO.

Certiorari to issue:

80. It follows that the decision of the magistrate to issue the warrants, having been made without jurisdiction, the warrants must be quashed. It further follows that the decision of the Commissioner of the ICAC to seize and detain documents and materials located pursuant to the warrants must equally be quashed. An order of certiorari must issue accordingly.

81. In case there should be concern that the foregoing conclusion will hamper the power of ICAC in appropriate cases to obtain a search warrant I should make it clear that I cannot imagine any circumstances in which the premises occupied by or used by a suspected person would not meet the qualifying words in s 5(4)(d)(i), (ii) or (iii). Consequently ICAC will have no difficulty at all, once the investigator has been duly authorised, in obtaining a warrant to search a suspected person's premises.

The Shatin documents:

82. The documents which have been described as the “Shatin documents” fall within quite a different category from those deceased from the Applicants’ office premises in Admiralty Tower.

83. The evidence establishes that when the ICAC officers entered the premises they showed the Applicants the warrants and requested assistance in retrieving the relevant material. It was agreed that the ICAC officers would not be required themselves to physically conduct the search, and the Applicants themselves would locate the appropriate documents and deliver them to the investigators. The ICAC officers remained throughout in a conference room and the documents were seized were brought to them.

84. In the course of this exercise the ICAC investigators were informed that some documents were stored in a godown in Shatin. Steps were taken by the Applicants to retrieve those documents and late in the day they were brought to the conference room and handed to the ICAC officers.

85. Mr McCoy correctly reminds me that the search warrants related solely to premises on the 23/F, Admiralty Centre, Tower II, 18 Harcourt Rd., Hong Kong. The warrants did not permit a search of a Shatin godown. Mr McCoy contended that by voluntarily retrieving the documents from a place not mentioned in the search warrant, there was a voluntary transmission of those documents by the Applicants to ICAC, and that those documents were not and cannot be covered either by the search warrants, or be the subject of any relief in the Judicial Review Proceedings.

86. No authority was cited for the proposition but I think it must be right. If a person voluntarily supplies documents or exhibits to an investigator they cannot later be heard to say that they have changed their mind. The only reason proffered for challenging the continued retention of the Shatin documents by ICAC, (other than a legal professional privilege issue to which I shall shortly refer), was that the warrants were invalid. That argument plainly cannot apply to documents voluntarily delivered from premises not covered by the warrants.

87. ICAC are entitled to retain and use the Shatin documents.

The disposition of the documents:

88. The warrants have been found to be invalid, and accordingly, strictly, there ought to be an order requiring the ICAC to return the documents recovered from the Admiralty Tower premises to the Applicants. It is abundantly plain however had an appropriate application be made to the Court of First Instance, or the District Court for a s 4 order, such an order would have been granted. In those circumstances ICAC would have been perfectly entitled to retain the documents.

89. It seems to me that an appropriate arrangement should be reached between the parties in order that the integrity of the documents is maintained and the appropriate formal procedures may be followed. In this way there can be no subsequent objection to the documents being used in appropriate proceedings in Hong Kong.

90. In this respect, leave is reserved to apply.

Legal Professional Privilege:

91. It was suggested in the Application for Judicial Review that a question of legal professional privilege might arise in respect of some of the documents seized. As I understand Mr Dykes’ position however, at the end of the day it is plain having regard to the nature of the documents that no issue of legal professional privilege arises.

92. In the circumstances I do not deal with the argument, based upon the recent New Zealand Court of Appeal decision in A Firm of Solicitors v District Court at Auckland [2006[ 1 NZLR 586 in which the court observed, in relation to searches involving law firms with was usually a plain issue of legal professional privilege, that the warrant should, in a similar manner to an Anton Piller order, contain appropriate safeguards in respect of legal professional privilege.

93. That is an issue which is presently before the Court of Appeal in Hong Kong, argument having been heard and the decision reserved, (see Rmbsa Corporate Services Ltd & Anor v Secretary for Justice CACV 327/2006).

94. It is plain from the facts in the present case that all of the parties were fully alive to the issue of legal professional privilege. Right at the start the ICAC investigators assured the solicitors that anything seized from the solicitors firm would be placed in a sealed container, and the seal would not be broken before the expiry of seven days from the date of the seizure, within which period the solicitors may institute legal proceedings to establish the claim of legal professional privilege. The evidence, unchallenged, was that the ICAC officer had informed the magistrate that this procedure would be adopted when making application for the warrant.

95. It is clear therefore that ICAC, at least, appropriately conscious of the issue of legal professional privilege when dealing with law firms. In those circumstances it may be thought that it is unnecessary to burden a warrant with conditions relating to legal professional privilege. But there is no doubt that the inclusion of appropriate provisions, in accordance with the New Zealand practice, would be an ideal practice.

96. As the matter was not the subject of detailed argument before me, I say no more than that.

The right to a copy of the warrants:

97. The evidence established that upon entry the premises the solicitors asked for a photocopy of the two search warrants. They were told that it would be necessary to make a written request to ICAC for a copy, and were only permitted to make a typewritten copy of the warrants. I have no doubt at all that the solicitors would have had a photocopy machine readily available.

98. There is no sensible reason at all why the ICAC officers should have refused the solicitors the opportunity to make a photocopy of the warrants. I trust that in future, when dealing with people who are believed by ICAC to have been innocently used by criminals, the situation will not occur again, and that a photocopy of the warrant may be taken when access has been gained to premises.

The claim for damages:

99. The relief sought in the Application includes a claim for damages and trespass to goods, to be assessed. Order 53 r 7 entitles the judge to award damages if a claim has been made in the Application. No argument was addressed to me on the question of damages, the parties are sensibly leaving that matter for consideration and determination once the outcome of the primary issue was resolved.

100. Leave is reserved for the parties to apply for directions to determine the future course of the trial on the question of damages.

Costs:

101. As there are outstanding matters costs are reserved at this stage.

(John Saunders)
Judge of the Court of First Instance
High Court

Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Messers Philip KH Wong, Kennedy YH Wong & Co, for the Applicants

Mr Gerard J X McCoy, SC and Mr Alex Lee, Senior Assistant Director of Public Prosecutions, instructed by the Department of Justice, for the Respondent

Appeal allowed: see CACV4/2008 dated 28 March 2008

PHILIP K H WONG & KENNEDY Y H WONG (a firm of solicitors) AND ANOTHER v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

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