Apple Daily Ltd. v. The Commissioner of the Independent Commission Against Corruption

CACV 344/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 344 OF 1999

(ON APPEAL FROM HCMP 7315 OF 1999)

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Coram: Hon Chan CJHC, Nazareth VP and Keith JA in Court

Date of Hearing : 1 December 1999

Date of Judgment : 1 December 1999

Date of Handing Down Reasons for Judgment : 22 December 1999

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J U D G M E N T

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Hon Chan CJHC:

1. This is an appeal by Apple Daily Limited (Apple Daily) from the decision of Gall J refusing to grant an interim order with regard to the documents, articles and materials which the Independent Commission Against Corruption (ICAC) had seized pursuant to 2 search warrants issued by the judge. At the end of the hearing on 1 December 1999, we allowed the appeal and granted an interim order that the seized items be kept in locked premises and that the ICAC be prohibited from making use of the seized items pending the determination of an application by Apple Daily under Order 32 rule 6 of the Rules of the High Court and upon the undertaking of Apple Daily through its counsel that it would issue such an application by 4.30 p.m. on that day and to process the application with due diligence and expedition. We indicated that we would give our reasons in writing later. This we now do.

Events leading to the present appeal

2. The events leading to the present appeal are as follows. On 25 November 1999, upon the ex parte application by the ICAC, Gall J ordered 2 search warrants to be issued. The 1st warrant was issued pursuant to section 17(1) of the Prevention of Bribery Ordinance, Cap 201 and the 2nd pursuant to section 85 of the Interpretation and General Clauses Ordinance, Cap 1. They were both warrants for the search of the premises at 8 Chun Yip Street, Tseung Kwan O Industrial Building (the premises).

3. On 29 November 1999, officers of the ICAC executed the warrants and searched the premises. They seized some documents, articles and materials from the premises. They also made some arrests. For the purpose of this appeal, I shall refer to these documents, articles and materials as the seized items.

4. In the evening of that day (at about 10 p.m.), Apple Daily applied to Gall J ex parte on notice to the ICAC for an interim injunction restraining the officers of the ICAC from making use of the seized items. The ICAC did not turn up. The judge made an order to the effect that the seized items be retained in locked premises and not be used for whatever purpose pending a further order. He also directed that the matter be further argued on the following day at 2.30 p.m.

5. At the appointed time on 30 November 1999, the parties appeared before the judge. Counsel for Apple Daily applied for an extension of that order pending the disposal of any proceedings to be instituted against the ICAC for an order to set aside the 2 search warrants, a declaration that the continued retention of the items seized pursuant to the warrants was unlawful, an order that the same be returned to Apple Daily and an order for damages. The judge heard arguments from both sides and refused to continue the injunction as sought.

6. Immediately after that hearing, Apple Daily on notice to the ICAC came before me seeking an interim order in similar terms as the order previously obtained from Gall J pending an appeal to the Court of Appeal against the earlier decision of Gall J refusing the application for injunction. After hearing the parties, I granted an interim order until the hearing of the appeal at 10 a.m. on 1 December 1999.

Contents of the 2 warrants

7. The 1st warrant (the s.17 warrant) authorised 5 named officers of the ICAC to enter, by force if necessary, the premises and "to search for, seize and retain any bank record, accounts record, company book and any kind of record, document, article or object, or any record of data processed or stored in a computer or other electronic devices, with immediate access thereto, other than items subject to legal privilege, which is likely to be relevant to the investigation for the purpose of which this search warrant is issued."

8. The 2nd warrant (the s.85 warrant) authorised the same 5 officers to enter by force if necessary the same premises and to "search for, seize and retain any record, document, article or object, or any record of data processed or stored in a computer or other electronic devices, which contains material consists of or includes journalistic material with immediate access thereto, other than items subject to legal privilege, which is likely to be relevant to the investigation for the purpose of which this search warrant is issued."

Any case for an interim order

9. Counsel for Apple Daily submits that the 2 warrants were issued in excess of the judge's powers and the legislative powers in that both warrants authorise the seizure and retention of documents articles and materials which the relevant provisions do not authorise and that such seizure and retention are for a purpose much wider than that permitted by the relevant provisions. Apple Daily intends to institute proceedings to challenge the validity of the 2 warrants. During the meantime, it wants to stop the ICAC from seeing and making use of what they have seized and retained.

10. Counsel submits that there is a reasonable prospect of successfully challenging the validity of the 2 search warrants and that if an injunction is not granted restraining the ICAC from seeing and making use of the seized items pending the determination of the challenge, the ICAC would make use of the same and this would frustrate the purpose of their challenge.

11. The first question which needs to be dealt with at this stage is whether Apple Daily has an arguable case in having the 2 warrants discharged. The learned judge took the view that there was no arguable case. If the judge was right, this appeal fails. On the other hand, if there is an arguable case, it is then necessary to consider whether the court, in the exercise of its discretion, should grant an interim order with regard to the seized items pending the determination of Apple Daily's challenge on the validity of the warrants.

Grounds of challenge

12. The main ground for challenging the validity of the warrants is that they were issued in excess of the powers governing the issue of such warrants conferred by section 17(1) of Cap 201 and section 85 of Cap 1 respectively in that :

(1) section 17 of Cap 201 makes no reference to any power of seizure and hence the judge had no power to order the issue of the s.17 warrant which authorises the officers not only to enter and search the premises but also to seize documents, articles and materials therefrom:

(2) although the ICAC officers are separately authorised under section 10C of the ICAC Ordinance to seize and retain any documents or materials, the power of seizure purported to have been authorised under the s.17 warrant is much wider than that conferred by s.10C;

(3) although s.85 of Cap 1 empowers the judge to authorise seizure, the power of seizure purported to have been authorised under the s.85 warrant is also wider than that conferred in s.10C of the ICAC Ordinance and s.84 of Cap 1 to which s.85 makes reference.

13. Counsel for Apple Daily also criticises the warrants for being too wide in that the address of the premises which are subject to the warrants is extremely vague. It is a 6 storey building which are occupied by a number of companies which are associated with Apple Daily Limited. Although the title appearing in each of the warrants refers to Apple Daily Limited, there is no identification in the warrants as to which parts of the building occupied by Apple Daily Limited are to be searched. As it turned out, quite a number of companies which publish other newspapers and magazines were searched.

Construction of the warrants

14. Every citizen has a right to the protection of his private property. A search warrant authorises an invasion of private property and must therefore be justified by law. See Entick v Carrington (1765) 2 Wils. 275. Justification is usually found in the statutes. 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". See Lord Hoffman in A-G of Jamaica v Williams (PC) [1998] AC 351 at 358.

15. In my view, when a warrant is challenged, the court has an equally important constitutional duty to ensure that the warrant has been validly issued. This involves a construction of the relevant statutory provision which empowers the issue of such warrant to see whether such power has been exceeded and of the warrant in question to see whether its scope has gone beyond the statutory provision. In construing the statutory provision and the warrant, the court shall adopt a strict approach in order to discharge its constitutional duty to protect the citizen's right against any abuse of power. On the other hand, a warrant would not be vitiated by a trivial excess of power, or the absence of a reference in the warrant to the power under which it is issued or errors of drafting not leading to substantive abuse (see A-G of Jamaica v Williams [1998] AC 351, 364).

The s.17 warrant

16. The s.17 warrant was issued pursuant to s.17(1A) of Cap 201. It is accepted by both parties that section 17 does not contain any reference to a power of seizure and hence on the face of the warrant, the judge had no power to authorise the ICAC officers to make any seizure. But counsel for the ICAC argues that the officers are separately authorised to do so under s.10C of the ICAC Ordinance. It is argued that what the warrant seeks to do is to set out the officers' power of seizure which they already have under another statute and that without any reference to a power of seizure in the warrant, the person who is obliged to comply with the warrant would be confused.

17. It must be noted that while s.10C of Cap 201 authorises the seizure of materials which are "believed to be or to contain evidence of any of the offences referred to in section 10" under that ordinance, the s.17 warrant authorises the officers to seize materials which are "likely to be relevant to the investigation for the purpose of which this search warrant is issued".

18. The question is whether the s.17 warrant is invalid because (1) it includes a power of seizure which s.17 does not authorise and (2) the power of seizure stated in the warrant is wider than what the ICAC officers have under s.10C. A number of points arise for consideration. First, whether materials which are likely to be relevant to the investigation are the same as materials believed to be or to contain evidence of a s.10 offence. Second, since the warrant does not state any specific offence, whether the materials to be seized under the warrant relate to the investigation of any s.10 offence. Third, even if the power of seizure had been wrongly included in the warrant, whether this would vitiate the warrant.

19. It is interesting to note that s. 17(1A) of Cap 201 pursuant to which the s.17 warrant was issued adopts, in relation to the search, a similar formula as that in relation to seizure in s.10C of the ICAC Ordinance. That is, there must be a reasonable cause to believe that in the premises to be searched there is anything which is or contains evidence of an offence under that ordinance.

20. Having heard the submissions of counsel for both parties, I take the view that there is clearly an arguable case that the validity of the s.17 warrant is doubtful. For the present purpose, in view of the proceedings which were pending at the time of the appeal, I do not think it is proper for me to express any conclusive view on the matter. Further, in this urgent appeal, counsel for both parties very fairly admitted that they might not have been able to render full assistance to the court. All I need to say at this stage is this. It would seem that the omission of any reference in s. 17 of Cap 201 to the power of seizure is deliberate. This provision intends that a warrant issued under that section does not empower the officer to seize anything found inside premises during the search. The officer's power of seizure comes from s.10C of the ICAC Ordinance and is limited in that it is restricted to the seizure of evidence and that there must be a belief that the thing to be seized is or contains evidence of a suspected offence under s.10 of that ordinance. This power is arguably different from and narrower than the power purported to have been authorised under the s. 17 warrant, bearing also in mind that it is not clear from the warrant what sort of offence is being investigated. It is also arguable that the reference to the power of seizure in the warrant is not merely surplusage but is aimed at indicating to the person to whom the warrant was shown the source of power ICAC officers were armed with when they seized the items in question. Whether what happened in this case amounted to only a "trivial excess of power" or an "error of drafting not leading to substantive abuse" remains to be fully canvassed.

The s.85 warrant

21. This warrant was issued pursuant to s.85 of Cap 1. A warrant issued under this provision authorises a search and seizure of journalistic materials. It is contained in Part XII of the Ordinance which was added in 1995. It would seem that the purpose of this enactment is this. Section 83 provides that the powers of entry, search and seizure of law enforcement agencies under other statutes do not extend to journalistic materials which are to be governed by sections 84 and 85. These latter provisions introduce additional safeguards for such type of materials from search and seizure. This is because in order to obtain a s.85 warrant, certain conditions as set out in sections 84 and 85 have to be satisfied. One of the conditions is that : there are reasonable grounds for believing that the material is likely to be (A) of substantial value to the investigation of the arrestable offence; or (B) relevant evidence in proceedings for the arrestable offence.

22. Having heard the submissions of the parties, I have come to the view that while section 85 permits the issue of a warrant which authorises a seizure, and this makes the warrant issued under this section prima facie valid, the following points are arguable :

(1) the power of seizure conferred by the s.85 warrant is different from and wider than that permitted by the provisions of sections 84 and 85;

(2) for the same reasons as those given in relation to the s.17 warrant, such power of seizure is wider than that conferred by s.10 of the ICAC Ordinance; and

(3) the power of seizure permitted under section 85 are wider than that conferred under s.10C and this seems to be contrary to the intention of the legislation and the express provision of s.85 (4).

23. It is difficult to say what the chances of success would be in putting forth these arguments. But I do not think it can be said that they are not arguable at all.

Discretion

24. The next question I should deal with is whether the court should exercise its discretion in favour of Apple Daily and grant an interim order prohibiting the ICAC from making use of the seized items pending the determination of an application to discharge the warrants. The judge did not have to deal with this question in view of his conclusion. But in view of the conclusion I have reached, I have to deal with this question as well.

25. On the one hand, the ICAC officers are in the middle of an investigation into serious offences. Any delay in such investigation would be contrary to the public interest. On the other hand, if the ICAC officers are permitted to look at the seized items and make use of them, this would not only frustrate the application to set aside the warrant. It would also, counsel argues, have a serious implication on the freedom of expression. This is because what were seized include a lot of journalist materials which may include the sources of information and the identity of informants of a newspaper. Such sources of information will dry up if they are disclosed unnecessarily. I can see the strength of the arguments both ways. What I think tips the balance in this exercise of discretion is the fact that the application can be formulated and filed very quickly and can be heard in a matter of days. I would in these special circumstances grant an interim order keeping the seized items in locked premises and prohibiting the ICAC officers from making use of such items pending the determination of the proposed application.

Conclusion

26. For these reasons, I would allow the appeal and grant the order sought.

Hon Nazareth VP:

27. For reasons indicated in the judgment of the Chief Judge, I also concluded that an interim order of the nature specified by him was appropriate. Since the matter will have to be adjudicated, I say no more.

Hon Keith JA:

28. For the reasons given by Chan CJHC, I agree that this appeal should be allowed and with the order which he proposes. There is nothing which I can usefully add.

Representation:

Mr Ian McWalters, SADPP of the Department of Justice for Respondent (ICAC)

Mr Gerard McCoy SC and Mr Peter Duncan, instructed by Messrs Deacon Graham & James for Appellant (Apple Daily Limited)