“Y” v. The Commissioner of the Independent Commission Against Corruption

HCAL 2837/2018

[2020] HKCFI 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2837 OF 2018

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Before:  Hon Li J in Court

Date of Hearing:  11 September 2019

Date of Judgment:  17 January 2020

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J U D G M E N T

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1.The applicant’s home was searched in the morning of 29 August 2018. Officers from the Independent Commission Against Corruption (“ICAC”) entered and searched the premises under a warrant granted by a magistrate pursuant to s.17(1A) of the Prevention of Bribery Ordinance, Cap. 201 (“POBO”).

2.The warrant set out that the magistrate had reasonable cause to believe that there were materials which were or contained evidence of “offering an advantage to and accepting an advantage by a public servant” in the residence of the applicant.^[1]

3.The warrant empowered the officers to search materials including reports, correspondence records, accounts records, bank records, mobile phones, computers, documents or data processed or stored in a computer or electronic devices which were or contained evidence of the alleged offences.^[2]

4.Eventually, items including notebook computers and mobile phones were seized.^[3]  They were all sealed pending the outcome of subsequent court proceedings.

5.Mr. Jin Pao, SC, for the applicant sought to quash the search warrant on two main grounds:

a.  The warrant failed to specify the nature of the offence.  It only specified the statutory provisions without any particulars of the offence, time frame and parties involved.  

b.  Given that the warrant was invalid, the seizure was unlawful.

6.Ms. Draycott, SC, for the respondent pointed out that:

a.  The POBO did not require the subject matter of the search, the nature of the alleged offences and the time frame of the offences to be specified.

b.  The nature of the alleged offences was explained orally to the applicant and his lawyers shortly before the search.  They were fully aware of the nature of the offences and the materials to be searched.

Parties’ arguments

7.Mr. Pao indicated at the outset that the applicant did not rely on the ground of “Legal Professional Privilege” in this application.  That issue could be deferred for a later application.

8.Mr. Pao criticized that the ICAC officers^[4] executing the warrant only explained the warrant in very limited terms.  The applicant had no idea of the particulars of the alleged offences.  

9.According to the affirmation of the applicant, the ICAC officer, Ms. Wong, explained in these terms:

“ ...Ms. Wong then told me verbally something to the effect that there were allegations about a conspiracy between myself (the applicant) and Z, a senior officer at P, who is also my sibling, regarding an intended transaction concerning A’s acquisition of B which was subject to P’s approval...”[5]

10.The applicant went on to stress in the same paragraph of his affirmation:

“ ...The intended transaction, as I understand it, was in effect disapproved by P and later terminated in March 2017. I should emphasise that I still have no idea what the precise allegations are, what is said that I have done and when, etc., but I will leave my response to these, if necessary, to a later dated (sic) as and when there is better clarity on the allegations. I notice that the information which the Commission’s officers verbally conveyed to me was not in the Warrant.”[6] (my emphasis)

11.Mr. Pao argued that the applicant should be entitled to read the information laid before the magistrate in support of the warrant application.  He should be informed whether the investigation was ongoing or completed.  This was important especially when the law required that the magistrate must have “reasonable cause to believe” that there was evidence of the alleged offence under ss. 4(1) and 4(2) of POBO.  

12.Ms. Draycott, SC, pointed out that the POBO did not require any particular form or content for a warrant.  There were cogent reasons for limiting the details in the warrant.  It was important to strike a balance between the difficulty in investigating corruption offences on the one hand and to protect the reputation of the suspects on the other.  The ICAC would strictly observe the requirement of s.30 of POBO.^[7]  Although the information before the magistrate was not on oath, it was solemnly declared to be true by the officer.  The magistrate signed and accepted it accordingly.  

Discussion

13.In Philip KH Wong, Kennedy YH Wong & Co v Commissioner of Independent Commission Against Corruption (No. 2)^[8], Stock VP^[9] set down the backdrop for examining the validity of search warrants as follows:

“Key principles

47. The starting principle is the inviolability of private premises from arbitrary intrusion. The right to security of one’s home and of the place in which one works is a right historically protected by the common law and now widely recognized in constitutional and other human rights instruments. It is therefore incumbent on every magistrate or judge to whom an application to permit such an intrusion is made to remind himself of the seriousness of the act which he is asked to authorize and not to permit the apparent simplicity of the procedure or the frequency with which it is invoked to devalue its significance. The duty upon him has been described as “a high duty... to protect individual citizens from arbitrary infringements of their liberties, as well as a responsibility to facilitate the conviction of the guilty in the interests of the whole of society.”[10]

48. The fulfilment of this duty means that the task must be approached judicially; in other words, the judicial officer must apply his mind to the individual circumstances of the case and exercise his own judgment. He must act within the boundaries of his powers as prescribed by the statute pursuant to which the application is made and, if an intrusion is, within those boundaries, justified by the facts ascertained by him, he should ensure that the intrusion authorized goes no further than is reasonably necessary for the permissible objective and that the parameters of the authorization are sufficiently clear on the face of the warrant, so that the person executing the warrant and the person upon whom it is served knows what is and what is not permitted.

49. Where it is intended to search premises of a solicitor’s firm or of counsel’s chambers or where otherwise there is cause for a particular belief that the material sought is likely to include privileged information, that fact must be disclosed by the applicant to the magistrate...”

14.These principles have been repeatedly stressed by the Court of Final Appeal in P v Commissioner of ICAC^[11] per Li CJ^[12] and by the Court of Appeal in Apple Daily Ltd v Commissioner of ICAC^[13] per Chan CJHC^[14].

15.In the more recent case of Keen Lloyd Holdings & others v Commissioner of Customs and Excise,^[15] another division of the Court of Appeal again stressed the importance of judicial gate-keeping in the vetting of an application for a warrant.  This procedure provided important safeguard against arbitrary interference with the right of privacy guaranteed by article 14 of the HKBOR and Article 29 of the Basic Law.  The Court of Appeal agreed with the comment of Stock VP cited above.  

16.The Phillip Wong case concerned a search warrant issued under s.10B of the Independent Commission Against Corruption Ordinance, Cap. 204 (ICACO) for searching a solicitor’s office.  Under that section, before issuing a search warrant, a magistrate must be satisfied by information on oath that there is reason to believe that there is in any premises or place anything which is or contains evidence of the commission of any of the offences referred to in section 10.  This section is without prejudice to s.17 of POBO.

17.The present case is under s.17(1A) of POBO.  Under s.17(1A), a court may issue a search warrant if it is satisfied that there is reasonable cause to believe that in any premises or place anything which is or contains evidence of an offence under the POBO.

18.The main difference is that s.10B requires information on oath while s.17(1A) does not.  In my view, this would not weaken the role of judicial gate-keeping.  The key principles apply equally under both sections.  

19.In the present case, the magistrate had considered the information in support of the application.  She was satisfied that there was reasonable cause to believe there were materials which were or contained evidence of section 4 of POBO.  There is no reason to doubt her assessment.

20.I appreciate that the information in support of the application was not available to the applicant.  This kind of information has been held to be covered by public interest immunity as long as the investigation is on-going.  It would not lapse even at the stage of inter parte application to set aside the warrant.^[16]  

21.Mr. Pao pointed out that none of the ICAC officers in their affirmations confirmed that the investigation was on-going.  This might affect the coverage of public interest immunity.  I accept that the ICAC officers had not indicated in clear terms that the investigation was on-going.  My reading of the affirmations left me in no doubt that it must be the case or else there would be no need to search for further evidence in the applicant’s premises.  I do not think the applicant is entitled to a copy of the information in support of the application for the search warrant.

22.Mr. Pao complained that the warrant card of the officer who executed the search warrant was not exhibited.  This is a statutory requirement which might affect the lawfulness of the search.  

23.In the affirmation of Ms. Wong Lo Kam, she recalled showing her warrant card to the applicant before entering the premises.^[17]  That in my view is sufficient to prove that she was an officer authorized under s.8 of the ICAC Ordinance.  In fact, s.17(1A) only requires the investigation officer to be named in the warrant.  There is no special requirement that the warrant card be exhibited.  In my view, even if there is such a requirement, the non-compliance would not cause any prejudice or leading to substantial abuse.  I respectfully adopt the approach of the Privy Council in A-G of Jamaica v Williams with which Chan CJHC agreed in Apple Daily Ltd.^[18]  

“Although the courts may sometimes feel frustrated by their inability to go behind the curtain of the recital that the justice was duly satisfied and to examine the substance of whether reasonable grounds for suspicion existed their Lordships think that it would be wrong to try to compensate by creating formal requirements for the validity of a warrant which the statute itself does not impose. In so doing, there is a risk of having the worst of both worlds: the intention of the legislature to promote the investigation of crime may be frustrated on technical and arbitrary grounds, while the courts, in cases in which the outward formalities have been observed, remain incapable of protecting the substance of the individual right conferred by the Constitution. The alleged defects in the warrants are all errors of drafting, no doubt on the part of the officers of the revenue protection division by whom it was prepared for submission to the justice. So far as they may have led to substantive abuses, it is of course right that the applicants should have a remedy. But in a case like this in which they have caused little or no prejudice to the applicants, their Lordships think it would be wrong to treat them as punishable by invalidity of the entire search...”[19]

What information should be stated in a search warrant?

24.In this regard, it is important to note the comment of Chan CJHC in Apple Daily Ltd setting out some general principles:

“In my view, what the House of Lords decided in IRC v Rossmisnster Ltd & Another was:

(1) It is a matter of construction of the empowering statute to decide: (a) the scope of the powers of the issuing authority; (b) the conditions which have to be satisfied for the issue of the warrant; and (c) what is to be stated in a warrant. The second and third matters go to what are sometimes called the essential and formal validity of the warrant respectively;

(2) If it appears that a warrant falls strictly and exactly within the provisions of the empowering statute in that all the conditions have been satisfied, it would be upheld;

(3) If the empowering statute does not require any particular form for the warrant, it would be held valid so long as it contains the basis details which are provided for in the statute.

The Privy Council in A-G Jamaica v Williams [1998] AC 351 held that if the requirements of the empowering statute have been complied with, the validity of the warrant would not be affected by a trivial excess of power, the absence of a reference in the warrant to the power under which it is issued or any errors of drafting not leading to substantive abuse.”[20]

25.In Philip Wong, Stock VP reviewed various authorities and decided the basic information to be included in a valid search warrant.  Section 10B, ICACO, did not prescribe any form for a warrant.  His Lordship concluded that:  

(a)  The warrant must set out the offence based on which it was issued.

(b)The warrant must be directed to an officer duly appointed under s.8 of ICACO.

(c)  The warrant must show on the face that the Magistrate was satisfied by the information on oath that there was material which contained evidence of the commission of an offence referred to in s.10 of ICACO.

(d)The warrant must clearly identify the place to be searched.

(e)  The warrant must sufficiently indicate the articles to be sought.

(f)  Any further requirement must be justified by necessary implication of the ICACO.^[21]

26.In my judgment, the same principle applies to the present case.  The wording of s.17(1A) POBO is as follows:

“Where on an application under subsection (1) the court is satisfied that there is reasonable cause to believe that in any premises or place there is anything which is or contains evidence of an offence under this Ordinance, the court may by warrant directed to an investigating officer named in the warrant, empower such officer and any other investigating officer, to enter such premises or place, by force if necessary, and search the same.”

27.Accordingly, the basic information which should be stated in the warrant issued under s.17(1A) is: the alleged offence; the Magistrate has reasonable cause to believe that there are materials which are or contain evidence of the alleged offence; the premises to be searched; the officer empowered to search and the description of the materials to be searched.

28.In my view, the warrant contains all the basic information stated above.

29.Mr. Pao complained that the particulars of the offence were not set out in the warrant.  The explanation by the officer was in very limited terms.  

30.According to the affirmation of Ms. Wong Lo Kam, after gaining entry to the premises, she explained to the applicant that he was suspected of committing an offence contrary to section 4(2) of the POBO and section 159A of the Crimes Ordinance, Cap. 200 and give a brief description on the allegation.^[22]  The applicant indicated he understood.  Although Ms. Wong did not set out the exact terms of her explanation, I can safely assume that it must be similar to what was recorded in paragraph 9 of her affirmation as the content tallies with the recollection of the applicant in his affirmation cited above^[23]:

“The basis of the allegation is as follows. Z is a public servant working at the holding company of P. A was a body seeking approval from the holding company of P for a transaction with B. It was alleged that Z and the Applicant conspired to accept advantages from A in order that the holding company of P would approve the transaction between A and B...”

31.Although Ms. Wong did not mention the time frame of the alleged offence in her affirmation, the applicant’s response shows that he was fully aware of the necessary details.  He stressed in the paragraph 15 of his affirmation:

“ ...The intended transaction, as I understand it, was in effect disapproved by P and later terminated in March 2017. I should emphasise that I still have no idea what the precise allegations are, what is said that I have done and when, etc., but I will leave my response to these, if necessary, to a later dated (sic) as and when there is better clarity on the allegations. I notice that the information which the Commission’s officers verbally conveyed to me was not in the Warrant.”[24] (my emphasis)

32.Ms. Wong subsequently explained the alleged offence to the applicant’s legal representatives who understood the alleged offence and raised no objection to the search.^[25]

33.Given that the investigation was on-going and the applicant was not yet charged with any offence, it is impracticable for the officer to set out the particulars of the alleged offence at this stage.  I agree with Ms. Draycott that the oral explanation above is sufficient to inform the applicant the reasons for the search.

34.Mr. Pao also complained that the warrant did not specify sufficiently the materials to be searched.  It was too general.  

35.The warrant sets out various forms of the materials.  The scope is limited to materials which are or contain evidence of the alleged offences.  This is in accordance with the wording of s.17(1A) which allows ‘search of anything which is or contains evidence of an offence under this Ordinance’.  In assessing the sufficiency of description in this context, one must take a pragmatic approach.  Depending on the stage of investigation, it may be difficult, if not impossible, for an officer to specify a particular document which is relevant.  There must be sufficient breadth in the description to ensure a meaningful search.  In my view, the description of materials is sufficient given the circumstances of the present case.

Conclusion

36.Having considered the above, I ruled that the warrant is lawful.  There is no need to consider other grounds submitted by Mr. Pao.

37.In the circumstances, I refuse leave for judicial review.  The case is not reasonably arguable.  There is no realistic prospect of success.

38.I make the following order:

a.  Leave for judicial review is refused.

b.  Costs order nisi to the respondent.

Mr Jin Pao SC, leading Mr Timothy Parker and Josh Baker, instructed by Messrs Norton Rose Fulbright Hong Kong, for the applicant

Ms Charlotte Draycott SC, leading Mr Jonathan Kwan, for the putative respondent