CACV 4/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 4 OF 2008
(ON APPEAL FROM HCAL NO. 70 OF 2007)
____________________________
BETWEEN
| | PHILIP P. H. WONG, KENNEDY
Y.H. WONG & Co.
(a firm of solicitors) | 1st Applicant |
| | PHILIP (NOMINEES) LIMITED | 2nd Applicant |
| | And | |
| | THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION | Respondent |
____________________________
and
CACV 272/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 272 OF 2008
(ON APPEAL FROM HCAL NO. 70 OF 2007)
____________________________
BETWEEN
| | PHILIP P. H. WONG, KENNEDY
Y.H. WONG & Co.
(a firm of solicitors) | Applicant |
| | And | |
| | THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION | Respondent |
____________________________
Before: Hon Stock VP, A Cheung J and Wright J in Court
Date of Hearing: 4 June 2009
Date of Handing Down Judgment: 26 August 2009
_____________________
J U D G M E N T
_____________________
Hon Stock VP:
Introduction
1. This appeal concerns the issue of a search warrant authorizing officers of the Independent Commission Against Corruption (ICAC) to search solicitors’ premises for documents belonging to a client company allegedly used as a conduit for the proceeds of corruption.
2. It is the second appeal arising from the same application for judicial review.
3. The question we address in this second appeal is whether the magistrate was obliged by law to place on the warrant conditions for its execution designed to protect legal professional privilege and, if so, whether the absence of such conditions rendered the warrant invalid.
The judicial review
4. The judicial review proceedings were commenced by notice of application for leave dated 21 June 2007. Leave was granted.
5. The application challenges a magistrate’s decision in May 2007 to issue search warrants under s. 10B of the Independent Commission Against Corruption Ordinance Cap. 204 (ICACO) and the decision of the Commissioner to seize and detain documents and materials at the premises of the applicants.
6. By a judgment dated 14 December 2007, Saunders J set aside the warrants on the footing that whenever the ICAC (or for that matter any other law enforcement agency) happens to be investigating an organized crime as defined by the Organized and Serious Crimes Ordinance, Cap. 455, (OSCO) even if as part of a wider non-organized crime investigation, it was bound to use the search warrant procedures prescribed by OSCO at least so far as concerned the investigation into the OSCO offence.
7. By a judgment dated 28 March 2008[1] this Court, differently constituted, held that conclusion to be erroneous, allowed the appeal, and set aside the judge’s determination.
8. That however did not dispose of the case finally, for the judge below had not determined a contention by the applicants that the warrants were invalid because the magistrate had failed to attach to them conditions designed to protect legal professional privilege. Accordingly, the case was remitted to the judge for determination of all outstanding issues.
9. By a judgment dated 7 August 2008, the judge dismissed the application for judicial review in relation to the second applicant, the nominee company. He did so by reason of the decision of this Court, differently constituted, in RMBSA Corporate Services Ltd v Secretary for Justice.[2] There is no appeal against that dismissal.
10. However, he found in favour of the first applicant, the solicitors’ firm. In doing so, he:
(1) held that the warrant purporting to authorize entry into and search of the offices of the firm was invalid and made a declaration that it had been unlawfully issued;
(2) declined to make the order of certiorari that had been sought, namely, to bring up and quash the decision to issue a warrant. He declined to make that order because the warrant had been executed with proper regard to the claim to legal professional privilege that had been made, and no injustice to the solicitors’ client had been occasioned; and
(3) condemned the respondent in damages in the sum of $100 on the basis of the trespass constituted by an entry that was, he found, unlawful because the warrant was invalid.
Save insofar as the judge found that the warrant was executed with proper regard to legal professional privilege and for his refusal to make an order of certiorari, this appeal challenges his findings and orders.
11. Both parties before us have acknowledged that absent an order of certiorari which has the effect of quashing the warrant, the finding of trespass is not supportable. But the outcome of this appeal has not, in the event, turned on this point.
The factual background
12. On 6 December 2006, Mr Ao Man Long, a senior public official employed by the Government of the Macau Special Administrative Region was arrested in Macau in relation to corruption offences committed there.
13. The ICAC commenced an investigation into allegations that Ao had accepted advantages from individuals and companies in Hong Kong as reward for showing them favour in relation to the affairs of the Macau Government. The ICAC investigators had reasonable grounds to suspect that Ao had laundered the proceeds of the alleged corruption through various persons and companies, including a company called Roselle Court Limited (Roselle Court).
14. Roselle Court is a BVI company. It has a bank account in the UK with a substantial balance and owns expensive property abroad. Its director was Philip Nominees Limited (the second applicant), a company that shares the same address as Philip K H Wong & Co, solicitors (the first applicant). The ICAC believed that both the nominee company and the solicitors had been used as innocent agents to disguise Ao’s corruption and to facilitate the laundering of corrupt money.
15. Against that background, the ICAC wanted to inspect such banking, accounting and other records relating to Roselle Court and to Ao at the offices of the nominee company and the solicitors as were thought likely to contain evidence of the offences which they were investigating. So they applied for a search warrant pursuant to the provisions of s. 10B of ICACO.
The warrant
16. On 22 May 2007 the ICAC officer in charge of the Ao investigation appeared before a magistrate, Mr Winston Leung, at Eastern Magistracy and laid before him a lengthy information in support of an application for two search warrants, one to authorize a search at the premises of the nominee company and the other at the premises of the solicitors’ firm. We do not know the terms of the information because, prima facie, the contents are covered by public interest immunity and nothing turns on the contents.
17. According to the unchallenged evidence before the judge below, the magistrate read the information and asked the officer questions arising from it. The magistrate was aware that one of the premises to be searched was that of a firm of solicitors and an undertaking was given to the magistrate that any material seized from the firm for which legal professional privilege was claimed would be placed in a sealed container and that the seal would not be broken before the expiry of seven days from the date of seizure to enable the claimant to institute proceedings in that time to establish a claim of privilege.
18. The magistrate thereupon issued the warrants. The warrant with which we are concerned recites the fact of the ex parte application to enter and search premises pursuant to section 10B of ICACO and the fact that upon hearing the officer on oath and reading the information, the magistrate was satisfied that there was reason to believe that in the solicitors’ offices there were records relating to Roselle Court and to Ao which contained evidence of the offences of accepting an advantage and dealing with property known or believed to represent proceeds of an indictable offence referred to in s. 10 of that Ordinance. Accordingly, he authorized that officer and any other investigating officers of the ICAC to enter those premises and to search them for bank records, company registration records, accounting records, and other documents or things relating to Roselle Court and to Ao which contained evidence of such offences.
Execution of the warrant
19. Apart from one or two details which are of no present consequence, the facts relating to execution of the warrant are not in issue.
20. Shortly after 10 a.m. on 23 May 2007, the ICAC officers assigned to execute the warrants arrived at the offices of the nominee company and of the firm, each located in Admiralty Centre, Central. The officers showed their warrant cards to the receptionist and were taken to a conference room to which in due course one of the partners of the firm came. He was shown the search warrant relating to the firm and he was told that the purpose of the visit was to execute the two search warrants. The nature of the investigation was revealed and the partner was told that it was the general practice of ICAC officers to ask the solicitors themselves to locate and produce the materials covered by a warrant. The partner of the firm (as well as the director of the nominee company) agreed that instead of the officers carrying out the search, they would seek out the relevant material themselves.
21. The evidence is that shortly thereafter another partner told the officers that Ao was not a client of the firm so that the firm could only produce material relating to Roselle Court but he claimed legal professional privilege in relation to that material. He was assured by the officer that whatever material was seized from the firm pursuant to the search warrant would be placed in a sealed container and the seal not broken before the expiry of seven days from the date of seizure and that an undertaking to that effect had been given to the magistrate in the course of the application for the search warrant. A written undertaking in those terms was given to the solicitors. Some documentation in the custody of the nominee company was handed over but we are not concerned in this appeal with that documentation. The officers were told that there were some old files in the firm’s custody relating to Roselle Court that were kept in a warehouse in Shatin and that they were to be collected.
22. At about 5 p.m. the officers were handed three files by two partners of the firm and the officers compiled lists of items they intended to take away. Those documents were sealed in a carton box and remain in the custody of the ICAC.
23. One ground of appeal is that the judge erred in concluding that the warrant had been executed. The contention is that the officers entered as invitees and that no search was carried out by them. It is not in the event necessary for us to determine this point though the suggestion seems to me to be artificial for had the officers not been in possession of a warrant it is unlikely that they would have been invited in: all that happened was that they were treated with courtesy in the face of a warrant.
The judgment
24. The judge commenced his analysis by observing that s. 10B of ICACO – he wrote ‘10C’ but that must be a slip – the provision pursuant to which the warrant in this case was issued, did not permit the seizure of documents to which legal professional privilege attached. That is an important and correct observation with which his ultimate decision as to the validity of the warrant does not sit comfortably.
25. The judge emphasized the fundamental importance of legal professional privilege but he recognized that a mere assertion by a solicitor that privilege attached to a document does not determine that issue. He then described the practice that prevails in this jurisdiction when law enforcement officers wish to seize documents for which the privilege has been claimed. That practice, he said, is that “a solicitor will usually be present, who makes the claim for [privilege], 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 [of privilege] is determined.”
26. The judge then analyzed a number of decisions in New Zealand and Canada. He interpreted those decisions as requiring the judicial authority which authorizes a search of solicitor’s premises to impose conditions for the execution of the search, failing which the warrant is rendered invalid. However, he qualified that by saying that it seemed clear to him that those requirements arose from specific statutory provisions that required the protection of legal professional privilege.
27. The judge analyzed as well a number of Hong Kong decisions to which I shall presently refer. He concluded that none squarely addressed the question that arose in the present case.
28. He then referred to the fact that “the right to [legal professional privilege] has been enshrined in Hong Kong’s fundamental constitutional documents, the Basic Law and the Bill of Rights Ordinance” a fact which, he said, enhanced the importance of that privilege. He then said this[3]:
“It is right that a practice has developed whereby enforcement authorities required to execute a search warrant [at] a solicitor’s office will do so during normal office hours and, upon a claim for [legal professional privilege] being made will seal and protect the relevant documents, pending resolution of the claim. But, having regard to the fact that no search can ever authorise the seizure of documents to which [privilege] attaches and the importance of [the privilege] and balancing the rights 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 the time has now arrived to elevate that practice to the requirement of formal conditions, creating a mechanism by which the right to [the privilege] 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 the lawful powers of search.
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 [legal professional privilege] the warrant will be unlawfully issued.”
29. He did not explain why the decision of a magistrate to issue a search warrant for execution upon solicitor’s premise was lawful if conditions for its execution were stated upon the face of the warrant, but unlawful if, as in the present case, the decision followed an undertaking to the court that it would be executed upon the same conditions.
30. Presumably by “appropriate conditions”, the judge intended that the conditions would be appropriate to the particular case, a proposition which would – assuming the imposition of such conditions to be necessary for the warrant’s validity – immediately give rise to the prospect of argument as to the validity of the warrant in almost every such case for there will always be room to suggest that a further condition would have been appropriate or one of the conditions imposed was inappropriate.
31. This potential difficulty was addressed by the judge in that he:
(a) stated that it was essential that the magistrate be fully and clearly informed on affidavit of the fact that a solicitor’s office was to be searched; that the application for a search warrant was to be accompanied by a memorandum from counsel “setting up [the] legal issues which require decision by the issuing judicial officer and outlining the arguments on both sides”; that the warrant had clearly to identify the client whose documents were sought and the nature of the documents but if the client could not 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.”; and
(b) purported to stipulate the minimum conditions. I say “purported” because by saying that “as a minimum [the methods of execution to be stipulated] will include the following” (emphasis added) he implied that there might be other minimum conditions. The minimum conditions which he stipulated went further than the conditions which had been suggested by Mr Dykes, for the firm. The conditions thus stipulated by Saunders J were these:
(i) that the search had to be undertaken in the presence of a principal of the firm;
(ii) that save in special circumstances a search had to be conducted during office hours or at a time specified by prior notice to the solicitors;
(iii) that in an extreme situation where a principal of the firm could not be found, an appropriately experienced independent practitioner should be present “to make a claim for [legal professional privilege] on behalf of the client”;
(iv) that whenever a claim for privilege was made, the documents were not to be shown to the investigators but immediately placed in a container which was then to be sealed;
(v) that “a schedule describing the general nature of the documents to which claim for [privilege] is made must be supplied to the investigators”;
(vi) that pending resolution of the claim for privilege the seized and sealed documents were to remain in the custody of the investigators;
(vii) that no later than seven days following the seizure, the person who claims privilege shall appear either in person or by solicitors or counsel before the magistrate who has issued the warrant, for determination of the claim; and
(viii) that neither the investigators nor those acting on their behalf would have the right to inspect the allegedly privileged documents prior to the magistrate’s determination of the claim.
He added conditions to be imposed in relation to searches where information from computers was sought.
32. Significantly, the judge emphasized that he considered “these provisions to be guidelines to give effect to the ‘best practice’ that has been adopted now for some time.” Some cases, he said, would require further conditions. He concluded that if the magistrate was not informed that the proposed search raised issues of legal professional privilege “or that there is a failure to attach appropriate conditions to the search warrant, any warrant issued will be unlawfully issued.” He stated that his conclusions applied not only to applications by the ICAC but to any other investigating authority.
33. If indeed the provisions suggested give effect to present best practice, it would appear that the only advantage of stipulating execution conditions on the face of the warrant is that the person in respect of whose premises the search warrant is issued is made aware by the document itself of the steps which have to be observed by the executing officer to safeguard documents to which privilege might attach. I do not belittle that advantage but the question is whether it is correct to conclude that although an undertaking is given to the court to follow that best practice the fact that the undertaking is not translated into conditions expressed on the face of the warrant renders the warrant invalid.
34. Some of the suggested minimum conditions in any event do not reflect current practice. More importantly, some are beyond a magistrate’s lawful power, namely:
(1) the requirement for the presence of an independent practitioner: a magistrate has no power under ICACO to accord such a person authority to enter the premises of others, a person, moreover, to whom the client will not have granted permission to look at privileged material; and
(2) the stipulation that the parties return with the documents before the issuing magistrate for him to determine such claims to privilege as have been made is to confer a jurisdiction upon a magistrate not provided by statute. The functions of a magistrate can only derive from such powers as are expressly or by clear implication conferred by the empowering statute itself. I fail to see anything in the statute in question that confers the power which the judge would confer. That a magistrate is not intended by the Magistrates Ordinance, Cap. 227 to enjoy such a power is clear enough, not only from its face, but also from the fact that there could be no appeal from such a determination save by judicial review because appeals lie only under either s. 105 Magistrates Ordinance Cap. 227 by way of case stated, a procedure not designed for such a determination; or under s. 113 Magistrates Ordinance from convictions, orders or determinations in connection with an offence by a person who has not pleaded guilty or against sentence if he has pleaded guilty.
35. This serves to illustrate the considerable care with which the imposition of conditions – assuming a power to impose them – would have to be approached by a magistrate.
The statutory provisions
36. The power to issue a search warrant is conferred by s. 10B of ICACO, Cap. 204:
“Without prejudice to section 17(1) of the Prevention of Bribery Ordinance (Cap 201), 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 is or contains evidence of the commission of any of the offences referred to in section 10, he may by warrant direct to any officer authorize such officer, and any other officers assisting him, to enter and search such premises or place.”
37. One notes that the authorization envisaged is limited to entry and search and does not extend to seizure of material; to the significance of which I will return. Section 10C deals with seizure though not expressly as a consequence of a warrant:
“(1) An officer authorized in that behalf by the Commissioner may –
(a) search any person if he reasonably suspects that such person is guilty of any of the offences referred to in section 10;
(b) search the premises or place in which any person was arrested under section 10, or the premises or place in which a person who evades arrest therein under section 10 was to be arrested, for evidence of any of the offences referred to in that section;
(c) seize and detain anything which such officer has reason to believe to be or to contain evidence of any of the offences referred to in section 10;
…
(2) …
(3) The powers conferred by subsection (1) shall not derogate from the power conferred on any officer by Section 17 of the Prevention of Bribery Ordinance (Cap 210) or a warrant issued thereunder.”
38. An officer for the purpose of the section is one appointed by the ICAC Commissioner under s. 8 of ICACO. No question arises in this case but that the offences under investigation were offences referred to by s. 10.
39. Section 17 of the Prevention of Bribery Ordinance, Cap. 201, to which s. 10B refers, makes provision for the issue by a court of a search warrant where the court is satisfied that there is reasonable cause to believe that in any premises or place there is anything which contains evidence of an offence under that Ordinance. There is a provision (sub-section (2)) which is expressed to be without prejudice to any other law relating to entry and search, that precludes entry to counsel’s chambers or solicitors offices, save where such a practitioner is himself the subject of investigation for an offence under the Ordinance.
40. Section 18 of ICACO provides that:
“Nothing in this Ordinance shall prejudice any claim to privilege which any person may have at common law in relation to any communication, document or other thing made or given to a solicitor or counsel.”
41. It follows that no warrant which is issued under s. 10 B authorizes the unconditional seizure of material to which legal professional privilege arises: it is clearly implicit by a combination of the two provisions that an opportunity be given for such a claim to be made and in any event the protection of the privilege is of such fundamental import that it would take clear legislative provision[4] to override it: Shun Tak Holdings Ltd v Commissioner of Police[5] and Pang Yiu–hung v Commissioner of Police[6]. It is not necessary in this appeal to decide whether legislation seeking to override it would survive art. 35 of the Basic Law.
42. The provisions of the Basic Law which are said to be germane to search warrants and to issues of privilege are:
(1) art. 29 which prohibits arbitrary or unlawful search of premises;
(2) art. 30 which protects the privacy of communications;
(3) art. 35 which provides for the right to confidential legal advice; and
(4) art. 87 which provides for the right to a fair trial.
43. Article 14 of the Bill of Rights Ordinance is also prayed in aid: it provides that no one shall be subjected to arbitrary or unlawful interference with his privacy or home. It repeats in domestic statutory form art. 17 of the International Covenant for Civil and Political Rights which in turn is given constitutional effect by art. 39 of the Basic Law.
The practice
44. Section 10B is broadly framed.[7] One notes at once that it is bereft of express conditions that circumscribe execution of warrants on solicitors’ premises. One notes as well that this jurisdiction has not embraced legislation or protocols designed specifically for such searches.[8]
45. The ‘best practice’ to which the judge referred has been described in McWalters Bribery and Corruption Law in Hong Kong[9]:
“In Hong Kong, the law enforcement agencies have developed a procedure when they are met with a claim of privilege in respect of material they are proposing to seize from premises they have entered under a search warrant. In the presence of the person asserting the claim of privilege, they exercise their power of seizure but separate the disputed items from those in respect of which no claim of privilege is made and place the disputed items in a container which is then sealed. The officers will inform the person asserting privilege that he must take steps to establish his claim within a specified number of days, failing which the sealed container will be opened and the seized items inspected. This procedure ensures the privacy of the seized items but places the onus on the person asserting the privilege. Of course, if the law enforcement officer believes that the items over which privilege is claimed are subject to LPP then he must not seize them, but he is not bound to accept at face value a claim to LPP whether it is raised by the client or his lawyer. Indeed, invariably the seizing officer will have to at least examine the item and perhaps even take legal advice in respect of it in order to test the validity of the asserted claim. If after that process he has reasonable grounds for believing the seized item is subject to LPP he must return the item forthwith without further examination of it. Notwithstanding that he has come to this conclusion, his original seizure would not have been illegal because at the time of seizure he had no reasonable grounds for believing the item to be subject to LPP.
The procedure of sealing the disputed items is a compromise one that seeks to balance the importance of the privilege against the needs of the law enforcement agency. Clearly, any delay caused to the investigation may be highly prejudicial to its ultimate outcome and the value to the investigation of the items in dispute may be significantly eroded by denying the investigators immediate access to them. Yet as unsatisfactory as this compromise is, it is nevertheless as practical a one as the law currently allows. The number of occasions on which it is called in aid are not great and these could be reduced further by lawyers providing accurate legal advice to clients on what is and is not protected by legal professional privilege. The case law suggests that some claims should never have been made, least of all actually litigated.”
46. The absence of legislation and of protocols contrasts with the position in many common law jurisdictions. Given the fundamental importance of the principles to which I shall next turn, the benefit to law enforcement authorities of clear guidance and the scope for prolonged litigation – of which this case is an example – that is encouraged by the absence of such legislation and protocols, it seems to me important that consideration be given to such measures, directed at regulating the execution of search warrants issued in respect of the premises of solicitors and counsel. Whilst I sympathise with the judge’s concern that uniform guidelines for the operation of such searches and consequential seizure procedures be promulgated, such an exercise is, in my opinion, eminently more appropriate for others after the full consultation processes that normally precede legislation or protocols; processes that allow mature consideration of competing interests and of the ramifications of specific proposals if implemented.
Key principles
47. The starting principle is the inviolability of private premises from arbitrary intrusion. The right to security of one’s home and of the place in which one works is a right historically protected by the common law and now widely recognized in constitutional and other human rights instruments. It is therefore incumbent on every magistrate or judge to whom an application to permit such an intrusion is made to remind himself of the seriousness of the act which he is asked to authorize and not to permit the apparent simplicity of the procedure or the frequency with which it is invoked to devalue its significance. The duty upon him has been described as “a high duty… to protect individual citizens from arbitrary infringements of their liberties, as well as a responsibility to facilitate the conviction of the guilty in the interests of the whole of society.”[10]
48. The fulfilment of this duty means that the task must be approached judicially; in other words, the judicial officer must apply his mind to the individual circumstances of the case and exercise his own judgment. He must act within the boundaries of his powers as prescribed by the statute pursuant to which the application is made and, if an intrusion is, within those boundaries, justified by the facts ascertained by him, he should ensure that the intrusion authorized goes no further than is reasonably necessary for the permissible objective and that the parameters of the authorization are sufficiently clear on the face of the warrant, so that the person executing the warrant and the person upon whom it is served knows what is and what is not permitted.
49. Where it is intended to search premises of a solicitor’s firm or of counsel’s chambers or where otherwise there is cause for a particular belief that the material sought is likely to include privileged information, that fact must be disclosed by the applicant to the magistrate. That is because there is a duty to disclose any fact that is material to the exercise of the power to issue a warrant, and the importance of legal professional privilege is such that the likely presence of privileged material in the place to be searched is self-evidently a material fact. Legal professional privilege is not some irritating obstruction to law enforcement, but is a principle which is applied for the common good, for the benefit of the public of which the investigator is but part. The privilege has been described as “the oldest of the privileges for confidential communications,”[11] so its importance has been recognized and safeguarded by the common law long before it found constitutional expression in Hong Kong. Thus the argument before us, which is an echo of the judge’s reasoning, that protection by the Basic Law of legal professional privilege and against arbitrary searches dictates a new approach is, in my opinion, ill-founded in the sense that the principles have always demanded a vigilant approach by the courts.
50. The principle of legal professional privilege arises from the fact that no person faced with legal problems can or should reasonably be expected to resolve them without recourse to legal advice and he has a right to seek and obtain such advice. But the freedom with which he seeks advice and with which the adviser gives it is of no use unless the confidentiality of their communication is protected by law. Thus it has been said that the solicitor-client relationship “is integral to the workings of the legal system itself … part of that system, not ancillary to it …[and] … essential to the effective operation of the legal system”: R v McClure[12]. It is “a fundamental condition on which the administration of justice as a whole rested”: R v Derby Magistrates, ex p B[13]. Of this precept the issuing authority must be ever conscious.
51. At the same time, it is false to assume that the hands of the legal adviser are an automatic safe haven for whatever material the client would there deposit, for a solicitor holds a client’s documents “in the right of his client and can assert in respect of its seizure no greater authority than the client himself or herself possesses”: R v Peterborough Justice ex p. Hicks.[14] In other words, the client should not, merely by entrusting material to his solicitor, be placed in a more advantageous position than had he retained the material himself[15]. Over time the boundaries of legal professional privilege have been sufficiently defined for legal advisers (and the courts) to be able in most cases to identify quite readily what material is and is not covered by the privilege and yet, as Mr McWalters correctly suggests[16], claims for legal professional privilege are sometimes made as a matter of course only to prove unwarranted. It is not necessary for the purpose of the present appeal to summarise the circumstances in which it arises and those in which it is excluded.
52. Legal professional privilege was once considered to be merely a rule of evidence, namely, a privilege to be invoked only when it was sought to compel disclosure to the court or to an opponent in the context of litigation. It now tends to be recognized as a substantive right arising from considerations of public policy, a right, in other words, that may be asserted in non-litigious contexts.[17] The protection of the right to confidential legal advice guaranteed by art. 35 of the Basic Law cements that approach.
Is there a discretion to impose conditions?
53. It was argued by Mr McCoy SC for the respondent that there is no power in the magistrate to impose conditions upon the execution of the warrant.
54. One starts from the premise that magistrates derive their powers from statute and enjoy no inherent powers. The right to impose conditions, if it exists at all, must therefore be found in the express terms of the statute or by necessary statutory implication.
55. There is no express power in s 10B for the imposition of conditions. Conversely, there is nothing which expressly prohibits such a step. The question therefore is whether there is an implied power and the test in this jurisdiction is that propounded by the Court of Final Appeal in PCCW-HKT Telephone Ltd v Telecommunications Authority[18]:
“36. … the correct test for determining whether an inferior court or tribunal has an implied power is…the one articulated by Dawson J in Grassby v. R (1989) 168 CLR 1 at p. 17 and accepted by the other members of the High Court of Australia hearing that appeal. It comes to this. An inferior court or tribunal has such ancillary powers as are derivable by statutory implication and required for the effective exercise of jurisdiction expressly conferred upon it.
…
40. Another decision of the High Court of Australia on powers by necessary implication is Pelechowski v. Registrar, Court of Appeal of New South Wales (1999) 198 CLR 435. At p. 452 Gaudron, Gummow and Callinan JJ said in their joint judgment that in this context the term “necessary” is to be understood in the sense ascribed to it by Pollock CB in Attorney-General v. Walker (1849) 3 Ex 242 at pp 255 – 256,154 ER 833 at pp. 838-839. The term, their Honour[s] said and I agree, connotes what is “reasonably required”.”
56. It is to be noted that the power conferred by s. 10B is to authorize entry and search. The warrant to which the statutory provision relates does not extend to an authorization to seize. Seizure must be authorized separately by the Commissioner under s. 10C. It follows that the magistrate has no power to place conditions on the seizure of material. But it is my judgment that a discretion to impose conditions upon the execution of the search is one that is reasonably necessary to imply to enable the magistrate effectively to carry out the duty imposed upon him by s. 10B. The alternative is to assume an all-or-nothing approach which, so it seems to me, would be inimical to the statutory objectives which are, on the one hand, to facilitate effective crime detection and prosecution and, on the other, to protect the individual from unrestricted access to his premises and from disclosure of privileged material.
57. The discretion thus afforded magistrates by necessary implication to impose conditions upon the execution of the search is one which should be approached with considerable care for:
“ …it goes without saying that the justice may sometimes be in a poor position to assess the need for the search in advance. After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed.”[19]
58. The question was posed by the Court in the course of the hearing of the appeal whether the power to impose conditions was in any event conferred by the terms of s. 40(2)(b) of the Interpretation and General Clauses Ordinance, Cap. 1 which provides that:
“(2) … where any Ordinance confers power –
(a) …
(b) to grant a licence, Government lease, permit, authority, approval or exemption, such power shall include power to impose reasonable conditions subject to which such licence, Government lease, permit, authority, approval or exemption may be granted; ….”
59. Counsel’s reaction to the question, without the benefit of research or time for reflection, was to suggest that the subsection did not apply to the power conferred by s. 10B of ICACO because subsection (2) of s. 40 of the Interpretation and General Clauses Ordinance referred to a class of power of a particular kind, namely, licences or permits granted by governmental agencies. I think it rather difficult to apply the ejusdem generis principle to the terminology used because I do not think that a specific genus of authority or permit is sufficiently delineated. I am inclined, therefore, to the view that s. 40(2) confers the power to impose conditions on warrants issued under s. 10B, but the point allows of further argument and research – I would be surprised if there were no decision on the ambit of the sub-section – and it is not in the present case necessary to decide it.[20]
60. It follows from the discussion thus far that a magistrate must, upon application for a search warrant under s. 10B, be alert in all cases to the significance of the authority which he is asked to confer; and particularly sensitive to applications which seek authority to search for material in solicitors’ premises. In the latter instance, he may not authorise a search for materials which are known at the time of the application to be privileged; and has, in my opinion, a discretion, to be exercised judicially, either to refuse to grant the warrant if he is not satisfied that a suitable mechanism will be in place to safeguard material for which legal professional privilege may be claimed or to impose conditions for the execution of the warrant which will provide that mechanism.
61. In the instant case, the argument is that the undertaking to the court by the applicant for the search warrant provided the magistrate with an assurance of a suitable mechanism. The question which we have to determine is whether that was good enough or whether it is essential to the validity of the warrant that the mechanism appears on its face.
The complaint
62. It is important to identify the nature of the complaint in this case.
63. It is not suggested that s. 10B is itself unconstitutional by reason of a failure to require a magistrate to impose specific conditions whenever there is reasonable ground for apprehending that an intended search may uncover privileged material. To the contrary, the suggestion is that the statute requires the imposition of conditions and that they be reflected on the face of the warrant.
64. There is no suggestion in this case that the magistrate did not consider issues which by statute he was required to consider. Insofar as the respondent’s notice in the previous appeal might be read as suggesting that there was no evidence that he addressed the question of privilege, that cannot hold good. He evidently considered the question of privilege for we know that he was given certain undertakings as to its protection.
65. There is no suggestion that the magistrate was not a person authorized to issue the warrant or that the person who laid the information was not authorized to do so, or that he withheld material information from the court. There is no suggestion that the premises to be searched were not sufficiently identified or that the material for which the search was permitted was not sufficiently particularized. Had there been a proper factual basis for them, these would have been grounds for challenging the validity of the warrant.
66. The complaint is as to the form of the warrant. What we are concerned with in this case is whether the legislation required the warrant to state conditions designed for the protection of material to which legal professional privilege applied or for which it might be claimed; remembering that the warrant could not properly address seizure of material, because seizure is not a matter for the magistrate under s. 10B of ICACO. It is only if the legislation required such conditions to be inserted that one would then consider whether the failure to impose them rendered the warrant invalid; and that would turn on the question whether “there is either an express or implied legislative intention that such a defect will render the warrant a nullity or the defect has caused a miscarriage of justice”: R v Sanders.[21] The issue we have first to decide is whether there is a defect at all; whether the legislation demands the imposition of conditions. That too is a matter of statutory construction.
The authorities
67. In A-G of Jamaica v Williams[22] Lord Hoffman remarked[23] that in that case:
“Any inquiry into the formal validity of the warrant must start from the undoubted fact that the section does not prescribe any form at all. The language of the warrant must be such as plainly to authorise the acts of which complaint is made, but any further requirements as to form can only arise by implication.”
68. His Lordship drew a distinction between that which, on the one hand, might be desirable in order sufficiently to assure a householder of the legality of the intended entry and search and on the other that which rendered a warrant invalid because it was not issued under proper authority. He warned[24] that:
“Although the courts may sometimes feel frustrated by their inability to go behind the curtain of the recital that the justice was duly satisfied [as to the matters upon which the statutory provision requires him to be satisfied] and to examine the substance of whether reasonable grounds for suspicion existed…their Lordships think that it would be wrong to try to compensate by creating formal requirements for the validity of a warrant which the statute itself does not impose.”
69. In Apple Daily Ltd v Commissioner of the Independent Commission Against Corruption[25], Chan CJHC (as he then was) summarized the effect of Inland Revenue Commissioners v Rossminster Ltd[26] as follows:
“(1) it is a matter of construction of the empowering statute to decide (a) the scope of the powers of the issuing authority,(b) the conditions which have to be satisfied for the issue of the warrant, and (c) what is to be stated in the warrant. The second and third matters go to what are sometimes called the essential and formal validity of the warrant respectively;
(2) if it appears that a warrant falls strictly and exactly within the provisions of the empowering statute in that all the conditions have been satisfied, it would be upheld;
(3) if the empowering statute does not require any particular form for the warrant, it would be held valid so long as it contains the basic details which are provided for in the statute.”
70. We may usefully turn in this regard to Professor Feldman’s work The Law Relating to Entry, Search & Seizure[27] for its suggestion of implied requirements for the form of search warrants and the rationale for the implications:
“Generally, warrants authorise officers to do things which would otherwise be unlawful. The warrant fulfils three main functions. First, the requirement for the officer to apply for a warrant in theory gives another person, usually an independent judicial officer, a chance to check on the need for the search … . Second, the warrant allows the occupier of the premises to be searched to satisfy himself that the officers who arrive and demand to be admitted are acting lawfully. This cuts down the risk of misunderstandings, violence and criminal charges which often follow, and makes the job of the police easier. Third, it should indicate the limits to the powers of the officers, circumscribing their discretion in clarifying their rights. This is less easy to do since English common law extensions of powers under warrant have made it legal to seize certain goods not identifiable by reference to the warrant. The warrant should be in a form which will enable it to perform these functions, by showing that its issue was an intra vires act by a proper authority and by indicating the limits and purpose of the officer’s authority. A warrant which does not do these things will fail to fulfil one or more of the purposes expected of it.”
71. Professor Feldman concluded[28] that the principles to be extracted from the authorities as to what a warrant must show were these:
“(1) the warrant must show that it has been issued by the proper authorities; (2) it must show that the preconditions to its issue have been fulfilled; (3) it must be directed to proper people; (4) the place to be searched must be clearly identified; (5) the articles sought must be sufficiently indicated; (6) the offence in respect of which the warrant is issued must be sufficiently indicated; (7) any other matters necessary to the validity of a particular warrant must be shown, and some others are desirable.”
72. “Any other matters necessary to the validity of the warrant” depends, as the author indicates,[29] upon the wording of the statute in question. Thus, for example, if a warrant is by reason of statute valid for a set period only, the date of its issue must be stated.
73. It was suggested in argument in Shun Tak Holdings Ltd[30] that the warrant was invalid because on its face it failed to exclude documents and records protected by legal professional privilege. The search warrant had been issued by a magistrate pursuant to s. 50(7) of the Police Force Ordinance, Cap. 232. That provision is drawn widely and enables a magistrate to issue a search and seizure warrant where it appears to him on the oath of any person that there is reasonable cause to suspect that there is in premises material which is likely to be of value to the investigation of any offence that has been committed or that is reasonably suspected to have been committed. Although the warrant was not directed at the offices of solicitors, solicitors representing individual applicants and a company attended premises during the execution of the warrant and claimed that some of the documents which the officers were gathering under warrant were covered by legal professional privilege. The documents were then sealed and retained by the investigating authority to enable the applicants to make an application to the court.
74. Kaplan J, upon a judicial review, addressed the suggestion that the warrant was invalid because it failed expressly to exclude documents and records protected by privilege:
“This point was faintly taken [on behalf of the applicants] because there are obvious problems with it. It is true that in Re Ip and Willis, the warrant was set aside but this was because s 18 of the Independent Commission Against Corruption Ordinance expressly preserved [legal professional privilege] in relation to search warrants issued under that Ordinance. No such restriction applies here. Further, it would be impossible for the magistrate to know in advance whether [legal professional privilege] was correctly claimed or whether, in the circumstances of any particular case, it had been overridden. Further, the privilege may not be that of the party under investigation. A third party may be perfectly prepared to waive the privilege. In my judgment, there is nothing in this point and the warrant is not bad simply because it fails to exclude documents which may be covered by [legal professional privilege].”[31]
75. The reference to Re Ip and Willis[32] is to a decision of Sears J by which he held invalid a warrant issued pursuant to s. 10B of ICACO. The ICAC was investigating allegations of criminal conduct against a solicitor’s clerk and wished to know the names and addresses of such of the solicitor’s clients as had dealt with that clerk and to see the official receipts issued to them. To this end, they sought and obtained a search warrant from a magistrate. The warrant merely recited the fact that since it appeared to the magistrate that there was reason to believe that in the solicitor’s premises “there may be anything which is or contains evidence of the commission of an offence referred to in s. 10 of [ICACO]”, he authorized certain named officers of the ICAC “to enter such premises or place, and search the same.”
76. There is a marked difference between the lack of specificity in the Ip and Willis warrant and the particularity in the warrant with which we are concerned. In the Ip and Willis case there was no identification as to which of the many offences covered by s. 10 was suspected and no mention of the client or clients or other third parties in respect of whose papers or other material the proposed search was authorized. It is difficult to envisage a warrant drawn in broader terms and hardly surprising that Sears J decided that the warrant was “so wide and general in its terms as to be invalid.”[33] He noted, in coming to that conclusion, that the warrant was silent as to which of the wide range of offences to which s. 10 referred it was issued and, further, that the warrant was silent as to what category or class of material the law enforcement authority was looking for. In relation to legal professional privilege he said this[34]:
“Further, [the warrant] did not limit the documents, if they were being sought, so that Legal Professional Privilege was not infringed. Section 18 of the Ordinance declares that the common law position does not prejudice any claim to privilege in relation to any communication document or other thing made or given to a solicitor or counsel. A person in the office, who was suddenly handed this document, would not know if it was a partner, an employee, or a client of the firm who was under investigation, and what should be handed over.”
77. I do not read the judgment of Sears J as authority for the proposition that a warrant under s. 10B is invalid if it does not set conditions designed to protect legal professional privilege. The matter upon which Sears J concentrated in this respect was the fact that, as that warrant was drawn, there was no way in which the recipient of the warrant could determine whether the documentation sought was that of a client or of some other party, thereby rendering difficult, if not impossible, for the solicitors’ firm, any decision-making exercise in relation to legal professional privilege. In any event, this was but one facet of the lack of particularity attaching to the warrant in that case.
78. Insofar as Kaplan J in Shun Tak Holdings drew a distinction between the case before him and Ip and Willis on the basis that “s. 18 of [ICACO] expressly preserved [legal professional privilege] in relation to search warrants issued under that Ordinance,” I do not, with respect, see a proper basis for that distinction, not least since Kaplan J held[35], correctly in my view, that the legislature did not, in enacting s. 50(7) of the Police Force Ordinance, intend to abrogate the application of legal professional privilege to search warrants issued under that provision. That apart, I do not interpret his reasoning as acknowledging that a warrant issued under s. 10B of ICACO requires legal professional privilege conditions on its face.
79. In Allitt v Sullivan,[36] another case of a search warrant permitting search of a solicitor's office, the Supreme Court of Victoria reviewed a decision of a magistrate by which he had held the warrant to be invalid because it was not endorsed with any notation that it did not apply to documents to which legal professional privilege attached. The Court, by a majority, reversed the magistrate’s decision.
80. One of the matters noted by the Court was that none of the documents encompassed by the schedule to the warrant suggested on their face that legal professional privilege attached. This was to be contrasted with Bakerv Campbell[37] where the warrant authorised the police to seize, upon the premises of solicitors, documents which included opinions of counsel and with Arno v Forsyth[38], in which the warrant also referred to documents prepared by a barrister, including opinions. The warrants in Baker and Arno were issued under s. 10 of the Crimes Act 1914 which were bereft of the provisions to be found in s. 465 of the Crimes Act 1958 with which the Court in Alitt was concerned, provisions which required the authorized constable to carry seized material to a magistrate or judge to be “by him dealt with according to law.”
81. According to Murphy J in Allitt[39], the court in Arno had suggested guidelines, though not hard and fast rules, to deal with “the practical problem presented if the issue of legal professional privilege was thought to arise only at the time of execution of the warrant” and he said:
“It may be that on the facts of the case which was there being considered and having regard to the absence of any procedural provisions in s. 10, the issuing justice may be wise or perhaps required to give consideration to the steps contemplated by Lockhart J [in Arno], but I see no requirement in the [1958] Act or regulations going to validity of the warrant which would lead to such a conclusion; and in my opinion it would place an almost intolerable burden upon the issuing justice in any particular case. Moreover it would also put the constable executing the warrant in the unenviable position of having a duty to perform, and not knowing in any particular case whether perhaps his warrant of authority was invalid, thus leaving him open to action for trespass. I do not see judicial legislation of the sort apparently envisaged to be necessary in order to reconcile the provisions of s. 10 of the Commonwealth Crimes Act 1914 with a fundamental common law principle of legal professional privilege, as being appropriate in any way to the provisions of s. 465 of the Crimes Act.
I find myself, in any event, unable with respect to agree with Lockhart J that a warrant is bad, because it fails somewhere to state the matters relating to legal professional privilege to which he referred. I do not accept that such a warrant fails to disclose jurisdiction on the face of the warrant.
In the same case, Jackson J. did not think it was open to say, at that stage of proceedings when issues of professional privilege had yet to be determined, that the warrant was bad on its face, because it referred to documents which might ultimately be held to be the subject of legal professional privilege: 65 ALR., at pp. 145-6.” (emphasis added).
See also: (1) Croft v Jumeau,[40] where Jenkinson J declined to follow Lockhart J in Arno and held[41] that:
“The question whether the circumstances relating to legal professional privilege may result in a legal requirement, failure to comply with which entails invalidity, that a reference to that subject appear on the warrant itself by way of endorsement is a narrow one…. In my opinion, it should be answered in the negative.”
and
(2) R v Colvin; Ex p. Merrick,[42] in which Osler J said[43]:
“There can be no sure way of classifying the various types of material in advance and, in any event it must be remembered that the rule [as to solicitor-client privilege] is a rule of evidence, not a rule of property. I would not be prepared, therefore, to quash a warrant respecting material which there were reasonable grounds to believe might afford evidence with respect to the commission of an offence simply because the possibility existed that such material might be covered by the solicitor-client privilege.”
Although the Supreme Court of Canada has subsequently pointed out[44] that at the time of Colvin, solicitor-client privilege had not yet evolved into a substantive principle, the case remains authority for the proposition that a warrant will not be quashed simply because the material which is the subject of a proposed search might be covered by privilege[45].
82. In his judgment in the present case, Saunders J referred to a number of Canadian decisions, none of which has been canvassed in the course of this appeal. Saunders J was of the view that “the need for conditions in Canada, the absence of which will render [the] warrant invalid, arises from specific provisions in Canadian legislation requiring protection of [legal professional privilege]”.[46] I am not convinced that that suggested rationale is correct in respect of all the cited Canadian cases but, be that as it may, I will refer briefly to them:
(1) Descouteaux, above, was primarily concerned with the circumstances in which the confidentiality of communications between solicitor and client may be raised, in particular whether the rule is merely one of evidence or, in addition, a substantive rule. Lamer J was of the opinion that in cases in which it was proposed to search the offices of lawyers, where it was shown that there was no reasonable alternative source of obtaining the information, the issuing justice of the peace was obliged to set out procedures for the execution of the warrant that reconciled “protection of the interests this right [of confidentiality] is seeking to promote with protection of those the search power is seeking to promote, and limit the breach of this fundamental right to what is strictly inevitable.”[47]
(2) Descouteaux was followed by the enactment of s. 488.1 of the Criminal Code, to replace guidelines issued by the Court for examining and for the seizure of material in the possession of a lawyer with statutory requirements. The section was not concerned with the process for authorizing a search but rather with the mode of its execution[48] but was struck down by the Supreme Court in Lavallee, Rackel & Heintz v Canada[49] as infringing s. 8 of the Canadian Charter of Rights and Freedoms.[50]
(3) The Court provided general principles to govern searches of law offices to abide the re-enactment of legislation. It re-affirmed the principles emphasized by Lamer J in Descouteaux that “solicitor-client privilege must only be impaired if necessary and, even then, minimally.”[51]
(4) In Maranda v Richer[52], the Supreme Court held that a search and seizure executed at a lawyer’s office pursuant to a warrant was unreasonable and abusive because the magistrate had issued the warrant when there were other sources through which some of the material could reasonably have been obtained, because the magistrate had failed to place minimizing conditions on the execution of the warrant and because the lawyer has not been contacted before execution of the warrant.
83. The case which influenced Saunders J most in his conclusions as to the procedures to be undertaken on an application for a search warrant and the conditions to be imposed upon it was A Firm of Solicitors v District Court of New Zealand.[53] The decision turned primarily on the fact that there was material non-disclosure in the application for the warrant, that the warrant was lacking in sufficient specificity and that there was removal of computer hard drives for the purpose of cloning, an exercise which was bound to reveal privileged information. Guidance was given for the conduct of future searches where privilege was an issue in the course of which it was said by the court that “there will be a need for extensive conditions to ensure the protection of privileged material under [the relevant statutory provision].”[54] It was, however, not a case which decided that absent specific conditions on the face of the warrant designed to protect legal professional privilege where there was to be a search of solicitors’ premises, the warrant was invalid.
Analysis
84. The question whether ICACO requires a magistrate to impose specific conditions in the case of a warrant to search solicitor’s premises and, if so, whether the failure to do so renders the warrant invalid, is a question of statutory construction.
85. The statutory provision with which we are concerned does not prescribe any form for a warrant under s. 10B of ICACO. As a matter of necessary implication, the warrant must contain the details to which the statutory provision itself refers. In this case that means that the warrant must be directed at an officer of the Commission appointed under s. 8 of ICACO and must show, on its face, that the magistrate, before issuing it, was satisfied by information on oath that there was reason to believe that there was in premises material which contained evidence of the commission of an offence or offences referred to in s. 10 of ICACO and whom it is that he has authorized to enter and search the premises.
86. Beyond that it is well established by the authorities to which reference has been made that the warrant must clearly identify the place to be searched and sufficiently indicate the articles which are sought and also the offence in respect of which the warrant is issued, so that, for example, merely to specify “offences referred to in section 10” will inevitably be too broad.
87. Any further requirement is one that would have to be discerned by implication. To justify an implication, courts regularly ask whether the implication is ‘necessary’ or ‘clear’ or ‘obvious’, a test that has been criticized as too narrow by Mr Bennion who prefers the adjective ‘proper’.[55]
88. It seems to me that to read an implication into s. 10B which requires, as a condition precedent to validity of the warrant, the imposition of conditions for the execution of a search is impermissibly to transform that which is thought desirable into legislative intention.
89. To infer such an intention from the provisions of the Ordinance would necessarily suppose the imposition of conditions precedent to a search but not to seizure, since the section gives the magistrate no jurisdiction to address the seizure. It makes little sense, in my judgment, to suppose a legislative intention to provide such procedures for the search for material but none for the protection of material once found.
90. I have earlier provided an indication of some other respects in which the conditions suggested by Saunders J were unsatisfactory, which in itself illustrates the room for argument, case-by-case, about the validity of a warrant because of suggested inadequacies in the conditions imposed.
91. If there is an implication, how far does it extend? Does it extend only to proposed searches of the offices of solicitors and the chambers of counsel? Or does it also extend to searches of banks and other institutions who have in-house counsel? Or do we say that it extends to any circumstances in which there is reasonable cause to believe that there are likely to be documents covered by legal professional privilege; though that is not the way the argument has been put? Uncertainties of this kind seem to me to constitute too imprecise a basis upon which to imply the requirement contended for. I agree in this respect with the sentiment expressed by Murphy J in Allitt, above, that the magistrate may well in a particular case have to give consideration to the imposition of conditions but that there is no requirement for such conditions in the statutory provision with which we are concerned going to the validity of the warrant.
Conclusion
92. For these reasons, I find that the judge below erred in holding that a search warrant issued under s. 10B of ICACO authorizing search of a solicitor’s office is unlawfully issued if conditions designed to protect legal professional privilege are not endorsed on the warrant and accordingly that he erred in deciding that the warrant issued in this case was invalid.
93. This conclusion is not to be taken as undermining the importance of the exercise entrusted to a magistrate when faced with an application for a search warrant, whether under this statutory provision or any other that does not make specific provision for protection of legal professional privilege in the course of search and seizure. I would hope that the importance of the issues raised by the spectre of searches at solicitors’ premises will soon be recognized as sufficient to justify legislation or protocols, where legislation is not already provided.
94. In the meantime, I would emphasize that:
(1) Any officer who seeks a warrant under s. 10 is duty bound to disclose to the magistrate to whom the application is made such information as will be material to the magistrate's decision. That clearly includes circumstances giving rise to reasonable cause to believe that the premises to be searched are likely to contain material covered by legal professional privilege or in respect of which a claim to privilege may be made. Failure to make material disclosure will render the warrant liable to be quashed and any search conducted pursuant to the warrant unlawful.
(2) A warrant may not be issued to search for (or to seize) material that is known to be privileged. On the other hand, the fact that material sought might be privileged does not preclude the issue of a warrant which authorizes a search for such material.
(3) Any magistrate to whom an application is made for a warrant which will authorize a search of solicitor’s premises is duty bound to examine the application with particular vigilance and to satisfy himself that sufficient safeguards will be in place to protect privileged material until such time as claims are determined. He has a discretion to impose conditions upon the execution of a search, a discretion which must however be exercised with considerable care, with due regard to the fact that he may not be well placed to foresee what may be revealed by the search or what the exigencies of the moment may demand. He may on the other hand refuse to issue a warrant unless satisfied by evidence placed before him, and undertakings given (which should be recorded by the magistrate), that sufficient safeguards will be in place.
The cross-appeal in CACV 272 of 2008
95. In the present appeal, there is a respondent’s notice by which the first applicant challenges the judge’s decision that although the warrant was unlawful, the respondent could nonetheless retain the material seized from the applicant. There is also a complaint in the respondent’s notice as to the order for costs made in the court below, namely, that there be no order as to costs. Since the premise for the respondent’s notice, namely, that the warrant was unlawful, falls away, it seems to me that this cross-appeal should be dismissed, although in my judgment it would have succeeded if the premise were correct. Had the judge been correct in holding the warrant to be invalid, it would have been inconsistent to withhold an order of certiorari to quash it.
The cross-appeal in CACV 4 of 2008
96. In our judgment in the first appeal, we referred[56] to a cross-appeal which we adjourned to await the determination of the issues that thereafter remained outstanding in the judicial review. That cross-appeal is now revived.
97. The cross-appeal relates to documents, to which we have earlier referred[57], retrieved by the solicitors from their warehouse in Shatin and handed over to the ICAC officers at the solicitors’ premises. The contention is that the officers had no authority to seize and retain the documents and that they are liable to be returned to the applicants. This is because, so it is argued, if the warrant is unlawful, the ICAC officers were on the solicitor’s premises as trespassers and the legality of a seizure purportedly effected under s. 10C (1) (c) of ICACO by a properly authorized ICAC officer must depend upon the legality of events leading up to that seizure. Given the conclusion that the warrant is lawful, this cross-appeal must also be dismissed.
Result
98. Accordingly, I would allow this appeal; set aside the declaration made by Saunders J on 7 August 2008 that the warrant was unlawfully issued as well as the orders as to damages and costs; dismiss the cross-appeals; and make a costs order nisi that the costs of this appeal and of the cross-appeals be to the respondent, to be taxed if not agreed.
99. There remains only the resolution of the claim for legal professional privilege which Saunders J has reserved to himself. I trust that resolution of that issue will proceed expeditiously. I feel bound to suggest that it would have been better had the judge determined all issues at the first hearing of the applications for judicial review. We now find ourselves in the position that the search warrant was issued more than two years ago and it has taken two hearings in the Court of First Instance and two appeals to reach this stage.
Hon A Cheung J:
100. I agree.
Hon Wright J:
101. I agree.
Hon Stock VP:
102. Accordingly:
(1) the appeal is allowed;
(2) the declaration that the warrant was unlawfully issued is set aside;
(3) the orders as to damages and costs below are set aside;
(4) the cross-appeals are dismissed; and
(5) there will be a costs order nisi that the costs of the first and second applicants’ application for judicial review and of this appeal and of the cross-appeals be to the respondent, to be taxed if not agreed.
103. Given our conclusions, it seems that a further order should be made dismissing the application for judicial review (with consequential orders as to the costs of the application) but we have not been addressed on the impact of such an order on the jurisdiction of the court below to determine whether the documents are or are not covered by legal professional privilege. We shall give counsel an opportunity to address us in this connection.
(Frank Stock)
Vice-President | (Andrew Cheung)
Judge of the Court of First Instance | (A.R. Wright)
Judge of the Court of First Instance |
Mr Philip Dykes, SC and Mr Hectar Pun instructed by Messrs Philip K.H. Wong, Kennedy Y.H. Wong & Co. for the 1st Applicant
Mr Gerard McCoy, SC, Mr Alex Lee, SADPP and Ms Betty Fu, PP of the Department of Justice, for the Respondent
[1] Philip KH Wong, Kennedy KH Wong & Co. v Commissioner of Independent Commission Against Corruption [2008] 3 HKLRD 565
[2] [2008] 5 HKLRD 351
[3] paras 59 and 60.
[4] It has been said that this includes abrogation by necessary implication; see R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner [2002] UKHL 21 para 8, and The Law of Professional-Client Confidentiality Pattenden (2003) para 16.13-16.14, pp 542-545.
[5] [1994] 2 HKC 363
[6] [2002] 4 HKC 579
[7] Contrast for example, s. 12 of the Mutual Legal Assistance in Criminal Matters Ordinance, Cap. 525.
[8] Some legislation that authorizes searches for and seizure of material makes provision for claims of legal professional privilege; for example, O 116 of the Rules of the High Court provides specific procedure for claims of legal professional privilege where a court has made orders facilitating investigations under the Organized and Serious Crimes Ordinance, Cap. 455. Practice Direction 11.2 specifies procedure to be followed where a claim for privilege is made in relation to material sought to be seized pursuant to an Anton Piller Order.
[9] atp 430.
[10] David Feldman ‘The LawRelating toEntry, Search & Seizure’ 1986, para 4.08.
[11] Wigmore on Evidence 1961 ed., para 2290.
[12] [2001] SCC 14.
[13] [1995] 4 All ER 526, 541.
[14] [1977] 1 WLR 1371 at p 1374G.
[15]< i>The Law Relating to Entry, Search & Seizure above, para. 4.62, p. 94.
[16] Bribery and Corruption Law in Hong Kong p.431.
[17] For a review of the approach in this regard in different jurisdictions see The Law Relating to Entry, Search and Seizure paras 4.69-4.72, pp 97-98. See also Pattenden (2003) The Law of Professional-Client Confidentiality paras 16.10 et seq.
[18] (2005) 8 HKCFAR 337 at paras 36 and 40, per Bokhary PJ.
[19] Descouteaux v Mierzwinski (1982) 141 DLR (3rd) 590 at 615; where the question is also discussed whether there exists a discretion in the magistrate to refuse to issue a search warrant or to impose terms upon its execution.
[20] See, for example, Calver v District Court at Palmerston North (No. 1)(2004) 21 CRNZ 371;and Lavallee, Rackel & Heintz v Canada (2002) 167 CCC 1 at p 18 para [15].
[21] [1994] 3 NZLR 450 at p. 467, cited with approval in Apple Daily v Commissioner of the Independent Commission Against Corruption [2000] 1 HKC 295 at p. 318.
[22] [1998] AC 351.
[23] at p. 364C.
[24] at p. 365E-F.
[25] [2000] 1 HKC 295.
[26] [1980] AC 952.
[27] The Law Relating to Entry, Search & Seizure (1986) para 5.02, p. 129; cited in part by Lord Hoffman in Williams at p. 364.
[28] at para 5.05, p. 131.
[29] para 5.31, p. 144.
[30] [1994] 2 HKC 363; see para 41 above.
[31] at p. 373 D-F.
[32] [1990] 1 HKLR 154.
[33] at p. 162G.
[34] at p.162 F-G.
[35] at pp.372H to 373C.
[36] [1988] V.R. 621.
[37] (1983) 153 CLR 52.
[38] (1986) 65 ALR 125.
[39] pp. 629-630.
[40] (1990) 22 FCR 276.
[41] at p. 289.
[42] (1970) 1 C.C.C. (2d)8.
[43] at p.13.
[44] Lavallee, Rackel & Heintz v Canada (2002) 167 CCC 1 at 16.
[45] Fontana & Keeshan The Law of Search & Seizure in Canada 7th ed., p. 303.
[46] judgment below at para 47.
[47] at p. 617.
[48] Lavallee, Rackel & Heintz v Canada (2002) 167 CCC (3d) 1 at 23.
[49] (2002) 167 CCC (3d) 1.
[50] ‘8. Everyone has the right to be secured against unreasonable search or seizure.’
[51] at p. 22, para [20].
[52] (2003) 178 CCC (3d) 321.
[53] [2006] 1 NZLR 586.
[54] at p. 615, para [138].
[55] Bennion on Statutory Interpretation, 4th ed., section 173.