KEEN LLOYD HOLDINGS LTD AND OTHERS v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER

HCAL 113/2012 and
HCAL 82/2013

(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 113 OF 2012

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 82 OF 2013

____________

____________

(Consolidated by order of the Honourable Mr Justice McWalters
dated the 22^nd day of May 2013)

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D E C I S I O N

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Introduction

1.  On 23 December 2014 I handed down my judgment in this case.  In that judgment I declared that certain search warrants, not being executed within a reasonable time from the date of their issue, had lapsed by the date of their execution and I quashed them.

2.  I also declared that section 21(1)(a) of the Import and Export Ordinance, Cap 60 (“IEO”) is inconsistent with Article 29 of the Basic Law and is thus unconstitutional  and that as a consequence any seizures effected subsequent upon an entry and search of premises made pursuant to section 21(1)(a) were effected in the course of a trespassory entry and search and must be returned to the persons from whom they were seized.

3.  Some of the materials seized under the warrants that were quashed for late execution or that were seized subsequent upon an entry and search conducted pursuant to section 21(1)(a) of the IEO, were copied to Mainland Customs.  The legality of the Hong Kong Customs and Excise Department (“C&E”) so doing was also challenged.  Although, in view of my declarations in respect of the validity of the warrants and the constitutionality of section 21(1)(a), it was not necessary for me to resolve this issue I expressed a view on how I would have resolved it in case either of my declarations might be found to be wrong. I was of the view that in providing copies to Mainland Customs C&E had acted unlawfully and I ordered the 1^st respondent to use its best endeavours to recover all the materials it had provided to its Mainland counterpart.

4.  By notice dated 20 January 2015 the respondents indicated an intention to appeal my judgment.

5.  On 16 April 2014 I handed down a supplemental judgment refusing an application by the respondents to vary my original judgment by replacing my declaration of the unconstitutionality of section 21(1)(a) with one of two alternative remedial interpretations proposed by them.

6.  There are now two applications brought before me by way of summons.  One is an application by the applicants for the respondents to:

(i) return all seizures illegally made within 14 days;

(ii) return 10 containers alleged by the applicants to have been seized under the authority of one of the quashed warrants; and

(iii) produce evidence to show that the 1^st respondent has used its best endeavours to retrieve all copies of seizures that its provided to Mainland Customs.

7.  The second application is an application by the respondents for a stay of my orders pending the determination of its appeal of my judgment.   

8.  I shall deal with the stay application summons first.

Principles relating to a stay

9.  The principles relating to a stay application were set out by Ma J, as he then was, in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.  The starting point is to recognize, as counsel for the applicants emphasizes, that the Rules of the High Court (“RHC”) specifically provide in RHC O 59, r 13(1) that an appeal shall not operate as a stay of execution.  The consequence of this is, as Ma J explained at page 87, paragraph 7 of his judgment:

“In other words unless the defendant can justify a stay of execution, one will not be ordered. The practice of the court is that justification can be demonstrated only if good reasons exist.”

10.  The two points that flow from this comment on which the applicant’s rely is that a stay has to be justified by “good reasons” before it will be granted and the burden is on the party seeking the stay to persuade the court that such “good reasons” exist.  As to what will constitute good reasons Ma J went on to say in the following paragraph:

“Good reason can exist in a variety of forms. It will be wrong to set out any exhaustive definition of what would constitute good reasons, but, commonly, reference is made to factors such as whether the absence (or existence) of a stay would render an appeal nugatory (thus bringing into focus the relative prejudice that may be caused to the appellant and to the respondent by a stay of execution), and the merits of the appeal.”

11.  In the present case the respondents rely on the merits of their appeal and also on an assertion that the absence of a stay would render their appeal nugatory.

12.  On the approach a judge should take to the question of the merits of the appeal Ma J had this to say:

“(5) How relevant then is the court’s consideration of the merits or strength of the appeal? In my view, while it is impractical and even undesirable for the court in dealing with an application for a stay of execution, to go deeply into the merits and strengths of an appeal, it must however form a preliminary view of these aspects. This I believe to be an inevitable consequence of the starting point I have earlier mentioned in referring to Order 59, rule 13(1).

(6) The existence of merely an arguable appeal cannot by itself amount to sufficient reason to justify a stay. It can be put this way : the existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted.

(7) Conversely, however, the existence of a strong appeal or a strong likelihood that the appeal would succeed, will usually by itself enable a stay to be granted because this would constitute a good reason for a stay …

(8) In most cases, the court will not be dealing with the extreme situations I have referred to.  Often, it will be faced with simply the existence of an arguable appeal.  Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified.  The demonstration of an appeal being rendered nugatory is one example, albeit a common one.  Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted, the court may require no more than the existence of an arguable appeal.  Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require, in the absence of any other factors, the appellant to demonstrate strong grounds of appeal or a strong likelihood of success.”

13.  On a claim that not granting a stay would render the appeal nugatory Ma J said:

“(2) That said, whatever the nature of the order or judgment appealed from, the court will still require evidence as to why an appeal will be rendered nugatory in the event of a stay not being granted. The requisite quality of the evidence will, of course, depend on the nature of the order or judgment appealed against.

(3) … A bare assertion is unlikely to meet with much sympathy where more substantial evidence is available …

(4) An appeal being rendered nugatory does not mean in all cases that without a stay, the appellant faces financial ruin or the loss of all his property.  Demonstrating that the failure to grant a stay would have a serious deleterious effect is enough …”

14.  Mr Bell SC for the applicants argues that it is not enough for the party relying on a claim that without a stay the appeal would be rendered nugatory to show merely a risk of this eventuating; rather he has to show by credible evidence that it would eventuate ie a difference between “could” or “would”. I do not agree.  As Ma J noted in his judgment in the Star Play case, what the court is doing with an application for a stay is assessing the relative prejudices that could flow to the parties from a stay being granted or not being granted.  There may well be occasions when the prejudicial impact of the stay being or not being granted can be precisely and definitely known. Other times only the general nature of the prejudice might be ascertainable and of this prejudice it can only be said that there is a risk of it it eventuating.  The greater the risk, the greater the prejudice and vice versa. But just because it is only a risk rather than a certainty does not prevent it from constituting prejudice for the purpose of the application.

15.  Consideration must also be given to the position of the successful litigant and the impact that a stay would have on him as granting a stay has the effect of delaying the successful litigant from immediately enjoying the fruits of his success.  This may cause prejudice to this person.  Ma J said:

“(9) … It is important to stress that the court must not at any stage forget the position of the successful party. It is always relevant to consider the prejudice that would be caused to the successful party (the respondent in the appeal) in the event a stay is granted and if necessary, to impose conditions so as to minimise the prejudice caused to him. A fortiori, the court must consider any contention that the appeal would be rendered nugatory to him (in the event the appeal is dismissed) should a stay of execution be imposed.”

16.  The final step is to stand back and assess the strength of the good reasons advanced for the granting of a stay and balance them against the prejudice that will be caused to the successful party “but bearing in mind at all times the starting point that the successful party is not to be deprived of the fruits of his success.”[1]

The merits of the appeal

17.  The applicants submit that there are no merits in certain of the grounds of appeal and that in respect of others the grounds, though arguable, are very weak with little prospect of success.

18.  The respondents submit that their grounds of appeal are all arguable but recognize some may not be as strong as others.

19.  There are four grounds of appeal.  The first concerns whether or not, absent any legislative intention to the contrary, a search warrant has a finite life and must be executed within a reasonable time or whether it remains alive until such time as the circumstances underlying its grant may, in the opinion of the law enforcement officer responsible for it, have materially changed.  Allied with this ground is a further ground that I erred in finding that, given the lapse of time and the nature of the investigation, the warrants had not been executed within a reasonable time and had therefore lapsed.

20.  The third ground of appeal concerns the constitutionality of s 21(1)(a) and whether there was a lawful basis for the entry and search by C&E officers of the premises that were the subject of warrants 3,4 and 9. 

21.  The fourth ground of appeal relates to the provision by C&E to their Mainland counterparts of copies of the materials seized under the warrants. There are two parts to this ground of appeal.

22.  The first part of ground 4 asserts that I should have held that a law enforcement agent in Hong Kong is empowered to pass information derived from materials acquired under compulsive process to a law enforcement agent outside Hong Kong if such derived information would assist that external law enforcement agency to detect and/or investigate offences in its jurisdiction. The second part of this ground of appeal argues that a Hong Kong law enforcement agent is empowered to pass information derived from materials acquired under compulsive process to a law enforcement agent outside Hong Kong if, in so doing, the external law enforcement agent could assist the Hong Kong law enforcement agent to detect and/or investigate offences in Hong Kong.     

23.  In so far as any of the grounds of appeal rely on asserting that I erred in the findings of fact that I made then I regard such grounds as being weak with little prospect of success.  All the grounds in which there are legal arguments involved I regard as being at least arguable, although I  regard the legal arguments in Grounds 1 and 4 (i)  as being weak with very limited prospects of success.  I do not understand ground 4 (ii)  as I never ruled that, as a matter of law, a law enforcement agent could not provide information derived from materials acquired by compulsive process to third parties if it was necessary to do so in order to advance its investigation.  In fact I specifically found it could do this at paragraphs 160-161 of my judgment.

24.  I make these comments in the knowledge that ultimately it is for the Court of Appeal to determine the merits of the grounds and I only make them for the purposes of the stay application where I have to form a view of the merits of the appeal.  Having formed this view it is clear that the merits of the appeal are not sufficient, without more, for the purpose of providing good reasons to grant the stay application.  The respondents need more.  The only other good reason on which they rely is the strong likelihood of prejudice to the criminal investigation and imminent prosecution, through the destruction of evidence.  The likelihood of this occurring, it is said, would render the appeal nugatory.

Would the appeal be rendered nugatory if a stay was not granted?

25.  The only concern of the respondents is the loss of potential evidence to a future prosecution whose initiation they say is imminent.  Should they be compelled to return to the applicants the evidence that the respondents need to prosecute them, there is a high risk that this crucial evidence will no longer be available to the respondents should they succeed on the appeal.  This high risk would have the effect of rendering the successful appeal nugatory and therefore constitutes good reason for granting the stay.

26.  The applicants assert in reply that they need the originals of the documents for accounting and tax purposes, that they have already suffered prejudice from not having the originals available to them and they will continue to suffer prejudice should they still be denied them.

27.  There is also the question of whether the respondents need a stay in order to preserve the evidence.  A stay is being used simply as a mechanism that will enable the respondents to lawfully remain in possession of the materials they need for a prosecution.  This raises the question of whether there is any other means which would enable the respondents to legitimize their possession of these documents.  I can think of two.  The first is for the 1^st respondent to exercise the power under section 21(2)(a) of the IEO and have his officers reseize the materials. Because the materials are in his own premises he does not need an entry and search power in order to gain access to them.  The second means is to seek the assistance of the police by transforming the investigation into a joint C&E/Police investigation and having the police exercise their own powers to obtain a magistrate’s warrant to enable access to and seizure of the documents from C&E premises.

28.  In respect of the use of the section 21(2)(a) IEO power the respondents are concerned that it would be a rather artificial use of the power to use it to seize documents already in the C&E’s possession and it may give rise to satellite litigation.  Even though my judgment was not concerned with the propriety of the criminal investigation, or the sufficiency of the evidence to ground the issue of the warrants or to trigger the exercise of any warrantless power of entry and search, or the genuineness or reasonableness of any suspicion held by any C&E officer when exercising the section 21(2)(a) power, I can, nevertheless understand the desire of the respondents to avoid unnecessarily complicating this matter further.

29.  These concerns are less valid in respect of the second option of seeking the assistance of the police.  But this is a smuggling investigation on which the 1^st respondent has been working for many years and doing so in conjunction with his Mainland counterpart.  It would be wasteful of law enforcement resources to force, at this late stage, the involvement of the police. Although it may be an option lawfully available to the respondents and it may be an option that the 1^st respondent has to consider using at a future date, I do not see that it is a practical alternative and it is not, in my view, a reason for denying the respondents their application for a stay. 

The prejudice to the applicants

30.  The only prejudice to the applicants is not having available to them the original of those documents that were seized as hard copies as opposed to those printed from digitally stored data.  The applicants maintain that they need the originals but, on the evidence placed before me, I am not satisfied that they do.  Photocopies should suffice and if those photocopies need to be certified or verified in some way then I cannot see why that cannot be done.  I see no meaningful prejudice to the applicants should they be denied the fruits of their successful litigation. 

Conclusion

31.  In terms of the balancing exercise that I must perform vis‑à‑vis the parties, namely balancing the good reasons advanced by the respondents against the prejudice suffered by the applicants I conclude that the balance comes down firmly on the side of the respondents and for that reason alone I would grant the stay application.  But I think there is another factor which I can quite properly take into account and that is that this litigation involves matters of public law impacting upon the public interest.  The particular public interest at stake here is the public interest in ensuring that criminal conduct is properly investigated and those complicit in it are prosecuted and brought to justice.  It is not just the respondents who have an interest in the outcome of this investigation – the whole community has an interest in combating crime and seeing offenders prosecuted.  The public interest in the effective administration of the criminal justice system provides further reason for tilting the balance in favour of granting a stay.

32.  The respondents have identified the documents from all of those seized that they wish to retain for their future prosecution.  The stay order that I make therefore is a stay of my orders only insofar as they affect the seized materials as set out in the schedule prepared by the respondents which is Exhibit “LCWB-A11” to the 7^th affirmation of Lai Chi Wing Barry.

The applicants’ summons

33.  There are 3 matters sought by the applicants.  They all relate in one way or another to the return of the seized materials.  I shall deal firstly with the return of the 10 containers which is the second matter sought by the summons.

34.  The applicants maintain that the 10 containers were seized pursuant to the search warrant numbered 9 which was issued by a magistrate under section 22(2) of the IEO.  This warrant was conceded to be unlawfully issued as it related to commercial rather than domestic premises.  However, the entry and search could have been lawful under section 21(1)(a) had I not declared that provision unconstitutional.

35.  This issue is resolved by firstly addressing some factual matters.  The applicants assert that the containers were seized from the applicants’ berth by which they mean that the containers were on the dock.  The applicants further assert that entry to the berth in order to search it was achieved by the unlawfully issued warrant.

36.  The respondents submit that by looking at the face of the warrant it is clear that it is directed at the applicants’ office premises located on the dock.  The respondents further say that the 1^st respondent maintains his own office premises on the dock and that his officers have a lawful right to come and go from the dock, and enter upon any part of the dock, for the purpose of performing their duties.  They do not need any warrant to do so. Finally, the respondents assert, by evidence, that the 10 containers were seized from the applicants’ vessel and not from the dock in the area of their vessel’s berth.  Hence, the respondents say the 10 containers were not seized consequent upon an entry and search effected under any of the warrants and so they are outside of the ambit of the judicial review. 

37.  The only evidence adduced by the applicants is that there were a number of containers stored at or near their berths numbered 6 and 7 but they do not go so far as saying that the 10 seized containers were these or amongst these containers.

38.  On the other hand the respondents assert through the affirmations of Acting Superintendent Lai that search warrant number 9 was used to effect the entry and search of only the container office of Yinggao at berth 6 and 7 of the River Trade Terminal.  The 7^th applicant witnessed this search and acknowledged the seizure of a number of documents from the container office.  On the same day C&E officers boarded Yinggao 331 and Yinggao 332.  The 10 containers were seized from both these vessels pursuant to the power in section 21(2)(a) of the IEO.

39.  I find as a fact that the containers were seized from the vessels Yinggao 331 and Yinggao 332 and I further find that their seizure was quite unrelated to search warrant number 9 and that the officers who boarded the vessels did not access their berths by relying upon the right of entry and search granted to them by search warrant number 9.  I therefore refuse the order sought by the applicants’ summons in respect of the 10 containers.

40.  The other orders sought concern the return of the seizures and the retrieval of the materials copied to C&E’s Mainland counterparts.

41.  In respect of these issues the following dates set the scene:

12 January 2012			Dates of seizures
19 January 2012
31 August 2012			Leave granted in HCAL113/2012
22 May 2013			Leave granted in HCAL82/2013
26 August 2013			Hearing of the applications commence
23 January 2014			Hearing of the applications conclude
23 December 2014			Judgment handed down

42.  The 1^st respondent has been in possession of the seizures for over three years.  That is more than ample time to sort out what is relevant to his investigation and that has now been done.  But it is worth noting that prior to my judgment being delivered nothing had been returned to any of the applicants notwithstanding that well before then much of the seizures must have been known to have no relevance or value to the investigation.  The common law allows a law enforcement agency executing a search warrant against a large volume of material to take away the whole with a view to subsequently conducting a filtering exercise of it.[2] But the corollary of this is that as soon as the law enforcement agency becomes aware that it has seized irrelevant material it is obliged to return it.[3]  I cannot help but have the impression that some degree of urgency has only entered the 1^st respondent’s actions since the handing down of my judgment. 

43.  Through the affirmation of Acting Superintendent Lai the 1^st respondent has explained:

“After the handing down of Judgment, a team of officers, subject to other operational commitments, was deployed to handle the return of seizures pursuant to the judgment.”

44.  I am not at all impressed by this statement. It is not only vague as to the number of officers, and their rank, allocated to the task, it suggests that no priority was given to complying with the court’s order.  With such an attitude it is hardly surprising that so little has been achieved after such a long lapse of time.  This is completely unacceptable.  It is not for the 1^st respondent to decide how long he shall take to comply with the court’s order nor shall he impede compliance with it by limiting the number of staff needed for the task or limiting when or how much time they may work on this task. 

45.  I grant the order sought by the applicants and I now order that there must be full compliance with the court’s order within 14 days of the date of this judgment.

46.  The final order that is sought by the applicants’ summons is for an order that:

“The 1^st Respondent do produce evidence to show that he has used his best endeavours to retrieve all copies of the seizures that the Customs and Excise Department had provided to others within 7 days from the date of the Order or other such time as the Court may think fit.”

47.  In response to this application the 1^st respondent has explained what efforts he has made to retrieve the copy documents that he unlawfully provided to his Mainland counterpart.  This explanation is set out in the 6^th and 8^th affirmations of Acting Superintendent Lai.  These efforts amount to two meetings between C&E officers and their Mainland counterpart on 8 January 2015 and 5 February 2015 and three letters from C&E to their Mainland counterpart on 28 January, 17 February and 24 March 2015.  As these affirmations do not provide much in the way of detail of the meetings and as the letters are so brief.  I shall set out the contents in full.

Meeting on 8 January 2015

48.  In his 6^th affirmation Mr Lai says:

“Since the handing down of the Judgment, the PRC Customs was duly informed of the Judgment and two meetings were held between the officers from CED and the PRC Customs on the retrieval of the copy seizures provided to the PRC Customs.”

49.  In his 8^th affirmation he says:

“Two meetings in 8 January and 5 February 2015 respectively were also held with the officers from the Mainland Customs for explanation of the Order dated 23 December 2014 made in these proceedings and also for discussions on the return of the copy seizures to the CED.”

Letter of 28 January 2015

50.  This letter states:

“Pursuant to one of the orders made by the High Court in Hong Kong in the Judicial Review proceedings in relation to ‘128’ project, we are required to retrieve the intelligence materials which have been handed over to the Mainland. We gratefully wish relevant arrangements could be made with your assistance.

Thank you very much for your kind attention.”

Meeting on 5 Febuary 2015

51.  The only relevant passages in the affirmations are those already quoted above in respect of the meeting on 8 February 2015.

Letter of 17 February 2015

52.  This letter states:

“ We have issued a letter on 28 January 2015 requesting your kind assistance in retrieving the intelligence materials of ‘1.28 Project’ which have been handed over to the Mainland. (We) hereby provide the details of those intelligence materials in order to facilitate the arrangements.

Pursuant to the ‘Co-operative and Mutual Assistance Arrangement between Hong Kong Customs and Excise Department and the General Administration of Customs’, we had handed over some copies of documents and computer harddisks between January 2012 and June 2012 (please refer to Annex 1 for details) for the investigation of ‘1.28’ project in Hong Kong. We gratefully wish those intelligence materials could be returned as early as possible in order to comply with one of the orders made by the High Court in Hong Kong.

Thank you very much for your kind attention.”

53.  The details of the intelligence materials provided was in the form of a schedule annexed to this letter. 

Letter of 24 March 2015

54.  This letter states:

“ As per our letter to your Sub-administration on 17 February (2015) [our ref.: GD15-021] concerning the return of intelligence materials, (we) would be most grateful if arrangements could be made as soon as possible. We are well prepared to retrieve the materials concerned at any time.

Where necessary, please contact our officer in-charge of the case … to work out detailed arrangements.

Thank you very much for your kind attention.”

55.  What stands out from all these letters and of what I have been told transpired at these meetings is that the 1^st respondent has given priority to its desire not to offend its Mainland counterpart at the expense of complying with the court’s order that he use his best endeavours to retrieve the materials he unlawfully allowed to leave his possession.  There seems to be a total failure to comprehend the importance of the issues at stake, namely property and privacy rights in respect of the seized materials and the illegality involved in C&E’s conduct in providing them to persons not authorized by law to receive them. 

56.  I am not satisfied that the 1^st respondent has made his best endeavours to retrieve the materials and I direct him to renew his efforts with greater vigour and urgency in carrying out my order.

Costs

57.  In respect of the costs of the summonses I make the following ordersnisi:

(i) In respect of the respondents’ summons I award the costs of the summons to the respondents.

(ii) In respect of the applicants’ summons, the applicants have succeeded on two of the three matters that they sought and so I award them the costs of 70% of their summons.  I award the applicants their costs on an indemnity basis and I do so to mark my disapproval of the 1^st respondent’s dilatory conduct in complying with the court’s orders.

[1]Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at page 89, paragraph 10.

[2] See Apple Daily Ltd v Commr of the ICAC (No.2) [2000] 1 HKLRD 647 at 670D-F.

[3] This may be subject to the exception of computers where the hard disk may properly be viewed as not analogous to a filing cabinet containing both relevant and irrelevant material but rather to a single object or thing such as a diary; see R (Faisaltex Ltd) v Crown Court at Preston [2009] 1 WLR 1687.

HCAL 113/2012 and
HCAL 82/2013
(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 113 OF 2012

____________

____________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 82 OF 2013

_______________

JUDGMENT
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Introduction

1. In response to my judgment dated 23 December 2014 the respondents have applied to vary one of the orders of relief I made, namely, the declaration I made in paragraph 184(iii) of my judgment that section 21(1)(a) of the Import and Export Ordinance, Cap 60 (“IEO”) is unconstitutional.  In its place the respondents seek a remedial interpretation that will preserve the legislature’s intention to provide wide powers of search to officers of the Customs and Excise Service but which will ensure that those powers are compliant with the Bill of Rights (BOR) and the Basic Law.

Should the application now be entertained?

2. The parties are in agreement that, as a matter of law, a judge can revisit his judgment and amend it as long as the order has not been sealed, after which time he would be functus officio.

3. A discussion of the law on this issue can be found in the judgment of the Court of Appeal in Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533.  There the court referred to English authorities which discussed the rationale for the power and how it should be exercised.  It must be exercised judicially and not capriciously and only where extraordinary or exceptional circumstances demanded recourse to it in the interests of justice.  In considering whether recourse should he had to the power the court had to balance the need for certainty and finality in a court’s decision with the duty of the court to do justice between the parties and avert an unnecessary appeal.

4. There is no special meaning to be given to “exceptional circumstances”. It is not a term of art and simply means strong reasons.  As Rix J said in Noga v Abacha [2001] 3 All ER 513 at 526d the formula of exceptional circumstances must not be allowed to become a straitjacket of it its own and the interests of justice remain the overriding consideration.  Rix J went on to say that an exceptional case does not have to be uniquely special and he favoured the term “strong reasons” as an acceptable alternative.  In accepting this term our Court of Appeal in the Sun Jianqiang case said at page 543I-544A:

“Examples of strong reasons included a plain mistake on the part of the court, a failure of the parties to draw to the court’s attention a fact or point of law that was plainly relevant, or discovery of new facts subsequent to the judgment being given. These were said not to be exhaustive.”

5. In the recent United Kingdom Supreme Court decision of In re L (Children) [2013] 1 WLR 634 Baroness Hale of Richmond JSC said that in deciding whether to exercise this power the court should be guided by its overriding objective of dealing with the case before it justly.

6. In deciding whether to entertain the respondents’ application I take into account the fact that in the course of making his final submission on the application for judicial review, counsel for the respondents, Mr Robert Pang SC, did indicate that should the court be against him on the constitutionality of section 21(1)(a) of the IEO then he would wish a further opportunity to be heard on the form of relief the court should order.  I took note of his position and did not require him to complete, then and there, such submissions as he wished to advance on the issue of relief.  Implicitly, my conduct would have encouraged him to believe that he would be given a further opportunity to address me.  In these circumstances it seems to me it would not be just to now deny him that opportunity.

7. But there is, in my view, another matter relevant to the exercise of my discretion and that is the nature of the application the respondents seek to make.  It is an application for the court to remedially interpret the infringing legislation as an alternative to making a declaration of unconstitutionality. The reason the nature of the application is relevant to the exercise of my discretion is because the Court of Final Appeal has said in HKSAR v Lam Kwong Wai & anor (2006) 9 HKCFAR 574 that courts have a duty to consider the alternative of remedial interpretation before making a declaration of contravention.  At page 611B-D Sir Anthony Mason NPJ, in delivering a judgment with which all other members of the court agreed, said:

“The Court must proceed on the footing that the courts of the Region, including this Court, possess all necessary powers to deal with all manner of questions which may legitimately arise in connection with the interpretation and enforcement of the provisions of the Basic Law, including their impact on Hong Kong legislation. It follows that the implied powers of this Court include the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law‑consistent. Only in the event that such an interpretation is not possible, will the Court proceed to make a declaration of contravention, entailing unconstitutionality and invalidity.”

8. I would, therefore, be failing in my judicial duty if I did not consider the alternative of remedial interpretation.  To entertain the respondents’ application now not only provides procedural fairness to the respondents, it also prevents the court from falling into appellable error and averts an unnecessary appeal on this point.

9. For all these reasons I conclude that it would be just to entertain the respondents’ application and I exercise my discretion to reconsider what relief I should grant in respect of my finding of the unconstitutionality of section 21(1)(a) of the IEO.

The court’s approach to remedial interpretation

10. The rationale for employing the tool of remedial interpretation is that it enables the court to lessen the impact that its finding of contravention would otherwise have on the legislative process.  As was said by Sir Anthony Mason NPJ in Lam Kwong Wai, by upholding the legislation in an altered form rather than striking it down:

“… the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation.”

11. But courts must remember that their role is only to interpret legislation, not to amend it.  The enactment and amendment of legislation is the exclusive role of our Legislative Council.  The importance of not crossing the boundary line that separates interpretation from amendment when employing the tool of remedial interpretation was emphasized by Lord Nicholls of Birkenhead in his judgment in In re S (Care Order: Implementation of Care Plan) [2002] AC 291.  In this case he was discussing the use of remedial interpretation within the context of the provisions of the United Kingdom’s Human Rights Act.  At page 313E, paragraph 39 he spoke of the Act reserving the amendment of primary legislation to Parliament and by this means preserving parliamentary sovereignty.  He said:

“ The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts. The enactment of statutes, and the amendment of statutes are matters for Parliament.”

12. This important distinction between the different constitutional roles of legislature and judiciary must be borne in mind by courts when considering whether to remedially interpret contravening legislation.  Courts must, therefore, resist the temptation to allow a well intentioned desire to lessen the legislative consequences of their findings of contravention where to do so would result in it crossing the constitutional boundary.

13. But when is this boundary line crossed?  As Lord Nicholls noted at page 313F of the In re S case: “The greater the latitude with which courts construe documents, the less readily defined is the boundary.”

14. At one extreme is judicial interpretation which gives a section an effect quite different from that which the legislature intended; what Lord Bingham of Cornhill described in R (Anderson) v Home Secretary [2003] 1 AC 837 at 883, paragraph 30 as “judicial vandalism”.  Whilst a court may more readily recognize when it is being invited to embark on “judicial vandalism”, with anything less obvious than that the boundary line between robust interpretation and impermissible judicial creativity may be difficult to discern.

15. Attempts have been made by appellate courts to articulate a means of identifying the dividing line.  In Sheldrake v DPP [2005] 1 AC 264 Lord Bingham of Cornhill, in referring to different formulas of words that had been employed, said at page 304B-C:

“In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: ‘So far as it is possible to do so …’”

16. This passage was quoted by Sir Anthony Mason NPJ in the Lam Kwong Wai case and at page 608C of his judgment he said:

“I agree with Lord Bingham that they are insights but would emphasize that they are not prescriptions.”

17. At page 610 H-J of his judgment in Lam Kwong Wai, Sir Anthony provided his own “insight” when he said:

“… it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.” [Emphasis added.]

Again, at page 612A of his judgment, Sir Anthony repeated this formula, saying that the remedial interpretation on which the court settles must, so far as is possible, give effect to the legislative intention and do “no violence to fundamental or essential elements of the legislation.”

18. In a similar vein is the comment by Ribeiro PJ in HKSAR v Ng Po On (2008) 11 HKCFAR 91 where, at 109B, he said:

“ The Court recognizes that such remedial techniques necessarily have their limits. The Court cannot take up a curative measure which is so fundamentally at odds with the intent of the legislation in question that adoption of such a measure properly calls for legislative deliberation.”

19. A court will be at risk of doing violence to fundamental or essential elements of the legislation if its remedial interpretation involves a significant departure from a fundamental feature of the legislation as such an interpretation could have repercussions for the operation of the legislation that the court cannot anticipate.  This important point was made in the In re S case by Lord Nicholls when he said at page 313F-G, paragraph 40:

“… For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.”

20. Likewise, courts will also need to be wary of adopting a proposed remedial interpretation if there are a number of different routes by which the offending provisions can be made Basic Law compliant.  In such a situation it will be harder to assume that the remedial interpretation of the court would give effect to the legislature’s intention.  A choice between two or more alternatives may be a choice properly made by the legislature rather than the court.

21. Whatever formula of words the court employs to provide it with insight in the performance of its task, it is important to recognize that underlying the application of any of them is a requirement that the court have a clear understanding of the legislative context in which the offending provision resides.  This involves the court taking note not just of the social issue or area of government activity that the legislation addresses but also the means by which the legislature, through the drafting tools and concepts employed, has striven to achieve its goals in addressing the particular social issue or area of government activity.

22. Once the court has an accurate and complete appreciation of these matters it will be in a position to assess the impact of the proposed remedial interpretation and that it should do by standing back from the legislation and, with the benefit of objectivity that distance provides, consider the remedial interpretation that is sought within the context of the contravening legislation.  In Ghaidan v Godin-Mendoza [2004] 2 AC 557 at page 598G-H Lord Rodger of Earlsferry explained it in this way:

“In any given case, however, there may come a point where, standing back, the only proper conclusion is that the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation in a way that was compatible with the Convention right in question. In that event, the boundary line will have been crossed and only Parliament can effect the necessary change.”

23. This being my task, the starting point for me must be to obtain an accurate and complete understanding of the legislative context of which the proposed remedial interpretation will be a part.

The IEO search warrant regime

24. The IEO regulates a very important activity as cross-border commerce is the life blood of Hong Kong.  Part of that regulatory process mandates the Customs and Excise Service as the law enforcement agency responsible for enforcing the legislation and investigating any breaches of it.  It is clear from the provisions of the IEO that the legislature intended to confer wide powers of entry and search on the Customs and Excise Service.  These powers are both warrantless and warrant based.

25. The distinction the legislation creates between the warrantless power and the warrant based power is founded upon the nature of the premises to be searched.  Thus, by section 20(1)(a) a warrantless power is given in respect of any premises or place registered under the IEO or occupied by a person who, inter alia, has been registered under the IEO.[1] This particular warrantless power is not directly relevant to the judicial review but it does form part of the legislative context.  When read with sections 21 and 22, it becomes apparent that the entry and search regime enacted by the legislature reflects a decision by it that whether the entry and search power, when used against premises, shall be warrantless or warrant based will depend upon the nature of the premises to be searched.

26. Like section 20, section 21 also includes a warrantless power to enter and search any premises, place, vessel, aircraft or vehicle.  Premises and places may be entered and searched and vessels, aircraft and vehicles may be stopped, boarded, removed, detained and searched.[2]  But then, section 22 comes into play and it has the effect of carving out from the section 21 warrantless power, those premises or places which fall within the definition of “domestic premises”.  For these premises or places a magistrate’s warrant is needed.  The reason section 22 also carves out certain places is because the definition of “domestic premises” is not just confined to “premises” falling within the definition but also “places”.  The definition is as follows:

“‘domestic premises’ means any premises or place used exclusively for residential purposes and constituting a separate household unit.” [Emphasis added]

There is no definition of “place” in the IEO.

27. However, there is yet another warrantless entry and search power and it is contained in section 21(3).  This sub-section creates a warrantless power, subject to section 22, to enter and search “any premises or place connected with the manufacture, processing, production, storage, distribution or sale of any article in respect of which a licence or validated production notification has been issued or a production notification has been lodged under this Ordinance.” Because it is drafted as being subject to section 22 it does not include domestic premises.  Clearly the reason why this power is warrantless is because of the specific character of the premises to which it relates.

28. There are, therefore, four different entry and search powers of premises.  They are:

(i) an entry and search power under section 20(1)(a) of premises, other than domestic premises, registered under the IEO;

(ii) an entry and search power under section 21(1)(a) of premises, other than domestic premises;

(iii) an entry and search power under section 21(3) of premises other than domestic premises connected with articles in respect of which a license has been issued;

(iv) domestic premises under section 22.

The powers described in (i) to (iii) above are all warrantless. Only the power described in (iv) above is warrant based.  Furthermore whether the power is warrantless or warrant based depends upon whether the premises are domestic premises.

29. Also relevant to the remedial interpretation sought is the fact that the existing IEO entry and search regime caters to the situation where circumstances may require greater expedition in searching a domestic premises than the process of obtaining a magistrate’s warrant would otherwise allow.  Thus section 22(1)(b), as read with section 22(3)(b), empowers a member of the Customs  and Exercise Service of or above the rank of Assistant Superintendent to authorize the entry and search of domestic premises if he reasonably suspects that, unless the premises are entered and searched immediately, the item subject to seizure under section 21 which is reasonably suspected to be present in the domestic premises, is likely to be removed from the premises.

The constitutionality issue

30. In my judgment I was only concerned with the constitutionality of section 21(1)(a), that is, the warrantless power to enter and search premises other than domestic premises.  I concluded that in order to be constitutional this power should be confined to those situations when it is not practicable to obtain a warrant from a person acting judicially.  The corollary of this is that when it is practicable to obtain a warrant from a person acting judicially then that must be done.  The effect of my ruling is to require that the section 21(1)(a) power, in so far as it relates to premises, should become a judicial warrant power unless it is impracticable to obtain a warrant from a judicial officer.

The remedial interpretation sought

31. The remedial interpretation requested by the respondents is attached as an Appendix to this judgment.  It is very simple in its mechanism but more complex in its consequences.  The respondents ask that wherever the words “domestic premises” appear in section 22 of the IEO, they are replaced with the single word “premises”.  This would require that the word “domestic” be deleted in sections 22(1) to 22(4).  In addition the following sub-paragraph should added to section 22(1):

(b)  …; or

(c) it is not reasonably practicable to obtain either a warrant under subsection (2) or an authorization under subsection (3).

32. Of the four powers mentioned in paragraph 28 of this judgment, only the power contained in section 20(1)(a) will not be affected by the requested remedial interpretation.  All other powers will be.

Discussion

33. The effect of the proposed remedial interpretation is to eliminate any distinction between domestic premises and other premises.  As a consequence, a judicially authorized warrant will be required for all premises referred to in section 21.  The addition of the proposed new section 22(1)(c) would enable a member of the Customs and Exercise Service to enter and search premises without a warrant when it is not reasonably practicable to obtain a magistrate’s warrant under section 22(2) or an authorization under section 22(3).

34. I shall address firstly the question of whether the new section 22(1)(c) can be justified.  I am of the view that to read in this new provision would involve the court in judicial legislation.  The reason I say this is because the legislature has already provided for the situation where expedition is needed.  It does that by the provision in section 22(3) which allows the requirement of a magistrate’s warrant to be bypassed and an authorization given by an Assistant Superintendent instead.  That authorization, however, may only be given where there is a likelihood that the thing subject to seizure under section 21 is likely to be removed from the premises.

35. If the respondents wish a power wider than section 22(3) in terms of the trigger for dispensing with a magistrate’s warrant or a power to dispense even with an authorization by an Assistant Superintendent then it must go to the Legislative Council and have such a scheme enacted.  For that would be a scheme different from the existing legislative regime.

36. This brings me to the primary question of whether the court would be legislating by removing the distinction, deliberately created by the legislature, between domestic and other premises.  The applicants submit it would be an impermissible intervention by the court in the legislative process.  I agree and I do so because of the impact the remedial interpretation would have on the entry and search regime contained in both sections 21 and 22.

37. First, removing the distinction between domestic and other premises also removes it from the section 21(3) entry and search power, thereby transforming the section 21(3) power from a warrantless power into a warrant based power.  Whether section 21(3), as a warrantless power in respect of non-domestic premises possessing the specific character to which it applies, can be justified is not an issue I have had to address.  Were I to adopt the proposed remedial interpretation, the effect of so doing would be to strike down a legislative provision which is not relevant to the judicial review and which may be constitutionally sound.  I appreciate that the decision of the Court of Final Appealin Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170 allows a court to use the power of remedial interpretation to strike down a non-infringing legislative provision.  However, this is a power to be employed only in an exceptional case and I am not persuaded that in the circumstances of the present case recourse to the power is justified or would be appropriate.

38. Another impact, which the respondents have not mentioned but which, it seems to me, would be created by the remedial interpretation, is that section 21 contains other powers which are clearly contemplated may be needed to be employed in the course of exercising the power of entry and search.  These are set out in section 21(2).  One such power is a power to require information and that is contained in section 21(2)(c).  But, that power, as drafted in section 21(2)(c)(i) and (ii), limits the exercise of the power to only “the premises, place, vessel, aircraft or vehicle entered or boarded under this section.”  In order not to lose the benefit of this power in respect of premises, which are no longer entered under section 21 but only under section 22, the words “or section 22” would have to be added to the end of this phrase where it appears in section 21(2)(c)(i) and (ii). To add these words as part of the remedial interpretation illustrates the extent to which the court would have to be involved in “amending” other areas of the entry and search regime in order not to prejudice the operation of other elements of it.

39. Finally, it seems to me that there is a further impact flowing from removing domestic premises from section 22.  Once the term becomes simply “premises” the definition of “domestic premises” ceases to have any application to section 22.  But the definition of “domestic premises” also includes “places” that are within the definition.  Thus, by causing the definition to no longer apply to section 22 the requirement for a magistrate’s warrant is narrowed in that a warrant would no longer be needed in respect of, for want of a better term, “domestic places”.  The effect of this is to lessen the power of the magistrate.

40. The respondents submit that an alternative remedial interpretation would be to replace the words “domestic premises” in section 22 with the words “premises or place”.  This may deal with the third of the three problems that I identify above as flowing from the proposed remedial interpretation, but not the first two.  It also means that all non-domestic places would now require a warrant – a question which has not been before me as it is outwith the parameters of the judicial review.

41. All these impacts flow from the fact that the scheme the legislature has enacted in sections 20-22 is one which relies on the nature of the premises for determining whether the entry and search power shall be warrantless or warrant based.  They highlight the complexity of the regime enacted by the Legislative Council and how dependent that regime is on the type of premises to be searched.  Such a regime does not readily allow for remedial interpretation.  The remedial interpretations sought by the respondents involve a significant departure from a fundamental feature of the IEO entry and search regime which can lead to repercussions, and those I have managed to identify I have set out, which the court cannot fully anticipate.  For these reasons I decline to remedially interpret section 22 in either of the ways proposed by the respondents.

Conclusion

42. I therefore refuse the application for a remedial interpretation.  The costs of this application are costs in the cause and are therefore awarded to the applicants.

43. In paragraph 184(iii) of my judgment of 23 December 2014, in consequence of my declaration of unconstitutionality of section 21(1)(a), I ordered that seizures effected under warrants 3, 4 and 9 had to returned to the persons from whom they were seized.  I omitted to order, but do now order, that insofar as copies of these seizures have been provided to others, the Commissioner of Customs and Excise use his best endeavours to retrieve all such documents from those others.

Appendix

RESPONDENT’SPROPOSED REMEDIAL INTERPETATION

Section 21: Special powers of the members of the Customs and Excise Service, etc.

(1) Subject to section 22, any member of the Customs and Excise Service and any authorized officer may, if he reasonably suspects that there is, in or on any premises or place, vessel, aircraft or vehicle, any article in respect of which an offence has been committed under this Ordinance or which is, or contains, evidence of the commission of such offence-

(a) enter and search any such premises or place;

(b) stop, board, remove, detain and search any vessel, aircraft or vehicle.

(2) Any member of the Customs and Excise Service and any authorized officer may-

(a) seize any article-

(i) in respect of which he reasonably suspects that an offence has been committed under this Ordinance; or

(ii) which he reasonably suspects to be, or to contain, evidence of the commission of such an offence;

(b) seize any vessel which has a tonnage not exceeding 250 gross tons and any vehicle, if he reasonably suspects such vessel or vehicle to have been used in connexion with the commission of an offence under this Ordinance;

(c) require any information which he reasonably suspects relates to an offence which has been, or may have been, committed under this Ordinance that is-

(i) contained in a computer in, on or accessible from the premises, place, vessel, aircraft or vehicle entered or boarded under this section; or

(ii) contained in any device found in or on the premises, place, vessel, aircraft or vehicle entered or boarded under this section and which is capable of being retrieved on a computer,

to be produced on a computer in or on the premises, place, vessel, aircraft or vehicle in a visible and legible form, and examine the information;

(d) require any information described in paragraph (c) to be produced in a form in which it can be taken away and in which it is either visible and legible or capable of being retrieved on a computer; and

(e) take away the copy so produced under paragraph (d).

(3) Subject to section 22, any member of the Customs and Excise Service or any authorized officer may enter and search any premises or place connected with the manufacture, processing, production, storage, distribution or sale of any article in respect of which a licence or validated production notification has been issued or a production notification has been lodged under this Ordinance.

(4) The owner of any article, licence, production notification, validated production notification or other document seized by a member of the Customs and Excise Service or an authorized officer under this section may, on application to the Commissioner and subject to such conditions as the Commissioner may impose, photograph or make any other form of copy of the seized article, licence, production notification, validated production notification or document.

Section 22: Restrictions upon exercise of special powers of members of the Customs and Excise Service, etc.

(1) No domestic premises shall be entered and searched by a member of the Customs and Excise Service or an authorized officer unless-

(a) a magistrate has issued a warrant under subsection (2); or

(b) a member of the Customs and Excise Service of or above the rank of Assistant Superintendent has given an authorization under subsection (3); or

(c) it is not reasonably practicable to obtain either a warrant under subsection (2) or an authorization under subsection (3).

(2) A magistrate may, if he is satisfied by information on oath that there is reasonable ground for suspecting that there is in any domestic premises any thing which may be seized under section 21, issue a warrant authorizing a member of the Customs and Excise Service or an authorized officer to enter and search the premises.

(3) A member of the Customs and Excise Service of or above the rank of Assistant Superintendent may, if he reasonably suspects-

(a) that there is in any domestic premises any thing which may be seized under section 21; and

(b) that unless the premises are entered and searched immediately such thing is likely to be removed from the premises,

  authorize in writing a member of the Customs and Excise Service or an authorized officer to enter and search the premises.

(4) A member of the Customs and Excise Service or an authorized officer authorized under subsection (2) or (3) to enter and search any domestic premises may call upon any member of the Customs and Excise Service and any authorized officer to assist him in entering and searching the premises.

(5) No vessel which has a tonnage exceeding 250 gross tons shall be detained under section 21(1) for more than 12 hours without the consent of the Chief Secretary for Administration, who may, by order in writing under his hand, detain such a vessel for further periods of not more than 12 hours each.

(6) No aircraft shall be detained under section 21(1) for more than 6 hours without the consent of the Chief Secretary for Administration, who may, by order in writing under his hand, detain an aircraft for further periods of not more than 6 hours each.

(7) Any order made by the Chief Secretary for Administration under subsection (5) or (6) shall state the times from which and for which the order shall be effective.

[1] There is also a power to stop, board and search any vessel aircraft or vehicle and this power, and the powers in section 20(1)(a), are free of any qualification or limitation of any kind.

[2] The power under section 21 is a much more limited power as it can only be used by members of the Customs and Excise Service if the member reasonably suspects that there is in or on the premises, place, etc “any article in respect of which an offence has been committed under this Ordinance or which is, or contains evidence of the commission of such offence”.

HCAL 113/2012 and
HCAL 82/2013
(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 113 OF 2012

____________

_______________

J U D G M E N T

_______________

Introduction

1. In June 2011 the Hong Kong Customs and Excise Department (“C&E”) and its PRC counterpart in the Pearl River Delta, the Huangpu Customs of the PRC embarked on a joint investigation of the cross‑border smuggling of goods from Hong Kong to the Mainland via the Pearl River.  As other Customs units of the Mainland may have been involved I shall refer to them collectively as (“the Mainland Customs”).  As part of their investigation, officers of the C&E obtained sixteen search warrants against fourteen premises.  The warrants were all obtained under provisions of either the Import and Export Ordinance, Cap 60 (“IEO”) or the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”).  These two Ordinances were involved because the smuggling activities were suspected to involve breaches of their provisions; namely the offence of exporting unmanifested cargo in the former Ordinance and the offence of dealing in the proceeds of an indictable offence (ie money laundering) in the latter Ordinance.

2. In the covert stage of this investigation the C&E applied for and obtained thirteen search warrants against thirteen different premises which they intended to execute once their investigation was ready to be turned overt.  Six warrants were obtained on 3 September 2011, five warrants were obtained on 6 September 2011 and two were obtained on 2 November 2011.

3. On 12 January 2012 the operation was turned overt and a number of people were arrested and the search warrants executed and seizures affected.  Thus, by the time the warrants were executed they had been outstanding for periods of 4 and 2 months from the date they had been issued by the magistrate or District Court judge.  This is one of the grounds on which the applicants attack the warrants.

4. On 18 January 2012 two further search warrants were applied for and obtained and they were executed the following day.  The last search warrant was obtained on 30 January 2012 and was executed the next day.

5. Throughout the overt stage of the investigation officers from C&E and Mainland Customs liaised with one another including travelling to each other’s jurisdictions.  Both investigations were turned overt simultaneously and both involved the searches of premises and the seizure of materials from them.

6. The applicants subsequently became aware that C&E had allowed their Mainland counterparts to have access to the materials seized under the search warrants and possession of copies of some of them.  This knowledge led to these judicial review applications.

7. On 24 August 2012 the applicants filed their application for leave for judicial review in HCAL 113 of 2012 and leave was granted by me on 31 August 2012.  This application seeks to review the decision of the Commissioner of the C&E (“the Commissioner”) to provide to the Mainland Customs copies of documents that were seized after entry into and search of premises that was authorized by the search warrants.

8. On 6 May 2013 an application for leave to apply for judicial review in HCAL 82/3013 was filed and on 22 May 2013 I granted leave to the applicants to proceed with this judicial review and at the same time I ordered that the two applications for judicial review be consolidated.  HCAL 82/2013 seeks to review two decisions.  The first is the decision to obtain sixteen search warrants against fourteen premises which decision is being impugned because it is said to have been made mainly or substantially for the improper purpose of providing law enforcement agencies in the PRC with copies of seizures obtained under the warrants so as to assist them in carrying forward their investigation.  Thus, the decision being judicially reviewed is the decision to apply for the warrants.  The second decision is the decision to execute thirteen of the sixteen warrants at a time when several months had elapsed from the date that they were obtained.

9. The applications for judicial review called for a resolution of a number of factual and legal issues.  The factual issues concerned the reasons why the Commissioner, through his officers, made the decisions that are being judicially reviewed.  The legal issues concern the construction of the statutory regimes pursuant to which the warrants were issued, the effect of non-compliance with those regimes and the effect of the delay in execution of certain of the warrants on their validity.

10. Evidence was taken on the hearing of the applications on 26‑29 August 2013.

11. When the matter was resumed for final submissions on 12 September 2013, the Court raised certain legal issues with the applicants which caused them to seek an adjournment in order to consider their position.  Ultimately, the applicants sought leave to amend their Form 86s in both applications and leave was granted, by consent, on 17 September 2013, for them to do so.  The Form 86 in HCAL 82 of 2013 was amended to judicially review the decisions of the Commissioner to apply for, the decision of a magistrate to issue and the decision of the Commissioner to execute three search warrants under the IEO in respect of commercial premises.  The attack upon these decisions is based upon a construction of the IEO regime that it does not authorize the issue by a court of a search warrant against commercial premises.  Furthermore, the warrants that were issued appear, on their face, to have been issued under section 21 of the IEO which is the section empowering C&E officers to enter and search non-residential premises and not section 22 which is the section empowering a court to issue an enter and search warrant in respect of domestic premises.  HCAL 113 of 2012 was amended to include reference to these three allegedly invalid warrants.

12. In the applicants’ Supplemental Closing Submissions dated 29 November 2013 an attack was also mounted, for the first time, on the constitutionality of the section 21 IEO search power.  This necessitated a further amendment to the Form 86 in HCAL 82/2013 and the final Re‑Amended Form 86 was filed on 23 January 2014.

13. It may be easier to understand this judgment if I set out the effect of this history in table form.

Leave Granted	The Decision Being Previewed	HCAL No.
28.8.12	The decision by C&E to provide copies of documents seized under search warrants to law enforcement agencies in the PRC.	113/2012
22.5.13	The decision by C&E to obtain 16 search warrants against 14 premises for the main or substantial purpose of providing law enforcement agencies of the PRC with copies of seizures effected under them.	82/2013
22.5.13	The decision of C&E to execute 13 of the 16 search warrants 3 to 4 months after they had been obtained.	82/2013
17.9.13	The decision of C&E to apply for 3 search warrants under the IEO in respect of commercial premises.	82/2013
17.9.13	The decision of the magistrate to issue 3 search warrants under the IEO in respect of commercial premises.	82/2013
17.9.13	The decision of C&E to execute 3 search warrants invalidly issued under the IEO in respect of commercial premises.	82/2013
29.11.13 (filed on 23.1.14)	A challenge to the constitutionality of section 21(1)(a) of the IEO.	82/2013

14. Final submissions were, unfortunately, further delayed because of difficulties with counsels’ diaries but were concluded on 23 January 2014.

15. At the conclusion of the hearing I reserved my judgment which I said I would hand down at a later date.  This I now do.

The Applicants and the Search Warrants

16. The applicants’ positions vis-à-vis each other and the search warrants can be summarised as follows:

HCAL 113/2012 & HCAL 82/2013	1st Applicant (A Holding Company)	3 search warrants
HCAL 113/2012 & HCAL 82/2013	2nd Applicant (Subsidiary of 1st Applicant)	2 search warrants
HCAL 113/2012 & HCAL 82/2013	3rd Applicant (Subsidiary of 1st Applicant)	1 search warrant
HCAL 113/2012 & HCAL 82/2013	4th Applicant (Subsidiary of 1st Applicant)	1 search warrant
HCAL 113/2012 & HCAL 82/2013	5th Applicant (A scrap metal trader)	2 search warrants
HCAL 82/2013	6th Applicant (A director of 2nd Applicant)	1 search warrant
HCAL 82/2013	7th Applicant (An employee of 2nd Applicant)	2 search warrants
HCAL 82/2013	8th Applicant (A director of a company having dealings with A1-A4)	1 search warrant
HCAL 82/2013	9th Applicant (A director of 1st Applicant and daughter of 10th Applicant)	1 search warrant
HCAL 82/2013	10th Applicant (Operator of 1st Applicant)	1 search warrant

17. The details of the search warrants, using the numbering as set out in the two form 86s, are as follows:

No.	Property Against Which the Search Warrant was  to be Executed	Ordinance Under Which Search Warrant  was issued	Date Search Warrant  was Issued	Date Search Warrant was Executed
1.	The 10th Applicant’s residential flat	OSCO	6 September 2011	12 January 2012
2.	The 1st - 4th Applicants’ office premises	OSCO	6 September 2011	12 January 2012
3.	The 1st - 4th Applicants’ office premises	IEO	3 September 2011	12 January 2012
4.	The 2nd Applicant’s Tuen Mun office premises	IEO	3 September 2011	12 January 2012
5.	The 2nd Applicant’s Tuen Mun office premises	OSCO	6 September 2011	12 January 2012
6.	The 5th Applicant’s main office premises	OSCO	18 January 2012	19 January 2012
7.	The 5th Applicant’s branch office premises	OSCO	18 January 2012	19 January 2012
8.	The 9th Applicant’s Stubbs Road residential flat	IEO	2 November 2011	12 January 2012
9.	The 1st Applicant’s berth	IEO	3 September 2011	12 January 2012
10.	The 3rd Applicant’s Tsuen Wan office premises	OSCO	6 September 2011	12 January 2012
11.	The 4th Applicant’s Kowloon office premises	OSCO	6 September 2011	12 January 2012
12.	The 6th Applicant’s Residence	IEO	2 November 2011	12 January 2012
13.	The 7th Applicant’s Kwai Chung residential flat	IEO	3 September 2011	12 January 2012
14.	The 7th Applicant’s Tuen Mun residential flat	IEO	3 September 2011	12 January 2012
15.	The 5th Applicant’s office premises	OSCO	30 January 2012	31 January 2012
16.	The 8th Applicant’s residential flat	IEO	3 September 2011	12 January 2012

The Search Warrant Powers

18. As I have mentioned the authority to issue these warrants derives from two Ordinances, the IEO and the OSCO.  A number of features need to be highlighted in respect of these search warrant powers in order to address the legal issues that have arisen on this judicial review.

The IEO

19. The IEO distinguishes between, domestic and non-domestic premises. “Domestic premises” is defined in section 2 of the Ordinance to mean:

“… any premises or place used exclusively for residential purposes and constituting a separate household unit.”

20. Section 20(1)(a) of the IEO confers on C&E officers a rather narrow and somewhat specialized search warrant power.  It is a power to enter and search at any reasonable time any premises (other than domestic premises) but this power may only be exercised in respect of premises registered under the IEO and may only be exercised for the purposes of the IEO.  This is a free-standing statutory power which does not depend on judicial authority for its exercise.  It has a limited form of seizure power in respect of certain materials that the C&E officers are entitled to examine or require to be produced.  Other than being one of the powers given to C&E officers by the IEO to help in the enforcement of its provisions, this particular power has no relevance in these proceedings.

21. However, the IEO contains another search power and this is in section 21(1). It is said to be subject to section 22 but otherwise it is a broad entry and search power with an accompanying seizure power contained in section 21(2). Like section 20(1)(a) it is a free-standing statutory entry and search power which does not depend on any judicial authority for its exercise.  It empowers the entry and search of any “premises or place” but, as I have said, it is drafted as being subject to section 22.

22. Section 22 is a judicially authorized search warrant power and subsection (1) states:

“No domestic premises shall be entered and searched by a member of the Customs and Exercise Service or an authorized officer unless –

(a)   a magistrate has issued a warrant under subsection (2).”

Subsection (2) provides:

“(2) A magistrate may, if he is satisfied by information on oath that there is reasonable ground for suspecting that there is in any domestic premises any thing which may be seized under section 21, issue a warrant authorizing a member of the Customs and Exercise Service or an authorized officer to enter and search the premises.”

Because section 21(1) is said to be subject to section 22, the C&E will have to seek a judicially issued warrant under section 22(2) whenever the premises to be entered and searched fall within the definition of “domestic premises”.  Thus the effect of section 21(1) being made subject to section 22 is to confine the exercise of the power in section 21(1) to premises other than domestic premises as that term is defined in section 2.  For ease of description I shall refer to the premises to which section 21(1) applies as non-domestic premises.

23. Section 22 does not, itself, provide a seizure power but there is a seizure power contained in section 21(2)(a)[1] which states as follows:

“(2) Any member of the Customs and Exercise Service and any authorized officer may—

(a) seize any article—

(i) in respect of which he reasonably suspects that an offence has been committed under this Ordinance; or

(ii) which he reasonably suspects to be, or to contain, evidence of the commission of such an offence;”

24. Leaving aside the section 20(1)(a) power, the effect of sections 21(1) and 22(2) of the IEO is to create a two pronged search power regime according to the nature of the premises to be searched.  For non-domestic premises C&E officers are granted a free‑standing statutory entry and search power that they can access without judicial authority and in respect of domestic premises they have a separate judicially authorized entry and search warrant power.  Thus, for non-domestic premises they do not have to apply to a magistrate for a warrant and a magistrate would not have power under section 22(2) to issue a warrant in respect of such premises. 

The OSCO

25. The search warrant power in OSCO is contained in section 5.  Under section 5(1) an authorized officer, which is defined to include C&E officers, may apply to the Court of First Instance or the District Court for a warrant under section 5.  Section 5(2) empowers these courts on such an application to “issue a warrant authorizing an authorized officer to enter and search the premises …”. Thus, the warrant that is issued by the Court is only an entry and search warrant. 

26. However, section 5(5) provides:

“Where an authorized officer has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be relevant to the investigation for the purpose of which the warrant was issued.”

This subsection is the source of the seizure power.  Clearly, it is a free-standing statutory power and it is not a power which the Court issuing the warrant grants.

The Search Warrants

27. As mentioned, the search warrants all purport to be issued under the IEO and section 5 of OSCO.  The OSCO warrants were all issued by a District Court judge whilst the IEO warrants were all issued by a magistrate at Kwun Tong Magistracy.

The IEO Warrants

28. Three of the IEO warrants related to non-domestic premises yet were purportedly issued under section 22(2).  They were clearly issued without authority and the respondents accept this to be so.  Consequently, these warrants, which are numbered 3, 4 and 9, must, therefore, be quashed.

29. Regrettably, there was an unfortunate lapse by all concerned when it came to applying for, issuing and executing these warrants.  But, there is no evidence before me to indicate this was a lapse in integrity by any of the decision makers or that there was any impropriety by any of them in their decision making process.  The only inference I can draw is that in this process, there was simply not enough attention given to, and consequently there was not enough understanding of, the provisions of the legislative regime by those involved with these three warrants.  That this is the inference to be drawn is, I believe, also supported by the presence of other anomalies in the warrants which I discuss below.

30. The IEO warrants contained, at the top left hand side of the face of the warrant, a reference to section 21 of the Ordinance conveying the impression that the warrant was issued under the authority of that provision.  However, the incorrect reference to section 21 does not, in my view, affect the validity of these warrants.  The warrants are otherwise in compliance with section 22 and are properly issued in accordance with the power contained in that section.

31. The body of the warrant recites that an information has been laid before the magistrate that there are:

“… reasonable grounds for suspecting that that there is in [the specified premises] things which may be seized under section 21 of the Import and Export Ordinance, Chapter 60, Laws of Hong Kong and declaration has now been made before me substantiating the matter of each information.

  YOU ARE herewith empowered to enter and search the said premises.  You are empowered therein to seize any article, to require and examine any information and to require any information to be produced in a form in which it can be taken away and in which it is visible and legible or capable of being retrieved on a computer and to take away the copy produced, under Section21 Import and Export Ordinance, Chapter 60, Laws of Hong Kong.”

The italicised words represent a summary of the seizure and some of the other powers contained in section 21(2) of the IEO.

32. The location within the IEO warrants of the reference to the power of seizure tends to give the impression that the power is being granted by the warrant under the authority of the issuing magistrate.  Clearly that is not so as the power derives from section 21(2).  I presume that the reference to the power is for the purpose of informing those affected by the warrant of the existence of the power so that when the warrant is executed against their premises they will not be surprised that items within the premises are seized notwithstanding the lack of any grant of authority within the warrant to do so.  If this be so then, in my view, in order not to mislead any person to whom the warrant is shown, the appropriate place for such information is below the signature of the magistrate either as a separate paragraph or as a notation to the warrant.  The wording should also include mention that the power derives from section 21(2).

The OSCO warrants

33. The section 5(2) OSCO warrants are all similarly drafted and purport to empower all members of the C&E Service to enter the specified premises “at any time and there to search for and seize and retain any material, other than items subject to legal privilege, with respect to which an offence has been committed or is about to be committed against the provisions of s. 25(1) of the Ordinance …”

34. I do not think anything turns on the presence within the warrant of words purporting to grant a seizure power by the issuing District Judge to those executing the warrant.  A similar position arose in respect of warrants issued under the Prevention of Bribery Ordinance, Cap 201 in Apple Daily Ltd v Commissioner of the ICAC(No. 2) [2000] 1 HKLRD 647.

35. In that case the legislation was similar in that the search warrant power was an entry and search power only, pursuant to a warrant issued by a magistrate, with a separate free-standing statutory power of seizure.  The Court of Appeal rejected the argument that the purported authority to seize that was contained in the warrant vitiated it.  It held that if the warrant is otherwise compliant with the statutory provision under which it was issued and no prejudice is caused by the purported authorization as the officers are, in any event, empowered by statute to effect the seizures, then the warrant is valid.

36. Applying this reasoning to the OSCO warrants I am of the view that the existence of words within the warrants purporting to grant a power of seizure should be treated as mere surplusage not affecting the validity of the warrants.

The Late Execution of the Warrants

37. The applicants contend that the search warrants must have a limited life to them at the end of which they cease to have any legal validity and can no longer authorize the entry upon and search of the premises for which they were issued.  This argument applies to all warrants other than those numbered 6, 7 and 15.  It would have applied also to warrants 3, 4 and 9 had they been validly issued.

38. There is no doubt that once executed a search warrant is spent.  There is also no doubt that neither the OSCO nor the IEO (nor as far as I am aware other Hong Kong Ordinances creating search warrant powers) impose a time limit for the execution of warrants issued under their respective provisions.  It is clear from the Court of Appeal’s decision in Philip K H Wong, Kennedy Y H Wong & Co v Commissioner of ICAC (No. 2) [2009] 5 HKLRD 379 at pages 397-399, that judicial officers issuing search warrants can impose conditions upon the execution of the warrant.  I do not see any reason in principle why one such condition could not be that the warrant be executed within a specified time.  However, be that as it may, that was not done in respect of any of the warrants with which I am concerned.

39. The argument of the applicants is a simple one.  A search warrant is sought in order to enable a law enforcement agency to preserve and acquire evidence before it is destroyed.  There is, necessarily, a degree of urgency associated with its execution.  Furthermore, it cannot be issued unless the judicial officer is satisfied that the statutory pre-conditions to the issue of the warrant have been met.  One of these conditions is always that the judicial officer harbour a certain state of mind (usually either suspicion or belief or being satisfied of the existence of reasonable grounds that give rise to a suspicion or belief) that an offence has been committed and that evidence of this offence might be found in the premises to be searched.

40. Enabling the judicial officer to harbour this state of mind requires the law enforcement officer to place before the judicial officer information relating to his investigation.  Search warrants are thus issued on the basis of a judicial officer’s state of mind that there are grounds for believing or suspecting that evidence of a specified crime can be found in the premises for which the warrant is sought as at the point in time at which the warrant is sought. His state of mind is, in turn, based upon the knowledge that the law enforcement officer has of the criminal activity at that same point in time.

41. But, in a continuing criminal investigation the state of the investigating officer’s knowledge of the criminal activity and the likely existence and location of evidence to prove it are constantly changing.  The longer the delay in executing the warrant the more likely it is that the state of knowledge of the investigating officer will have changed and, therefore, the more likely that the information placed before the judicial officer will be different.  This requires, so the applicants argue, that the common law imply a time limit on the execution of the warrant requiring that it be executed within a reasonable time.

42. In support of its argument the applicants rely upon the decision of Higgins J of the Supreme Court of the Australian Capital Territory in Applebee (1995) 79 A Crim R 554.  In that case officers of the Australian Federal Police to whom a search warrant had been issued, delayed in executing the warrant because they wanted to keep the premises in respect of which the warrant had been issued under surveillance.  A period of 4 weeks elapsed between issue and execution of the warrant.  Higgins J specifically found that notwithstanding this lapse of time the police officers still had, as at the date of execution of the warrant, a genuine suspicion that the stolen property for which the search warrant was issued was still in the premises to be searched.

43. Higgins J started his analysis from the proposition that as a search warrant authorizes what otherwise would be a trespassory entry, “the warrant must clearly define the scope of the authority it confers and must not be exceeded”.[2] He continued at pages 557-558 and said:

“That is also true of the duration of the authority. It would be intolerable for an authority to enter premises to search to be unlimited in time. A justice would normally assume that a warrant to search for stolen goods would be executed as promptly as was practicable and reasonable. If that was not possible or not desired, the warrant, if issued, should be revoked or surrendered. It may, in some circumstances, be appropriate for an issuing justice to grant an extended time for execution of a warrant. …

In those cases, an extended time for an authority to be extant would be expected. Where it is proposed to search for and, if found, to seize evidence relating to an offence, urgency would be assumed. The warrant in this case was not promptly executed. It was not executed within a reasonable time. In my view, once there had been a failure to execute the warrant within a reasonable time, it ceased to authorise the entry which in fact was made. It follows that the search and seizure which occurred on 5 August 1993 was unlawful.” [3]

44. The respondents agree that the circumstances on which a warrant was issued may well change but not necessarily in a way which would negate the decision of the judicial officer.  Further information may strengthen, not weaken, the justification for issuing the warrant.  The mere lapse of time, the respondents argue, does not undermine the original justification by the judicial officer for the grant of the warrant. 

45. Reliance was also placed on the decision of the English Court Appeal of The Queen (oao) Pearce & Anor v Commissioner of Police of the Metropolis [2013] EWCA Civ 866 for the proposition that when a search warrant is executed is an operational decision for the executing law enforcement agency.  I regard this as uncontroversial but as not conflicting with the principle that a search warrant has only a limited life.  For, whatever that limited life may be, whether days or weeks, the decision of when within that period the search warrant should be executed will always be an operational decision for the investigating law enforcement agency.

46. The respondents also argue that in the absence of the legislature specifying a particular validity period for warrants it is inappropriate for a court to arbitrarily set a period.  A “reasonable period” is too vague and the correct approach, the respondents say, is to recognize that a search warrant’s life is indefinite [4] and only comes to an end when either it is executed or the circumstances relevant to its issue have changed in a way which could affect the state of mind required to be harboured by the judicial officer issuing the warrant.  Whether the circumstances have so changed is, the respondents argue, a matter for the investigating officer to determine. 

47. Here, there was no such change and for proof of this the respondents rely on the affirmation of Senior Investigator Lui Siu Fai.  In his affirmation Senior Investigator Lui said that in respect of the search warrants obtained in September and November 2011 he, as the officer-in-charge:

“... had critically examined the case and the affirmations submitted to the Court by the CED for application of the search warrants and concluded that there had been no material change in terms of the purpose of the searches, the grounds substantiating the searches and also the places to be searched. I considered that the execution could be carried out on 12 January 2012 pursuant to the aforesaid search warrants.”

48. However, if, as a matter of legal principle, a search warrant only has a limited life then the fact that there has been no material change in circumstances will not save it from lapsing by effluxion of time. 

49. The reason why the warrants were sought so long before their execution was explained by Assistant Superintendent Lai Chi Wing Barry.  In an affirmation he explained the thinking at the time application was made for the warrants:

“When the decision to apply for 5 warrants was made, it was contemplated that they would be executed at any time. It could have been executed immediately after issuance. It was not possible to determine the exact time of their execution at that stage. However, there was never any plan to delay the execution of these warrants. In fact, the assessment at that stage was that there were sufficient grounds to apply for search warrants, and the operation plan was to get the team prepared and be ready to take action at very short notice, so that the CED would be in the position to act as soon as it became necessary. Due to the nature and scale of this investigation, the time of the CED investigation and the operation turning overt had to be synchronized with the operation of the PRC Customs so as not to alert the targets of investigation prematurely. The CED would be required to act promptly if there was information that the suspects were leaving HK, or destroying the evidence, or upon notification from the PRC Customs of their intention to take action. The CED would have to be ready to take action as soon as the PRC Customs were prepared and ready to. The decision of timing did not depend on the CED alone, but with both the CED and the PRC Customs. Once the time came, and once the PRC Customs was ready to take action, the CED could have very little time to get ready. In particular, the CED would have very little time to apply for search warrants. The CED therefore was operationally required to be ready.”

50. In cross-examination Assistant Superintendent Lai confirmed that the delay was because their Mainland counterparts were not yet ready to turn the investigation overt. 

51. I can well understand how obtaining the warrants at an early date and then just sitting on them till both sides were ready so that their actions could be synchronized, would be regarded as a practical and convenient method of dealing with this element of the operation.  But it is an approach to obtaining search warrants which is quite inconsistent with the fundamental principle underlying the grant of such warrants, namely that at the time of application evidence is placed before the judicial officer that will enable him to be satisfied of the preconditions to the issue of the warrants.  The right of entry and search is only granted on the basis of the judicial officer harbouring the state of mind required by the statute based upon the evidence placed before him at the time of application. 

52. The passage from Senior Investigator Lui’s affirmation emphasizes that underlying the respondents’ argument is the substitution of the judgment of the law enforcement officer for the judgment of the judicial officer on the key issue of whether the statutory pre-conditions to the grant of a warrant are satisfied.  This, in my view, must be avoided if the rights of the citizen are to be properly protected.  Lord Hoffmann in Attorney General of Jamaica v Williams [1998] AC 351 sounded a warning of the risks of allowing law enforcement to decide for themselves whether the statutory pre-conditions are met when, he said at page 358G:

“The law relies upon the independent scrutiny of the judiciary to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter upon private property have been met.”

53. The time may well come when the legislature attaches time limits to the life of warrants issued under statutory provisions which it enacts but until that happens the courts can do no more than respect the intention of the legislature that courts act as guardians of the citizens’ rights and that intrusions into those rights should only be allowed when courts are satisfied that there is justification for so doing.

54. The important role of the courts in standing between the citizen and the state was emphasized by Chan CJHC (as he then was) in Apple Daily Ltd v Commissioner of the ICAC [2000] 1 HKLRD 595 when he said at page 600 A-B:

“Statutory provisions usually require that warrants are to be issued by the court. The purpose of this requirement is ‘to interpose the protection of a judicial decision between the citizen and the power of the state’ and the court’s duty is ‘of high constitutional importance’.”

55. The need for there to be a judicial gatekeeper to grant access to law enforcement to powers which intrude on the rights of the citizen was echoed by Li CJ in P v Commissioner of ICAC (2007) 10 HKCFAR 293.  In this case the Court of Final Appeal was concerned with the special power of investigation granted to the Independent Commission Against Corruption by section 14(1)(d) of the Prevention of Bribery Ordinance, Cap 201.  This power, which enables the ICAC to compel persons to provide information, is only exercisable after judicial authorization has been obtained.  At pages 300J-301B Li CJ said of this judicial safeguard:

“In this way, the scheme seeks to balance the public interest in fighting corruption and the public interest in the protection of the individual.

A judicial safeguard is thus introduced between the citizen and the state.  The need for independent scrutiny by the courts provides protection for the citizen against the unjustified use of the special investigatory powers.”

56. In Apple Daily Limited v Commissioner of ICAC(No. 2) [2000] 1 HKLRD 647 at 673I-674E, Chan CJHC provided a summary of what he called “the guiding principles which the court should bear in mind when examining a warrant which is being challenged.”  The third of his four guiding principles he expressed as :

“(3) the court must construe the statute which empowers the issue of a warrant to determine its validity and in doing so, should adopt a strict and restrictive construction. Any doubt which may arise should be resolved in favour of the citizens.”

57. Construing the section 22(1) search warrant provision as allowing search warrants to have an infinite life and as reposing with the law enforcement officer the power to determine when that life comes to an end contradicts the role that the legislature has determined the courts should play in the protection of the rights affected by this type of law enforcement power.  Consequently, in my view, where an ordinance is silent on the life of the warrant then, as a matter of statutory construction, it should be assumed, absent any clear legislative intention to the contrary, that the legislature intended the warrant to have a finite, rather than infinite, life.  Such an approach to the construction of an ordinance containing a search warrant power is consistent with Chan CJHC’s third guiding principle. 

58. The desirable course is for issuing judicial officers to impose as a condition on the warrant a time limit for its execution.  But where that has not been done and where an ordinance containing a search warrant power is silent on the duration of the life of the warrant and there is nothing in the ordinance to clearly indicate that the warrant was intended to have an infinite life, then the court will construe the warrant as having only a finite life. To give effect to such a construction, the courts will imply a condition that the warrant must be executed within a reasonable time.

59. What is reasonable will inevitably be a fact specific question and no absolute figure can be laid down without descending into arbitrariness.  In some cases it may be hours rather than days, in other cases it will be days rather than weeks and yet others, weeks rather than months.  In most cases it will be days to weeks, perhaps up to 2 weeks.  However, the longer the period between issue and execution of the warrant the more exceptional the circumstances will have to be for such a period to be regarded as a reasonable period.

60. Here, the bulk of the search warrants were executed 2 or 4 months after they were obtained.  These periods are well beyond what I would regard as reasonable in respect of an investigation into on-going smuggling activities when the landscape of the criminal activity must be fluid and changing from one day to the next.  In my view all these warrants ceased to have any validity by the date of their execution.  The only valid warrants as at the date of their execution were warrants numbered 6, 7 and 15.  The effect of my so deciding is that unless the entry into the premises was lawful by some other power then the seizures effected by these warrants were all unlawful and must be returned to the owners. 

The Legality of the Warrants and the Seizures

61. After my examination of the statutory regime I have concluded that all those warrants validly issued by judicial officers that were executed beyond a reasonable time had lapsed and did not therefore provide the C&E officers purporting to execute them with lawful authority to enter and search the premises the subject of those warrants.  As I have said above, this means that only the warrants numbered 6, 7 and 15 were validly executed.  These are all OSCO warrants.

62. There are three warrants, those numbered 3, 4 and 9, that were issued unlawfully by the magistrate purporting to exercise the power granted by section 22(2) of the IEO.  As I have said, it is accepted by the respondents that these warrants were issued without authority and must be quashed. 

63. But, in my view, that does not render the entry by the C&E officers into these premises a trespass as they had statutory authority to effect such an entry and conduct a search of the premises under section 21(1).  The only issue that then arises is whether, once having lawfully entered, they were entitled to effect any seizures.  In my view the powers that are contained in section 21(2) apply to officers in both situations of having entered lawfully upon premises, whether by the warrantless statutory power under section 21(1) or under the authority of a warrant issued by a magistrate under section 22(2). When a statute, as here, creates a number of different powers of entry and search without an accompanying seizure power and then separately from these entry and search powers creates an independent free-standing seizure power it must have been intended by the legislature, in the absence of any indication to the contrary, that the free-standing seizure power could be exercised by officers when entering and searching premises under authority of any of the separate entry and search powers.

64. However, there is one further argument which must be addressed before any final conclusion is reached on the legality of the seizures effected under the section 21(2) IEO power from the premises particularized in warrants 3, 4 and 9.  This is the argument that the entry and search power contained in section 21(1) is unconstitutional.  If that argument prevails then it means that the seizures were effected in the course of an unlawful entry and search.

The Constitutionality of Section 21 of the IEO

65. The legal issue raised by the applicants under this head is whether the wide way in which section 21 of the IEO is drafted renders it unconstitutional. If it does then the entries and searches purportedly made under the invalidly issued IEO warrants that are numbers 3, 4 and 9, and which now depend upon section 21(1) for their legitimacy, would be unlawful. 

66. The applicants argue that section 21(1) is a provision which restricts the rights contained in Article 29 of the Basic Law and Article 14 of the Hong Kong Bill of Rights (HKBOR).  As such, in order to be Basic Law and HKBOR compliant, it must satisfy the proportionality requirement.  In a nutshell the applicants maintain that the section is not proportionate because it is a power which can be exercised without any pre-authorization and secondly even if non pre-authorization is permissible, it is limited, or should be limited, to those situations where operational exigencies militate against any delay and require the law enforcement agency to act immediately in order to preserve and acquire evidence.

67. Article 29 of the Basic Law provides as follows:

“The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.”

Article 14 of the HKBOR states, so far as is relevant:

“(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …

(2)  Everyone has the right to the protection of the law against such interference or attacks.”

68. The concept of privacy as contained in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which is identical to Article 14 of the HKBOR, was discussed by Ma CJHC, as he then was, in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400.  At page 437 F-I he said:

“But what does the term ‘privacy’ mean and what does it encapsulate? The concept is a wide one, covering an extremely diverse range of situations. In the Shorter Oxford English Dictionary, the term ‘privacy’ is defined in the following way: ‘The state or condition of being withdrawn from the society of others or from public attention; freedom from disturbance or intrusion; seclusion.’ Thus, for example, a conversation with a friend on the street can be said to involve some element of privacy as will obviously activities within one’s own home. A right to privacy will generally exist where the person in question has a reasonable expectation of privacy, this being a test that finds favour in both the United Kingdom (see Campbell v MGN Ltd [2004] 2 AC 457, at 466E (paragraph 21) per Lord Nicholls of Birkenhead) and in Canada (R v Wong (1990) 60 CCC (3d) 460, at 477c-d and 478a per La Forest J).”

69. He later concluded that there is “no reason why a person should not be entitled to privacy in his office or workplace” and that “the right to privacy (and a reasonable expectation of privacy) can exist as far as a person’s office or workplace is concerned”.[5]

70. The theme that privacy involves freedom and what rights were encapsulated in this freedom was the focus of a definition provided by a Canadian judge, White Prov. J of the Saskatchewan Provincial Court in R v Symbalisty (2004) 119 CRR (2d) 311.  At page 319, paragraph 30, he said:

“What does the term ‘privacy’ mean in modern society and law? It connotes liberty. It means the right to be left alone by the state; the right to be free from unjustified intrusion or interference; the right of the individual to determine for himself or herself when, how, and to what extent he or she will release personal information about himself or herself.”

71. There cannot be any doubt that the right of privacy includes a right to be free from unlawful searches of one’s home or office.  This is a conclusion that Jerome Chan J had reached as long ago as 1994 in his judgment in R v Yu Yem Kin (1994) 4 HKPLR 74 where, at page 92, he said of Article 14 that it “confers on an individual the right to be free from arbitrary or unlawful interference in the form of search or seizure”.

72. Relying on these articles the applicants argue that there is a right to be free from unlawful search of both domestic and non-domestic premises by agents of the state and for any such search to be lawful the authorizing legislation must comply with these articles.  This is not a controversial proposition and I do not understand the respondents to disagree with it.  Although Article 14(1) of the HKBOR specifically mentions “privacy” whilst Article 29 of the Basic Law does not, I do not see, for present purposes, that Article 14 adds anything to Article 29.

73. The key words in both articles are “arbitrary and unlawful” and they are used to describe what it is that renders the interference with privacy through a search of premises a breach of the article.  The search warrant power being enacted legislation is lawful but that does not necessarily mean that it is not arbitrary.  If it falls foul of the arbitrariness principle, the fact that it is enacted legislation will not save it from being unconstitutional. 

74. So what does arbitrariness add to what is required of the restriction? There is no definition of arbitrariness which applies to every restriction of a constitutional right or freedom.  In Lau Cheong & Anorv HKSAR (2002) 5 HKCFAR 415, the Court of Final Appeal at page 435 F-G quoted without dissent the statement of the United Nations Human Rights Committee which said:

“The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”

75. The meaning which the Court of Final Appeal adopted for determining the constitutionality of the criminal liability for murder of a person who intends to inflict upon his victim only grievous bodily harm was a formulation that it borrowed from a New Zealand Court of Appeal decision dealing with arrest and detention.  This formulation was as follows:

“Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.”[6]

76. However when discussing the arbitrariness of a mandatory sentence of life imprisonment for those convicted pursuant to the grievous bodily harm rule, the court introduced the concept of proportionality, saying at page 450F and E-J:

“In the present context, of particular relevance is a strand of authority that introduces the concept of ‘disproportion’ and equates with arbitrary imprisonment, sentences of imprisonment which are manifestly disproportionate.

...

But where imprisonment is lawful, that is, where it is ordered pursuant to duly constituted laws, a high threshold must be crossed before those laws can be struck down on the basis that the imprisonment pursuant thereto is disproportionate. It must be sufficiently disproportionate to justify describing the law as ‘arbitrary’ (a disproportion so great as to reduce the law virtually to something capricious, unreasoned or without reasonable cause. As Dr Manfred Nowak puts it, the disproportion must be ‘manifest’.”

77. Whether proportionality, in the sense described above, is added to the test of arbitrariness for the purpose of determining whether section 21(1) of the IEO is arbitrary does not appear to me to matter for the section in my view is clearly not arbitrary.  I say this because the section is part of a regime which does require the use of a magistrate’s warrant to search domestic premises and so consciously limits the use of the warrantless power to non-domestic premises.  Secondly it employs a test for the trigger of the exercise of the power which is all but identical to the test laid down for the issue by the magistrate of a warrant under section 22(2).  Both have objective elements and both are set at the level of suspicion.  The section 21(1) power requires the C&E officer “reasonably suspects” whilst the section 22(2) power requires the magistrate to be satisfied “that there is reasonable ground for suspecting”.[7]

78. I do not see how such a provision can be described as capricious, unreasoned, without reasonable cause or so disproportionate as to reduce the law to something that brings it within this description.  I conclude that section 21(1) is not “unlawful or arbitrary”.

79. But there is no doubt that section 21(1) is a restriction on the rights contained in Article 29 of the Basic Law and Article 14 of the HKBOR.  As such if falls to be determined whether it complies with the constitutional requirements that any such restriction must meet.

80. The first, under Article 39(2) of the Basic Law, is that the restriction is prescribed by law.  This requires that it satisfy the legality or legal certainty requirement.  The applicants do not suggest that section 21(1) does not satisfy this requirement. 

81. However, apart from satisfying the requirement of legal certainty, any restriction on a constitutional right must be shown to be necessary.  In HKSAR v Lam Kwong Wai & Anor (2006) 9 HKCFAR 574, Sir Anthony Mason NJP noted that ever since R v Sin Yau Ming [1992] 1 HKCLR 127 a justification provision had been implied in the HKBOR and said that the same approach applies to the Basic Law.  In this way an encroachment upon, a restriction of or a derogation from a right may be constitutional as long as it can be justified.  It will be justified, he said “if it has a rational connection with the pursuit of a legitimate aim and if it is no more than necessary for the achievement of that legitimate aim”.[8] This justification has become commonly known as the requirement of necessity and as involving the application of a proportionality test.  The proportionality test requires the court to identify the legislative objective which the restriction is designed to accomplish and then to address the questions of whether:

(i)  the measures designed to meet the legislative objective are rationally connected to it (the rationality test); and

(ii)  the means used to impair the right or freedom are no more than necessary to accomplish the objective. (the proportionality test) [9]

82. The applicants do not argue that the section 21(1) power is not rationally connected to the legislative objective of enforcing the provisions of the IEO and effectively investigating breaches of those provisions.  The applicants assert, however, that the second requirement, the proportionality requirement, is not satisfied.  They argue that given the importance of the right of privacy to home and business premises, for any power of search of these premises to be proportionate “an objective standard must be established by an impartial adjudicator and subject to objective criteria for granting pre-authorization in order to provide a consistent, clear and identifiable standard for identifying the point at which the interests of the state prevail over the interests of the individual.” This would effectively mean that no warrantless or non pre-authorized power would ever be proportionate and so, lest this is pitching their argument too high, the applicants alternatively argue that a warrantless or non pre-authorized power must be confined to only those situations where the circumstances make it impracticable to obtain a warrant or pre-authorization.

83. In support of their argument that a warrantless search is, per se, unconstitutional the applicants rely on Canadian jurisprudence.  But this jurisprudence also does not go as far as the applicants maintain.  The case on which the applicants rely is Hunter et al v Southam Inc. (1984) 11 DLR 641. At page 653, Dickson J, in giving the judgment of the Supreme Court of Canada, discussed the purpose of section 8 of the Canadian Charter of Rights and Freedoms and said:

“ That purpose is, as I have said, to protect individuals from unjustified State intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

  A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes.  Such a requirement puts the onus on the State to demonstrate the superiority of its interests to that of the individual.  As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from State interference to the interests of the State in advancing its purposes through such interference.”

84. However, he went on to say, in the very next paragraph:

“ I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a pre-condition for a valid search and seizure.”

85. Dickson J went on to say that the pre-authorization provides “an opportunity, before the event, for the conflicting interests of the State and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the State are thus demonstrably superior”[10]. For this to be meaningful, Dickson J said that the person authorizing the search must “be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner”.  Whilst this did not require that the person performing the pre-authorization function be a judge he “must at a minimum be capable of acting judicially”.

86. These requirements that the Supreme Court said entry and search powers should meet in order to be constitutional can be summarised as that there be:

(1)  pre-authorization;

(2)  by a person, independent of the body applying for the warrant, capable of acting judicially;

(3)  who impartially determines whether the evidential standard that is a prerequisite to the issue of the warrant has been met; and

(4)  an evidential standard is set that is appropriate to the nature of the warrant being sought.

87. All of these elements can normally be found in Hong Kong’s statutory search warrant powers.  Where there is pre-authorization it will be by a judicial officer, usually a magistrate, but in some cases a District Judge or even a Court of First Instance Judge of the High Court.  In this way elements (1)-(3) are satisfied.  The evidential trigger usually contains an objective element in respect of the assessment of whether the evidential standard has been met and the evidential standard is normally set at the level of either suspicion or belief.

88. The applicants also rely on the Symbalisty judgment of White Prov. J who summarized the requirements laid down in Hunter, describing them as criteria which “must be met for a legally valid search ie a ‘reasonable search’ … A search conducted by police authorities without a warrant is presumptively unreasonable.”  (Emphasis added)

89. I do not believe that this is the law of Hong Kong.  Clearly the presence of all these requirements in a statutory search power will assist in ensuring the power is constitutional but it does not follow that the absence of one or more of them renders the power prima facie unconstitutional. Rather, I would express the position as being that the absence of one or more of these requirements may make it more difficult to persuade a court that the statutory search power is rational and proportionate.  But there is no presumption in favour of unconstitutionality merely because one of these requirements is absent.  This is so, it seems to me, even if the absent requirements are the first three, namely pre-authorization by a person acting judicially who determines whether the statutory evidential standard has been met.

90. It follows from what I have said that, to the extent I have set out, I reject the Canadian jurisprudence as representing the law of Hong Kong.  But even the Canadian jurisprudence goes only so far as making the statutory power presumptively unconstitutional.  It does not ban absolutely all warrantless powers of search.  The applicants have not been able to place before me any authority which supports the breadth of their first proposition.  I, therefore, reject the first of the applicant’s propositions that any warrantless power is per se unconstitutional.

91. However, the applicants are on stronger ground in respect of their second proposition that even if a warrantless power of search is not per se unconstitutional, the power of search in section 21(1) does not satisfy the proportionality test because it is not confined to those situations when it is impracticable to apply to a judicial officer for a warrant.

92. In support of their argument that warrantless powers of search  should be limited in their availability to those occasions when it is impracticable to obtain a warrant, the applicants rely on the judgment of Jerome Chan J in R v Yu Yem Kin (1994) 4 HKPLR 75.  I note that in this case Jerome Chan J also rejected the first of the propositions on which the applicants rely; namely that warrantless powers of search are, per se, unconstitutional.  In this case he was dealing with a warrantless power of search and seizure contained in section 52 of the Dangerous Drugs Ordinance, Cap 134 that was given to both police and C&E officers to investigate drug offences.  He held that merely because it was warrantless did not make the power unconstitutional; what made it unconstitutional was that the warrantless power had not been shown to be justified in combating drug offences in all circumstances.  At page 98 he said:

“A provision in the statute that such warrantless search and seizure is only to be permissible if it would not be reasonably practicable to obtain a warrant would bring the operation of the section within the bounds of reason and necessity.”

93. This decision was not appealed and in consequence of it section 52 was amended “to limit the power of entry and search without a warrant to the situations where it is not reasonably practicable to obtain one, in order to make the provision compatible with the Bill of Rights, and to provide a mechanism for the issuing of warrants”.[11] It is useful to compare the new section 52(1) with section 21(1) of the IEO.  Section 52(1) is as follows:

“(1) For the purposes of this Ordinance, any police officer and any member of the Customs and Excise Service may -

(a) stop, board and search any ship, aircraft, vehicle or train which has arrived in Hong Kong (not being a ship of war or a military aircraft), and remain thereon as long as it remains in Hong Kong;

(b) search any person arriving in Hong Kong or about to depart from Hong Kong;

(c) search any thing imported into or to be exported from Hong Kong;

(d) stop, board and search any ship, aircraft, vehicle or train if he has reason to suspect that there is therein an article liable to seizure;

(e) without a warrant issued under subsection (1E) where it would not be reasonably practicable to obtain such a warrant, enter and search any place or premises if he has reason to suspect that there is therein an article liable to seizure; or (Amended 62 of 1994 s. 8)

(f) stop and search any person, and search the property of any person, if -

(i) he has reason to suspect that such person has in his actual custody an article liable to seizure; or

(ii)  such person is found in any ship, aircraft, vehicle, train, place or premises in which an article liable to seizure is found.”

94. Interestingly section 52 only requires a warrant for entry and search of “any place or premises” and warrantless search is allowed for any “ship, aircraft, vehicle or train”.  This distinction would appear to reflect the reality that the mobility of ships, aircraft, vehicles or trains justifies the use of a warrantless entry and search power whereas in respect of premises there will be occasions where it is practicable to obtain a warrant from a magistrate.  Like section 52, section 21 applies to “any premises or place, vessel, aircraft or vehicle” but, unlike section 52, makes no distinction between “premises or place” and “vessel, aircraft or vehicle” in terms of the practicability of obtaining a warrant.

95. In defence of the power, the respondents argue that in its drafting section 21(1) reflects a very clear goal of being proportionate.  It contains an acceptable evidential standard that triggers its exercise and it is limited to non-domestic premises in respect of which it is said there is a lower expectation of privacy.  This lower expectation of privacy, it is argued, is relevant to the proportionality test.  Additionally, there exists civil law remedies for any wrongful exercise of the power.  These legal matters must then be placed in the law enforcement context to which the IEO relates, namely the importation and exportation of goods into and out of Hong Kong.

96. If one compares a person’s dwelling with his workplace then it is true that there is not the same intrusion of his personal property rights and it was the intrusion with personal property rights that was originally the focus of the common law’s concern.  But in modern times the intrusion of a person’s privacy has assumed increasing importance in the area of search warrant law and in the area of the intrusion of privacy there may be much less reason to distinguish between home and workplace.  Nowadays the workplace may contain much personal property and personal information belonging to the worker who treats the space within which he or she performs the employer’s duties as his or her own private space, and so any intrusion into it will frequently be a significant intrusion into the privacy of the person occupying that workplace. It is not surprising that the law recognises that in respect of the workplace a worker has a reasonable expectation of privacy.

97. One of the cases on which the applicants rely is R v Rao 9 D.L.R. (4^th) 542, a decision of the Ontario Court of Appeal.  The decision is useful for its very detailed discussion of the common law of search and seizure and how it had developed in Commonwealth countries and the United States of America up till the date of the judgment, which was 1984.  The particular search and seizure power coming under the scrutiny of the Ontario Court of Appeal was contained in section 10(1)(a) of the Narcotic Control Act which granted to police officers a warrantless power of entry and search of any place other than a dwelling-house and power to seize any narcotics found therein.

98. It was, therefore, a warrantless entry, search and seizure power whose reasonableness (that being the operative word under the Canadian Charter) was being justified by the fact that it distinguished between dwelling houses and other places.  In giving the judgment of the court Martin JA discussed the development of search powers under the common law in England and some Commonwealth countries and compared the approaches of those jurisdictions with Canada in their various attempts at legislating in this area.  He summarized the position as follows:

“To sum up: Most Commonwealth jurisdictions confer extensive powers to search persons and vehicles in respect of narcotic drugs. In some jurisdictions the power to search persons is wider than in Canada. However, England and most of the Australian States require a warrant to search private premises. The legislation in New Zealand confers similar, but somewhat broader powers than those conferred by the Narcotic Control Act. A summary of Commonwealth legislation conferring search and seizure powers in respect of dangerous drugs is set out in app. ‘B’.

The extensive powers granted by Commonwealth jurisdictions to search without a warrant persons and vehicles for dangerous drugs, in contrast to the warrant requirement for the search of premises in many Commonwealth jurisdictions, may at first seem anomalous because as a general rule the protection of the integrity and dignity of the person in contemporary society is given a higher priority than the protection of property. But in modern times the restriction on search and seizure are perceived as protecting privacy interests rather than property interests. In addition to the fact that the mobility of persons and vehicles would, in most cases, make the requirement of a warrant impracticable, there is also a greater legitimate expectation of privacy with respect to dwellings and offices and other private premises than with respect to vehicles.” [12]

99. His analysis led him to conclude that “the legal systems derived from the common law generally require a warrant to enter and search private premises, as distinct from vehicles and vessels which may rapidly move away” [13] and that in England “statutory authority to enter and search private premises without a warrant appears, in the main, … to be confined to emergency situations where it is not practicable to obtain a warrant”.[14]

100. Bearing in mind the importance of the right to be protected [15] and the importance of the requirement of a warrant in providing “a safeguard against an intrusion at the discretion of a police officer” [16] he was of the view that even though there is no express constitutional warrant requirement under the Canadian Charter:

“... whether a search was authorized by a warrant may be an important or even critical factor in assessing the reasonableness of a search in a given case.” [17]

101. Drawing upon his historical analysis of the common law and comparative study of legislative enactments in other common law jurisdiction he expressed his conclusions at pages 567-568 of the judgment as follows:

“The common law has always afforded special protection to dwelling-houses which s.10 recognizes by requiring a warrant to search a dwelling-house. In my view, however, the individual’s legitimate expectation of privacy in contemporary society extends equally to his office...

In my view, the warrantless search of a person’s office requires justification in order to meet the constitutional standard of reasonableness secured by s.8 of the Charter, and statutory provisions authorizing such warrantless searches are subject to challenge under the Charter.  The justification for a warrantless search may be found in the existence of circumstances which make it impracticable to obtain a warrant: see, for example, s.101(2) of the Code; s.11(2) of the Official Secrets Act.  The individual’s reasonable expectation of privacy must, of course, be balanced against the public interest in effective law enforcement.  However, where no circumstances exist which make the obtaining of a warrant impracticable and when the obtaining of a warrant would not impede effective law enforcement, a warrantless search of an office of fixed location (except as an incident of a lawful arrest) cannot be justified and does not meet the constitutional standard of reasonableness prescribed by s.8 of the Charter.”

102. Like Martin JA and the Ontario Court of Appeal I can see less justification in the present day to distinguish between domestic and non‑domestic premises.  But, unlike the Canadian courts, I am not concerned with whether section 21(1) is a reasonable restriction but whether it is a proportionate one.  I accept that for domestic premises the likelihood is that the intrusion of privacy is greater than it would be in the workplace but the issue is not whether a greater weight or value should be placed on the privacy enjoyed at home as opposed to the privacy enjoyed at work, but rather whether there is a reasonable expectation of privacy in the workplace.  The answer to that question has, in Hong Kong, already been answered in the affirmative by the decision of our Court of Appeal in the Chan Kau Tai decision previously quoted.  Nor do I see how a qualitative distinction between privacy in the home and privacy in the office is relevant to the proportionality of the restriction being in the form of a warrantless power of search.  For it must be remembered that we are not determining the necessity for C&E officers having a search power but rather the necessity for them having a warrantless one.  The question then becomes, what is the justification, the need, for C&E officers to have a warrantless power of search, to which, in my view, the only reasonable answer is because the circumstances are such that it is impracticable for them to obtain a warrant.

103. To assist me in understanding the operational difficulties faced by C&E officers in their daily work, the respondents filed an affirmation affirmed by Assistant Superintendent Lai Chi Wing Barry.  In respect of C&E’s duties under the IEO he explained:

“Apart from the enforcement side with particular focus on anti‑smuggling, the import and export regulatory regime also includes administrative measures like licence control on articles such as textile, strategic commodities, pesticides, pharmaceutical products, Chinese herbal medicines, rough diamonds, optical disc mastering and replication equipment, powdered formula, vehicle parts, etc.”

104. This was followed by a description of the various search powers granted to C&E officers under the IEO.  He said:

“IEO also provides a wide scope of search power for different types of premise in Hong Kong and a framework of authorization for search and seizure comprising 3 major layers of empowerment as set out in sections 20-22 of the IEO.”

105. He then referred to each of these sections explaining how each operated to assist C&E officers in carrying out their duties.

106. Assistant Superintendent Lai cited operational examples in order to demonstrate the need for the power of warrantless search in section 21.  He said that usually a minimum of 3 to 4 hours is needed for the preparation of the warrant.  This delay, he said, may seriously affect the C&E investigation. This is particularly so in respect of the investigation of the smuggling by cross-border truck drivers.

107. I accept completely the need for C&E officers to have warrantless search powers in respect of anything that is mobile, such as vehicles, vessels, planes and trains.  I also accept completely that there will be occasions when they may need such powers in respect of immobile places.  But the affirmation of Assistant Superintendent Lai does not reveal a need for a warrantless search power of non-domestic premises, other than when it is not practicable to go before a magistrate. 

108. This approach was adopted when amending section 52 of the Dangerous Drugs Ordinance and nothing has been placed before me to show that such an approach would be inappropriate for section 21 of the IEO.  I note that in the present case, C&E officers, in ignorance of the provisions of sections 21 and 22 of the IEO actually applied to a magistrate for warrants, those numbered 3, 4 and 9, in respect of non-domestic premises.  Thus, their actions in the present case actually gainsays their need for an unconstrained warrantless power of search.  Their mistake in respect of all the warrants that lapsed through delay in executing them, was not in preparing the judicial applications in advance, but rather in making those applications in advance.  Had the documents been prepared in advance then they could have been easily updated to accommodate any changes in the circumstances and then placed before the magistrate.

109. I am also aware that section 17 of the Prevention of Bribery Ordinance, Cap 201 was amended in 1996 to change it from a warrantless search power to a power exercised by warrant issued by a magistrate, but with a residual power left with the Commissioner of the ICAC to issue his own warrant where he was satisfied that there was reasonable cause to believe that the making of an application to the magistrate would seriously impede the ICAC’s investigation.

110. Thus, on at least two occasions the Government has amended warrantless search power legislation to bring the exercise of the power under judicial control when it was practicable to apply to a magistrate for the issue of a warrant.  Implicit in the Government’s actions is a recognition of the importance of having a judicial safeguard overseeing law enforcement’s access to search warrant powers.  At paragraphs 52-55 of this judgment I have quoted judicial authority which emphasizes the need for the independent scrutiny of the courts and the characterization of such scrutiny as being “of high constitutional importance”.  Those statements are also relevant to my present task.

111. The distinction between domestic and non-domestic premises does not, for the reasons I have mentioned, justify a warrantless entry and search power for the latter type of premises.  Being a distinction which is based upon an assumption that the right to privacy in respect of non‑domestic premises is somewhat less valuable or less important than the right to privacy enjoyed by the occupants of domestic premises, it is not, in my view relevant to the issue of whether a warrantless search power is a proportionate response to the law enforcement need.

112. There is no other distinction contained in section 21(1) or other aspect of it which impacts on the proportionality test.  I conclude therefore that a warrantless power of entry and search of immobile premises is not proportionate unless it contains a provision that it is only to be employed when it is not practicable to obtain a warrant from a person acting judicially.  Absent such a provision, section 21(1) is not a proportionate response to the problem it seeks to address and is, therefore, inconsistent with Article 29 of the Basic Law.

113. The consequence of my so finding is that there was no statutory underpinning of the C&E officers’ entry and search of the premises in respect of which warrants 3, 4 and 9 were issued and, therefore, nothing to legitimise those entries and searches thereby rendering unlawful all seizures effected in the course of them.

Conclusion on the Legality of the Warrants

114. As a result of my conclusions on the lateness of the execution of the warrants only those numbered 6, 7 and 15 were validly executed and the seizures lawfully made.  These warrants are all OSCO warrants.

115. However warrants were unnecessary in respect of the premises particularized in warrants 3, 4 and 9 as these were premises which C&E officers were authorized to enter and search without warrant pursuant to the power granted to them by section 21(1).  But my conclusion on the constitutionality of section 21(1) has rendered their entry and search of these premises unlawful and as a consequence the seizures effected in the course of the search were unlawful.

116. Thus the only outstanding issue is the decision of the Commissioner to apply for the three OSCO warrants that are numbered 6, 7 and 15.

The Factual Background

117. Evidence was placed before me by both the applicants and the respondents in the form of affirmations.  The respondents did not ask for any of deponents of the applicants to be cross-examined but the applicants crossed-examined the four deponents of the respondents.  They were Assistant Superintendent Chan Tsz Tat, Senior Investigator Li Kin Kei, Assistant Superintendent Lai Chi Wing Barry and Senior Investigator Lui Siu Fai. Assistant Superintendent Chan was responsible for the smuggling side of the investigation and Assistant Superintendent Lai for the money laundering side of the investigation.  Senior Investigator Li went to the Mainland and inspected evidence bundles put together by Mainland Customs for the Guangzhou Peoples Procuratorate which made use of materials, or information contained in them, that had been seized by C&E under the search warrants and provided to Mainland Customs.  Senior Investigator Lui was responsible for a team of officers that determined, via a filtering exercise, what documents and hard disks should be provided to their Mainland counterparts. 

118. I shall set out only so much of the factual background as is necessary in order to explain my findings.  As a result of the conclusions I have reached on the legal issues, the factual issues have assumed much less importance.  However, the fact that I do not mention certain evidence does not mean that I have not taken it into account.

119. From evidence placed before the court by the respondents it is clear that the C&E has a substantial number of Hong Kong-Mainland cross‑border smuggling cases.  Assistant Superintendent Lai in his first affirmation said:

“From January 2007 to September 2012, the CED has effected 1,054 Hong Kong-China cross-boundary smuggling cases with the arrest of 1,482 persons and a total seizure valued up to HK$2.6 billion.”

Not surprisingly, he goes on to affirm that C&E and Mainland Customs maintain close liaison with one another.

120. In order to regulate this cooperative relationship and facilitate their investigations the C&E and Mainland Customs entered an arrangement which is set out in a document called the Customs Cooperative Arrangement (CCA). 

121. As the CCA was the basis for the provision by the C&E of copies of the materials they seized under the warrants to their Mainland counterparts, it is necessary to say something about it.

122. Section 2 of the CCA is headed “Intelligence exchange”.  “Intelligence” is not defined but obligations to provide it are set out.  One of them is to provide intelligence “in respect of any violations of the customs law that has taken place or under planning and involved the import or export” of various listed articles; and “intelligence which may be useful for the other party in the investigation of activities in violation of the customs law”. 

123. There is a separate section on assisting each other with verification of documents and other matters relating to the import and export of goods.

124. It is also provides for what it calls “parallel operations by both parties” which I take to be the CCA terminology for joint operations.

125. There is a separate section headed “Use of intelligence and documentation” which because of its relevance to this case I shall set out in full.  It is as follows:

“Ten. Use of intelligence and documentation

1. The intelligence, documentation and other materials obtained in accordance with this Arrangement shall solely be used for purposes as stipulated in this Arrangement and be subject to the terms and conditions imposed by the party providing the aforesaid intelligence, documentation and other materials.

2. Unless with the written consent of the party providing the aforesaid intelligence, documentation and other materials and subject to the terms and conditions imposed by that party, the aforesaid intelligence, documentation and other materials shall not be used for other purposes, including admitting as evidence in court.

3.  The intelligence, documentation and other materials obtained in accordance with this Arrangement shall be subject to the same confidentiality and protection as the same kind of intelligence, documentation and other materials obtained in the customs territory of the receiving party are subject to.”

126. The investigation in the current case commenced around June 2011 and was into the syndicated smuggling of precious metals, electronic products, frozen meat, etc resulting in the evasion of PRC Customs tax estimated to be in excess of RMB 600 million.  The smuggling was suspected of having been on-going since 2009 and the criminal proceeds that flowed from it were suspected of being laundered through Hong Kong bank accounts.  When the investigation was turned overt on 12 January 2012, 19 persons were arrested in Hong Kong and over 100 persons were arrested in the Mainland.  Both C&E and Mainland Customs coordinated their investigation and turned them overt at the same time.  The decision as to when their investigation should be turned overt was one jointly made by both Customs authorities.

127. In order to carry forward the investigation it was necessary to go through an exercise comprehensively comparing and cross-matching the declarations made and documents submitted to both C&E and the Mainland Customs including cargo manifests, invoices and sale contracts amongst others.

128. It is abundantly clear to me that this caused the investigations in both jurisdictions to become interdependent on one another and necessitated close cooperation between C&E and Mainland Customs.  There were frequent meetings between C&E and Mainland Customs on a monthly basis and sometime more than once a month.  There were intelligence exchanges under the CCA and undoubtedly the exchange of intelligence, materials and investigative findings was indispensable to the success of the investigation. 

129. Assistant Superintendent Lai confirmed that C&E received from its Mainland counterparts a request for exchange of intelligence in this joint investigation.  This request was first made in June 2011 and was made pursuant to the CCA.  C&E made a similar request of Mainland Customs and it was pursuant to this request that C&E enlisted the support of Mainland Customs and gave them copies of the seizures to enable them to provide the assistance requested.  Thus, from the outset the two Customs authorities were conducting a joint investigation in the course of which they expected they would be exchanging with one another intelligence which each acquired in the course of their enquiries and which each thought might be of assistance to the other.  This is a very important part of the context and it is a part of the context which was regulated by the CCA.

130. Assistant Superintendent Lai confirmed that the intelligence exchanges that took place were handled under the CCA and that the copies of seizures effected by the searches that were provided to Mainland Customs were provided under the CCA.  He also made it clear that it was only copies of seizures effected under the IEO that were provided to Mainland Customs.  He said that what was provided to Mainland Customs was determined by a Senior Investigator under the supervision of the Divisional Commander. 

131. The particulars of the seizures are as follows:

Search Warrant No.	Volume of Materials provided   to Mainland Customs
3	34,387 pages and 981.9GB of digitally stored materials on hard disks
9	30 pages
4	351 pages
14	2,300 pages and 30GB of digitally stored materials on hard disks

132. Assistant Superintendent Lai set out in some detail the general nature of the assistance that Mainland Customs provided and also specifically the assistance it provided in respect of particular categories of documents.

133. Some of the documents provided were banking records of the applicants. Among them were 21,000 pages of Cheque Requests/Voucher Forms and Assistant Superintendent Lai explained why it was necessary to enlist the assistance of their Mainland counterparts in respect of these documents.  In relation to 4,782 pages of bank account records, only 323 pages were provided to Mainland Customs as it was only in respect of these pages that it was considered that their Mainland counterparts could be of assistance.

134. Even though the terms of the CCA allow the parties to exchange intelligence in the form of copies of materials seized, a restriction is placed on the use that may be made of this intelligence material.  This restriction is made clear by a caveat that is applied to such material which is to the following effect:

“Confidential – The information that is contained in this document is provided for intelligence use only. It is not to be disseminated to a third party or used as evidence in court without the express permission from this Department.”

All copies of documents provided by C&E to Mainland Customs pursuant to the CCA had a similar, but not identical, caveat printed on them.

135. According to Senior Investigator Lui Siu Fai, in respect of all material for which he was responsible, the following caveat was photocopied onto every photocopy of a document and affixed as a sticker to the cloned hard disks:

“注意 - 本件所載資料僅作參考用途，不能透露給第三者或作法庭証供之用。”

136. The Judiciary interpreter has translated this as:

“Note: The information contained in this document is merely for reference purpose. It cannot be disclosed to any third party or submitted in law courts as evidence.”

137. The purpose of the caveat was clearly to remind C&E’s Mainland counterparts that there was a limit on the use they could make of the intelligence; the caveat did not and was not intended to be a prohibition on the Mainland Customs making any use of the intelligence for that would have been contrary to the CCA.  The Mainland Customs was perfectly entitled to make use of the materials for an intelligence purpose.  In his affirmation Assistant Superintendant Lai explained:

“Under the CCA, the CED and PRC Customs are well aware that information and materials exchanged are solely used for intelligence purpose and if the information and materials, either in whole or in part, would be adduced as evidence, the requesting party has to obtain the expressed permission from its counterparts and follow proper procedures.”

Of course, once C&E surrendered the seizures to Mainland Customs they lost all ability to control the use that might be made of them.

138. The presence of the caveat on the copied documents would have prevented their use as court documents in the Mainland.  But anything stored on the hard disks, or at least some of the hard disks, may have been capable of being printed out without the printed copy bearing the caveat.

139. It was Senior Investigator Lui Siu Fai who provided an affirmation explaining the screening process employed in respect of documents and computer hard disks seized in the execution of the search warrants.

140. In respect of the documents that were seized, around 15 Customs Officers worked for around two months under the supervision of Senior Investigator Lui.  Certain criteria were used to identify what was relevant to the investigation and the screening process was carried out manually by the officers and Senior Investigator Lui.

141. In respect of the hard disks a total of 1,011.9 GB had been cloned and provided to Mainland Customs.  The relevancy of the material stored on these hard disks had been determined at the time of seizure by making enquiries of the staff who operated the computers where hard disks were seized.  The seized hard disks were cloned and the cloned copies handed over to officers for screening of the contents.  The officers doing this screening were some of those involved in the screening of the documents.  Twenty two computer hard disks were then identified as containing information relevant to the investigation and the provision of which to Mainland Customs would assist C&E’s investigation.  These twenty two hard disks were again cloned and provided to their Mainland counterparts.  He explained why it was necessary to clone the whole of the hard disk, rather than specific files on it.  He said it was in order,

“To maintain the integrity of the data in the computer hard disks and to enable investigation into such data which may not have been readily apparent from the file directory of the hard disks ...”

142. He gave an example of how Mainland Customs successfully located some hidden files on a hard disk which C&E was then able to retrieve.

143. Senior Investigator Lui said he handed the copy documents and cloned hard disks to officers of Mainland Customs between 31 January 2012 to 21 June 2012.

144. In respect of the documents for which Assistant Superintendent Lai was responsible, his staff scanned them into soft copies and a computer application was used to affix a caveat to each page.  These soft copies were then copied onto compact discs which were given to their Mainland counterparts.

145. Notwithstanding the close cooperation between the parties the respondents maintain that at no stage were materials that had been seized in the course of executing search warrants handed to Mainland Customs for the purpose of assisting the investigation of suspected offences in the Mainland.  It is not disputed that access was granted to Mainland Customs to seized materials nor is it disputed that copies of seized material were handed over to them.  However, it is asserted that this was done for the purpose only of assisting the C&E investigation.  However the C&E concede that as a result of their actions the Mainland Customs have been able to reconstruct the contents of these documents for the purpose of their own prosecutions and may have made use of information derived from them. 

146. The extent of the cooperation can be gleaned from cover sheets prepared by the Mainland Customs in respect of reconstructed documents.  For example exhibit CKC-4 is headed:

“Format conversion of material on the Contents of
the <<Payment Vouchers>>
Acquired from Hong Kong

On 11 January, 2012, the General Administration of Customs (“GAC”) and the Hong Kong Customs and Excise Department (“CED”) carried out unified investigation and detection against the violations of the Mainland and Hong Kong laws across the districts of Guangdong, Hong Kong simultaneously by Chin Kam Chiu’s syndicate. Both customs authorities detected a large number of written materials of involved documentations and documents and electronic information.

Pursuant to the relevant provisions of the <<General Administration of Customs and the Hong Kong Customs Cooperation and Mutual Assistance Arrangements>>, the “1.28” task force of the GAC has repeatedly sent officers to the CED to read the written materials of involved documentations and documents and electronic information seized in CED’s operation and extract materials relevant and verifiable with other evidences of the Mainland smuggling case during the period from February to August 2012.”

147. In June 2013 a trial took place at the Guangzhou Intermediate People’s Court of certain defendants arrested by the Mainland Customs.  At the court hearing the Mainland Customs were asked to explain the source of the C&E evidence.  In a written statement tendered to the court by the Mainland Customs the following explanation was made:

“ Explanation on the Extraction of Foreign Evidence
in the 1.28 Special Project

  On 12^th January 2012, the General Administration of Customs and the Hong Kong Customs and Excise Department (‘CED’) commenced a united investigation and detection operation against the syndicate of Chin Kam Chiu which was carrying out smuggling across the border of the PRC and Hong Kong.  Pursuant to the warrants issued by the courts of Hong Kong, the CED carried out searches against the offices and premises of Chiu Kam Chiu’s syndicate in Hong Kong and obtained a large volume of written material of documentations, documents, etc and electronic information involving the case.  Amongst them, the originals kept in Hong Kong are to be used in the criminal prosecution against Chiu Kam Chiu while copies of parts of the documents and material (including electronic mail, banking transactions documentations, cargoes changing containers, loading and discharging, material on weighing, ‘statement of accounts’ for authorized importation, internal management documents of corporations, etc, totalling 4171 pages) were dispatched in separate batches to the PRC Customs through the mutual assistance under the provisions of the ‘Mutual Arrangement on Cooperation between the Administration General of Customs and the Hong Kong Customs and Excise Department’.  On 14^th January, 24^th February, 28^th February of 2012, Wu Yan Cheng, Zhou Jian Feng, the team members of the Special Project handled the transfer and conversation formalities of the above documents and material with Lai Chi Wing Barry and Chan Tze Tat of the CED in 3 occasions.”

148. Nevertheless the respondents argue that the fact the Mainland Customs made derivative use of the materials supplied to them and the fact that they would do so may have been foreseen by the C&E officers does not detract from C&E’s claim that their only purpose in providing these materials was to advance their own investigation.

The Decision to Apply for the Search Warrants

149. This ground of judicial review attacks the decisions of the Commissioner to apply for the issue of the sixteen warrants.  It is argued by the applicants that the warrants were sought for the purpose of facilitating the Mainland Customs’ investigation and for the purpose of providing that body with copies of the documents seized under the warrants to assist that investigation. Alternatively, it is said that as this was a joint investigation the C&E officers always intended to provide copies of their seizures to Mainland Customs in order to assist them in their part of the joint investigation and the presence of this improper purpose taints the Commissioner’s decision to apply for the warrants.

150. The position of the respondents is that the C&E had its own on-going investigation into offences and that the warrants were sought and seizures effected in order to carry forward that investigation.

151. The only evidence that supports the assertion of the applicants is first that this was a joint investigation involving very close cooperation between C&E and Mainland Customs with each rendering assistance to the other so that their investigation could be successfully carried forward.  Secondly, there was a substantial amount of material provided by C&E to Mainland Customs that had been seized under search warrants.

152. I do not regard the first piece of evidence as significant.  Nowadays much of crime is transnational in nature and that has required law enforcement agencies (“LEAs”) to develop close relationships with their counterparts in other jurisdictions.  The level of cooperation and assistance will depend upon many factors, not least of which will be the legislative and administrative arrangements put in place by the respective governments to regulate these relationships.  This can range from legally based obligations flowing from the governments being parties to bilateral or multilateral treaties or from the governments having in place mutual legal assistance legislation to the purely administrative arrangement of the kind that C&E entered into with the Mainland Customs in the form of the CCA.  That the CCA exists is hardly surprising, indeed it would be disappointing if it did not exist for in today’s world such legal and administrative systems or arrangements are crucial to a LEAs’ ability to investigate cross-border crime. 

153. The second piece of evidence is the fact that a significant part of the seizures were provided to Mainland Customs.  For reasons which I shall set out later in this judgment I find that these seizures were provided by C&E in order to assist and carry forward its own investigation and to assist their Mainland counterparts in their side of this joint investigation.

154. In my view it is beyond doubt that C&E was legitimately conducting an investigation into criminal offences it suspected were being committed in Hong Kong.  The commission of these offences necessarily involved the culprits in criminal activity in both Hong Kong and the Mainland.  In these circumstances it made sense for C&E and Mainland Customs to conduct a joint investigation.  This much is commonsense and uncontroversial.  But, a joint investigation means helping one another as part of the process of working together.  This will involve the sharing of intelligence and making operational decisions which will enable a coordination of their respective investigations.

155. But participating in a joint investigation with each party agreeing to share information that they uncover that may be useful to the other’s investigation is quite a different matter from applying for search warrants for the dominant or primary purpose of assisting the other’s investigation.  Implicit in this conduct is a deliberate misleading of the judicial officer by falsely representing to him, in order to obtain the issue of the warrant, that there are reasonable grounds for suspecting that in the premises for which approval is sought to enter and search, there is evidence of an offence or offences committed in Hong Kong.

156. I regard such an allegation as inherently improbable and before I could be satisfied even on the lower civil standard of a preponderance of probability that it was true, I would need more compelling evidence than that adduced by the applicants.  In this respect it is particularly pertinent that there is no evidence that the seizures found in any one of the premises searched related only to the PRC investigation or that C&E officers must have known that the premises from which they were seized were likely to contain materials relevant only to the PRC investigation.

157. It is my view that the fact that there is a joint investigation, even when combined with the fact that subsequently seizures of materials were handed over to Mainland Customs, does not allow of the inference that the warrants were obtained only or primarily or for the dominant purpose of assisting the PRC side of the investigation.  Even if officers contemplated, at the time they applied for the warrants, the possibility that , in accordance with the provisions of the CCA, they would provide, where relevant, copies of seizures effected under the warrants to their Mainland counterparts, I do not regard that fact on its own as rendering unlawful or improper their applications for the warrants.

158. The applicants have not succeeded in showing that there was any impropriety in the decision to apply for these search warrants.

The Decision to Provide Copies of the Seizures to the Mainland Customs

159. Only copies of seizures made under the IEO were provided to Mainland Customs.  No copies of seizures effected under the OSCO warrants were disseminated.  Consequently, in view of my findings on the IEO warrants and the constitutionality of section 21(1) of the IEO the issue of why the seizures were copied to Mainland Customs is no longer an issue that needs to be addressed.  Nevertheless, in case I am wrong in any of my conclusions on the legality of the warrants or the constitutionality of section 21(1) I think I should say how I would have decided this aspect of the judicial review had it been necessary for me to do so.

160. As a starting point it is worth reminding ourselves that there is nothing unusual in a LEA executing search warrants and affecting seizures under them in the course of conducting a criminal investigation.  Nor is there anything unusual in a LEA showing its seizures to others as part of its investigation.  That’s how the LEA obtains evidence in relation to its seizures and a better understanding of the relevance of the seizures to the criminal activity being investigated.  The LEA would not normally relinquish possession of the original seizure as it does not own it but is only being allowed a temporary possession of it.  Once the seizure is no longer needed for the criminal investigation or any prosecution flowing from it, then it must be returned to its owner or otherwise disposed of in accordance with a court order.

161. Thus, there is nothing improper in C&E seeking the assistance of the Mainland Customs in respect of its seizures if this was done in order to advance the C&E investigation, and there is nothing wrong in providing Mainland Customs with copies of the seizures if this is necessary to obtain their assistance in respect of them.  The question is, was this the only reason the C&E approached Mainland Customs in respect of these seizures.

162. As the evidence emerged from the witnesses in this case a number of things became quite apparent to me.

163. First, there appeared to exist in the minds of the C&E officers a perception that the CCA legitimized their actions of providing copies of seized material to Mainland Customs for them to use for their own private purposes. Of course it does not.  It is purely an administrative arrangement and has no force of law.  If legal justification is needed for the provision of this material it must be found elsewhere than in the CCA.  No such legal justification can be found in the IEO.  There is nothing in this ordinance which allows the C&E Department to disseminate materials seized pursuant to its provisions to third parties other than for the purpose for which the materials were seized.  This is to be contrasted with the position in section 6(2)(b) and (4) of OSCO which authorizes the Secretary of Justice, in certain circumstances, to disseminate seized materials to external LEAs.  No such similar provision exists in the IEO.

164. In the absence of a specific statutory provision the seized materials cannot be used, including being disseminated to third parties, for a purpose other than that for which the LEA had authority to seize them.  The authority to seize them is limited to the LEA’s authority to investigate crime which is itself limited to offences occurring within its jurisdiction which, other than some extra-territorial crimes, will be offences committed within the territorial boundaries of Hong Kong or otherwise justiciable here.  All of this was made clear by the Court of Appeal in Attorney General v Ocean Timber Transportation Ltd [1979] HKLR 298.  At pages 300-301 Huggins JA said:

“The first contention on behalf of the Attorney General was that once the police had lawfully seized documents they were permitted to disclose them, either directly or by way of copies, to whomsoever they thought fit. In the alternative it was argued that they were permitted to disclose the seized documents to the police force of a friendly state within the Commonwealth for the purpose of investigating suspected crimes within the jurisdiction of that state.

I reject both contentions on the ground that where a statute authorizes an official to do an act which necessarily interferes with the general rights of one of the Queen’s subjects such interference must not exceed what is reasonably necessary to attain the object of the act authorized ...

The object of the seizure is to enable the police to obtain evidence which may assist in the conviction of a person for an offence with which he is charged or of which he is reasonably suspected to be guilty. However, such offence must have been an offence for which the person is triable in the courts of Hong Kong: it is not (and could not properly) be argued that the police in Hong Kong have a general power to apprehend persons for offences committed abroad. It follows that no warrant could have been obtained to search for documents which would merely throw light on the character or activities of a person liable to apprehension in Fiji but not in Hong Kong. If the police could not lawfully have obtained a warrant to search for such documents at all, they may not, having obtained possession of documents under the sub-section lawfully, use them for a purpose which would not otherwise have been lawful. The documents in this case were in the possession of the Respondent. The police had authority to take custody of them for a specific purpose and to that extent - but only to that extent - the right of the Respondent to possession was suspended.”

165. I also note that in Ho Shau Hong v Commissioner of Police & Anor [1987] HKLR 96 Power J (as he then was) expressed the view at page 105G-H that the public interest in the form of the right of the citizen to be secure in their homes and offices was of fundamental importance and that:

“... there is no competing public interest of sufficient gravity to outweigh that interest and that this interest requires that evidence gathered for the purpose of prosecuting criminal offences by police under warrants which allow them to enter private premises be privileged, except when used for the prosecution of those offences.”

166. The consequence of these legal principles is that a LEA cannot do whatever it likes with materials seized by it in the course of executing search warrants, but will normally be limited in the use it can make of them by the purposes for which they were seized, namely the investigation and prosecution of the criminal conduct as described in the Information placed before the judicial officer who issued the warrant or any other criminal conduct uncovered in the course of that criminal investigation.[18]

167. When a LEA seizes privately owned property pursuant to a search warrant, it does not become the owner of the property but only its temporary custodian and all the property and privacy rights attached to it continue whilst the property remains seized and in the custody of the LEA.  The owner is not entitled to the immediate redelivery of his property but he still has the remainder of the possessory right over the seized property.[19]

168. The second matter that became apparent to me is that there appears to exist in the minds of the C&E officers a belief that if the seized material is described as “intelligence” and a caveat placed on limiting its use to effectively an intelligence purpose, then it is lawful to provide it under the CCA to Mainland Customs.  In my view such a belief is in direct conflict with the fundamental principles of the law of search and seizure; namely that property seized under a lawful search does not cease to be the property of its owner; the LEA seizing it may only retain it for as long as it is needed for the investigation or any prosecution flowing from it; the LEA is under an obligation to return the seized property to its owner unless a court orders otherwise and the LEA may only use the property for the purpose for which it was seized.

169. Added to this is the protection which the common law has developed in respect of property seized under warrant, namely that there exists a duty of confidentiality that is owed by the seizing LEA to the person entitled to the property.  In HKSAR v Lee Ming Tee & Anor (2001) 4 HKCFAR 133 at page 158D-G the Court of Final Appeal quoted with approval the following words of Sir Nicholas Browne-Wilkinson VC at trial that had been cited with approval by Dillon LJ in the Court of Appeal in Marcel v Commissioner of Policeof the Metropolis [1992] Ch 225 at pages 255-6:

“... there manifestly must be some limitation on the purposes for which seized documents can be used. Search and seizure under statutory powers constitute fundamental infringements of the individual's immunity from interference by the state with his property and privacy - fundamental human rights. Where there is a public interest which requires some impairment of those rights, Parliament legislates to permit such impairment. But, in the absence of clear words, in my judgment Parliament cannot be assumed to have legislated so as to interfere with the basic rights of the individual to a greater extent than is necessary to secure the protection of that public interest. In the case of this Act, it is plainly necessary to trench upon the individual's right to his property and privacy for the purpose of permitting the police to investigate and prosecute crime; hence the powers conferred by Part II of the Act. But in my judgment Parliament should not be taken to have authorised use of seized documents for any purpose the police think fit.”

170. The Court of Appeal in the Marcel case said that in respect of seizures effected by a search warrant the LEA owed a duty of confidentiality to the owners of the seizures and that duty is of the “same character as that which formed the basis of the House of Lords decision in Attorney General v Guardian Newspapers Ltd(No.2) [1990] 1 AC 109”.[20]

171. Thus, it seems to me that describing the seized material as “intelligence” and providing it for a limited purpose to another not authorized to receive it, cannot, and does not, transform the seizures into something they are not, or cause them to lose all the personal property and privacy rights that attached to them at the time of their seizure, or extinguishes the duty of confidentiality that the seizing LEA owes in respect of them.

172. Of course some seized property such as bank and business records will contain a mine of information but access to this information is only obtained pursuant to statutory powers and judicial process.  This personal information does not cease to be the private information of its owner simply because it is contained in documents seized under lawful compulsion.  I am of the view, therefore, that it would be equally contrary to fundamental principles of search warrant law to allow a LEA to derive information from materials acquired under compulsive process, to characterize it as “intelligence” and then to pass it to third parties not otherwise authorized by law to receive it.

173. In defence of C&E’s actions Mr Pang SC, for the respondents argued that “there is no general prohibition against derivative use of materials obtained by compulsion in Hong Kong, unlike in other jurisdictions e.g. Canada/USA.” In respect of the derivative use made of the seizures by Mainland Customs the Mr Pang said “it is unrealistic and artificial that the Mainland authorities turn a blind eye to the utility of information contained in material delivered to them for a Hong Kong investigatory purpose.”

174. I do not agree.  Derivative use is of course permissible by the LEA who executed the search warrants and thereby became possessed of the seized materials.  Here that is the C&E.  There is nothing at all unusual about a law enforcement officer using information acquired in the course of an investigation, including derivatively obtained information, to carry that investigation forward.  That is what investigators do.  But where they acquire materials compulsorily they come under a number of obligations in respect of those materials as I have sought to demonstrate.

175. One of those obligations is not to relinquish possession of the materials into the hands of a third party not otherwise authorized by law to receive them.  If it is necessary to do so as part of the LEA’s investigation then the LEA who compulsorily acquired the material remains under a continuing obligation to ensure that the rights of the person from whom they were acquired are respected.

176. Where it is necessary for the seizing LEA to temporarily relinquish possession of the compulsorily acquired materials to a third party, that third party does not have the right to make use of them for its own private purposes.  The third party, not being authorized by law to acquire possession of the materials for itself, cannot make use of them for its own private purposes and that includes making derivative use of the information contained in them. If the third party is unwilling to receive the materials on these conditions or cannot be trusted to abide by these conditions then the LEA who compulsorily acquired the materials must not, because of the obligations to which it is subject in respect of the materials, hand them over to that third party.  This is a very important duty of the LEA for whilst it has temporary possession of the seized materials it acts a guardian of the rights of the person to whom those materials must ultimately be returned.

177. It is these misconceptions under which in my view C&E officers labored that, when set in the context of a joint investigation, explains their handling of the seized materials.  This is apparent from the evidence of the C&E officers.  When Assistant Superintendent Lai was being cross-examined the following exchange took place between he and Mr Bell SC for the applicants: 

“Q. Mr Lai did you believe that the Customs Co-operation Agreement gave the CED the right to provide intelligence to PRC Customs in the form of documents?

A. I believe so.

Q. Did that include documents that had been seized pursuant to search warrants, was that your understanding?

A. Yes.”

178. In the course of testifying to the assistance rendered by their Mainland counterparts the following exchange took place between the Court and Assistant Superintendent Lai:

“Court: Superintendent, it would have been a two-way street surely. You would have given them information?

A. We made copies of our seizures to them.”

And later in Assistant Superintendent Lai’s cross-examination:

“Court: Superintendent, is it fair to say that in respect of any materials and information you acquire in the course of your investigations you would regard them as intelligence if they are going to be used for an intelligence purpose.

A. Yes.”

Senior Investigator Li Kin Kei expressed a similar view:

“Q. Was it your understanding that they were entitled to make use of these documents for their own purposes because of the Customs Co-operation Agreement?

A.  The other way round, were not, but they could make use of those intelligence.”

179. There is no doubt in my mind that, believing that they were entitled, pursuant to the CCA, to share the seized materials with Mainland Customs as long as a caveat was put on their use, and believing that because of the caveat put on their use it was legitimate to regard the seized materials as intelligence only, they provided copies of the seized materials to Mainland Customs.  I find they had dual purposes in doing so.  The first was to seek the assistance of Mainland Customs in respect of the seizures so as to carry forward the Hong Kong side of the joint investigation and the second was to assist Mainland Customs to carry forward the Mainland side of the joint investigation.  This is an irresistible and the only reasonable inference that can be drawn from the evidence and the only realistic view of what took place.

180. These dual purposes were so inextricably intermingled with one another that they cannot be separated out.  To describe one as the dominant purpose is, to my mind, unrealistic.  Each purpose was equally important.  Both Customs authorities had made requests of each other for the exchange of intelligence and I have no doubt that the copies of the seizures were provided in compliance with the obligations that C&E had under the CCA as well as for the purpose of obtaining the assistance they needed for the Hong Kong side of the investigation.  In my view the way in which the C&E provided these materials was unlawful. 

Conclusion

181. As long ago as 1979 in the Ocean Timber case the Court of Appeal recognized the need for legislation in this important area of law enforcement activity. At page 303 of the report Huggins JA said:

“The time may have come when it is desirable to extend the powers of the Royal Hong Kong Police so that they can lawfully give greater assistance to other police forces in investigating crimes suspected to have been committed outside Hong Kong. If so, it is a matter for the Legislature, who will decide the nature of the powers and the conditions for their exercise.”

182. That time did come and Hong Kong now has the Mutual Legal Assistance in Criminal Matters Ordinance, Cap 525.  But section 3(1) of that ordinance states that it shall not apply “to the provision or obtaining of assistance in criminal matters between Hong Kong and any other part of the People’s Republic of China”.  The only recourse available to law enforcement in their dealings with their Mainland counterparts is the court‑to‑court letter of request mechanism – hardly a satisfactory mechanism for effective trans-national criminal investigations in the modern age.  However, until such time as the legislature enacts a mutual legal assistance in criminal matters regime between Hong Kong and the Mainland our LEAs must abide by the current common law.  In this respect I can do no better than to again quote Huggins JA in the Ocean Timber case.  In prescient words that decades later resonate with the circumstances of the current investigation and the dilemma in which the C&E officers found themselves, he said at page 300:

“Here I would interpose that nothing I am about to say should be construed as discouraging the police from extending to their counterparts in other states, directly or through Interpol, every assistance they can, provided only that they do not thereby put themselves outside the law of Hong Kong. In particular it must be noted that the documents in this case are the property of the Respondent. The Royal Hong Kong Police, if they think fit, may share any documents which belong to them with other police forces, provided always that there is no statutory limitation on the use which may be made of any particular class of documents. As criminals seek to take more and more advantage of international boundaries so the need for international cooperation in fighting crime increases. Nevertheless, the proviso that the police should not put themselves outside the law of Hong Kong is important, for law enforcement authorities must never regard themselves as above the law which they seek to enforce. There lies chaos.”

Relief

183. The only issue that remains is to determine the relief that I should grant.  In respect of the issue of damages the parties asked that this be determined after I had issued my judgment on the merits of the judicial review and determined the other areas of relief.  On the resumed hearing of this case I shall hear the parties on the order I should make in respect of the relief sought in the form of damages.

184. In respect of the other relief sought:

(i)  I declare that search warrants numbered 3, 4 and 9 purportedly issued by a magistrate under section 22(2) of the IEO in respect of commercial premises were issued without lawful authority and I quash them.

(ii)  I declare that search warrants numbered 1, 2, 5, 8, 10, 11, 12, 13, 14 and 16, not being executed within a reasonable time from the date of their issue, had lapsed by the date of their execution and I quash them.  I declare that all seizures effected under these warrants were illegally made and must be returned to the persons from whom they were seized.  Insofar as copies of these seizures have been provided to others I order that the Commissioner of Customs and Excise use his best endeavours to retrieve all such documents from those others.

(iii)  I declare that section 21(1) of the IEO is inconsistent with Article 29 of the Basic Law and is thus unconstitutional and that in so far as the entries onto the premises that were made in warrants 3, 4 and 9 depend upon section 21(1) for their legitimacy, those entries were unlawful and hence any seizures effected therein were effected in the course of a trespassory entry and search and must be returned to the persons from whom they were seized. 

185. For the sake of clarity I should state that warrants numbered 6, 7 and 15 are valid.  There is nothing about their contents that is fatal to their validity; they were executed within a reasonable time of their issue; and, being all OSCO warrants, none of the seizures effected under them were shared by C&E with their Mainland counterparts.

186. I make an order nisi that the respondents pay the applicants costs of these proceedings.

[1] There are also other powers contained in section 21(2), such as a power to seize vessels and to require information, but it is the power in section 21(2)(a) which is relevant to the warrants under consideration.

[2]Applebee (1995) 79 A Crim R 554 at 557.

[3] It should be mentioned that in this case the Crown agreed that some time limit for execution of the warrant must be implied.

[4] The respondents rely on the statement by Richard Stone in his book, The Law of Entry, Search, and Seizure, 5^th edition at paragraph 1.55, page 20:

“… it is submitted that unless a time limit is imposed by statute … a warrant for entry would likewise remain in force until executed or withdrawn.”

  However, the author provides no authority or reasoning for this submission.

[5]HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 at page 438B and D-E.

[6]Lau Cheong & Anor v HKSAR (2002) 5 HKCFAR 415 at 436H.

[7] I note that in R v Yu Yem Kin (1994) 4 HKPLR 75, at 96, Jerome Chan J said he was “wholly satisfied that there is nothing per se arbitrary about a statutory power which can only be exercised upon the existence of a reasonable suspicion on the part of the person entrusted with such power.”

[8]HKSAR v Lam Kwong Wai & Anor (2006) 9 HKCFAR 574 at 593B-C.

[9] See Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 and HKSAR v Ng Po On (2008) 11 HKCFAR 91.

[10]Hunter et al v Southam Inc. (1984) 11 DLR 641 at 654.

[11] This comment was made by the Secretary for Security on the Second Reading of the Dangerous Drugs (Amendment) Bill 1994 – see Hong Kong Hansard, 18 May 1994 at page 3875.

[12]R v Rao 9 D.L.R. (4^th) 542 at page 559.

[13] Ibid, at page 565.

[14] Ibid, at page 566.

[15] At page 567 of his judgment Martin JA said of it:

   “The legitimate expectation of privacy in one’s home or office is one of the most valued rights of the individual afforded protection by a democratic society.”

[16] Ibid, at page 567.

[17] Ibid, at page 565.

[18] I say “normally be limited” because it may be that a seizing LEA is entitled to pass seized material or information contained in them to another LEA or regulatory body in its jurisdiction if that LEA or regulatory body is tasked to investigate the specific conduct revealed by the disseminated materials or the information obtained derivatively from them.  See the comment by Sir Nicolas Browne‑Wilkinson VC in Marcel v Commissioner of Police [1992] Ch 225 at 235D-E.

[19]Attorney General v Ocean Timber Transportation Ltd [1979] HKLR 298.

[20]Marcel v Commissioner of Police of the Metropolis [1992] Ch 255 at page 261B-C.  In Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 Lord Goff of Chievely said at page 281B-C:

  “… a duty of confidentiality arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”