Re The Commissioner of the Independent Commission Against Corruption, Ex Parte Apple Daily Ltd.

HCMP007315A/1999

HCMP 7315/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 7315 OF 1999

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Coram: The Hon. Mr Justice Lugar-Mawson in Court

Date(s) of hearing: 7, 8, 9 & 10 December 1999

Date of judgment: 13 December 1999

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J U D G M E N T

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1. Having given my ruling on the preliminary point on 7 December, I now turn to the substantive application.

2. It is first necessary for me to describe the statutory provisions under which both search warrants were applied for and issued, and what powers are given to the authorised officer under each.

3. Section 17 of the Prevention of Bribery Ordinance deals with the issue of search warrants in an investigation conducted by the ICAC. Section 17 provides in subsection (1) that:

"Any investigating officer may for the purposes of an investigation into or proceedings relating to an offence suspected to have been committed under this Ordinance to make an ex parte application to a court for the issue of a warrant under subsection (1A)."

Subsection (1A) provides,

"That where an application under subsection (1) the court is satisfied that there is reasonable cause to believe that in any premises or place that has anything which is or contains evidence of an offence under this ordinance, the court may by warrant direct 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.

4. The application can be either to the Court of First Instance or to a magistrate.

5. There is no power to seize given in Section 17. That arises under Section 10 of the Independent Commission Against Corruption Ordinance. Subsection (10)(1) provides that:

"An officer authorised on that behalf by the Commissioner may without warrant arrest a person if he reasonably suspects that such person is guilty of an offence under this ordinance, or the Prevention of Bribery Ordinance, or the Corrupt and Illegal Practices Ordinance, or being a Crown servant is guilty of an offence of blackmail committed by or through the misuse of office.

6. Subsection 10(2) of Section 10 provides that:

"Where during an investigation by the Commission of a suspected offence under the Prevention of Bribery Ordinance, or of a suspected offence under the Corrupt and Illegal Practices Ordinance, another offence is disclosed, any such officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence, and -

(a) he reasonably suspects that such other offence was connected with or that either directly or indirectly its commission was facilitated by the suspected offence under the Prevention of Bribery Ordinance, or the suspected offence under the Corrupt and Illegal Practices Ordinance as the case may be; or

(b) the other offence is one which is specified for the purposes of this subsection in subsection (5)."

7. And subsection (5) specifies the offences referred to in Section 10(2)(b).

8. Under subsection (10)(C)(i) of the Independent Commission Against Corruption Ordinance,

"An officer authorised in that behalf by the Commissioner may,

(a) search any person if he reasonably suspects that such person is guilty of any of the offences referred to in section 10;

(b) search the premises or place in which any person was arrested under section 10, or the premises or place in which a person who evades arrest therein under section 10 was to be arrested for evidence of any of the offences referred to in that section; and

(c) seize and detain anything which such officer has reason to believe to be or to contain evidence of any of the offences referred to in section 10.

And subsection (10)(3) provides that the powers conferred by subsection (1) shall not derogate from the power conferred on any officer by section 17 of the Prevention of Bribery Ordinance, or a warrant issued under that section.

9. Part XII - that's Roman XII - of the Interpretation and General Clauses Ordinance, Cap. 1, governs the search and seizure of journalistic material.

Under section 82, "journalistic material" means any material acquired or created for the purposes of journalism, and material is only journalistic material for the purposes of Part XII if it is in the possession of a person who acquired or created it for the purposes of journalism. The word "journalism" is not defined in Part XII of the Ordinance.

10. Section 83 provides that a provision in any ordinance which confers on or authorises the issue of a warrant conferring on any person the power to enter any premises and search those premises or any person found on them, or to seize any material, whether of a general or particular kind, shall not - in the absence of an express provision to the contrary contained in that particular provision - be construed as conferring or authorising the issue of a warrant conferring a power to enter premises where the entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material.

11. Section 17 of the Prevention of Bribery Ordinance does not contain a provision authorising entry powers relating to journalistic material. Neither does section 10(1)(C)(i) of the Independent Commission Against Corruption Ordinance contain a provision authorising the seizure of journalistic material.

12. If the applicant for a search warrant wants to search for and seize journalistic material he must therefore apply for a warrant to do so under Part XII of the Interpretation and General Clauses Ordinance.

13. Section 85 deals with the issue of search warrants. It provides that a person on whom there is or may be conferred under a provision in any ordinance, being a provision to which section 83 applies, the power to enter any premises and to search the premises or any person found on the premises, or to seize any material, may apply to a judge of the Court of First Instance or the District Court for the issue of a warrant under subsection (3) authorising him to enter those premises for the purposes of searching for or seizing material which is known or suspected to be journalistic material. The application for a warrant under this section cannot be made unless the person who is specified in Schedule 7 to be a 'directorate disciplined officer' has approved it.

14. And that is provided for in section 85(2).

If on an application under subsection (1) the judge is satisfied,

"(i) that the conditions specified in section 84(3)(a)

(c) and (d)(i) are fulfilled; and

(ii) that one of the further conditions set out in subsection (5) is also fulfilled; or

(b) is satisfied that an order under section 84 relating to the material has not been complied with he may, subject to subsection (4) issue a warrant authorising the applicant to enter onto the premises and to search the premises and any person found on the premises and to seize any material."

15. The conditions to be fulfilled for the purposes of subsection 84(2) are that,

"(a) there are reasonable grounds for believing:

(i) that an arrestable offence has been committed,

(ii) that there is material which consists of or includes material known or suspected to be journalistic material on premises specified in the application,

(iii)that the material is likely to be of

(A) of substantive value to the investigation of the arrestable offence, or

(B) relevant evidence in proceedings for the arrestable offence;

(b) but for section 83, the applicant would be or could have been authorised under the provision mentioned in subsection (1) to enter onto the premises specified in the application and to search the premises or a person found on the premises or to seize the material specified in the application; and

(c) other methods of obtaining the material,

(i) have been tried and failed, or

(ii) have not been tried because they were unlikely to succeed or would be likely to seriously prejudice the investigation; and

(d) there are reasonable grounds for believing that it is in the public interest that an order should be granted, having regard to -

(i) the benefit likely to accrue to the investigation; and

(ii) the circumstances under which a person in possession of the material holds it.

16. Subsection (4) says that a warrant issued under subsection (3) shall not authorise any entry, search or seizure other than such entry, search or seizure as, but for section 83, would be or could have been authorised under the provision mentioned in subsection (1). This means that where Part XII of the Interpretation and General Clauses Ordinance does not enlarge the existing powers of the ICAC. Its officers cannot enter premises, search them or seize anything in them for purposes other than those conferred by section 17 of the Prevention of Bribery Ordinance, section 10C(1)(c) of the Independent Commission Against Corruption Ordinance, and section 85(4) of the Interpretation and General Clauses Ordinance.

17. This is echoed in section 85(8)(b) which says that a person empowered by a warrant issued under sections 85 may, when in the premises that are the subject of the warrant, seize such material including journalistic material as may be found and as - but for section 83 - he would be or could have been authorised to take possession of under the provisions mentioned in subsection (1).

18. Subsection (5) says that the further conditions mentioned in subsection (3)(a)(ii) are:

"(a) that it is not practicable to communicate with any person entitled to grant entry to the premises to which the application relates;

(b) that while it might be practicable to communicate with the person entitled to grant entry to the premises, it is not practicable to communicate with any person entitled to grant access to the material;

(c) that service of notice of an application for an order under section 84(2) may seriously prejudice the investigation."

19. Subsection (6) says that subject to subsection (7) it shall be a term of any warrant issued under this section that a person who seizes journalistic material pursuant to the warrant shall seal the material upon seizure and shall hold the sealed material until otherwise authorised or required under section 87. And subsection (7) says that subsection (6) shall not apply where the judge is satisfied that there may be serious prejudice to the investigation if the applicant is not permitted to have immediate access to the material.

20. Section 86(1) provides for what a warrant issued under section 85 shall contain or - as the particular provision says - "specify." However, the provisions of section 86 have no application where the warrant is one to which section 85(7) applies, namely that the judge is satisfied that there may be serious prejudice to the investigation if the applicant is not permitted to have immediate access to the material.

21. Going on then to the Rules of the High Court, Order 118 of the High Court Rules governs proceedings under section 85 of the Interpretation and General Clauses Ordinance. Under Rule (4) the application for a warrant under section 85 is to be made ex parte by originating summons supported by affidavit. The affidavit shall state which of the grounds set out in section 85 is relied on, contain the evidence relied on in support of those grounds, and specify the name, rank, title and address of the officer who approved the making of the application.

22. Order 119 of the High Court Rules governs proceedings brought in the Court of First Instance of the High Court under Part III of the Prevention of Bribery Ordinance - the part dealing with powers of investigation - including applications for search warrants under section 17. Under Rule 4 an application is to be made ex parte on notice of motion in Form 109. Form 109 is specified in the schedule to the Rules. Except for an application made under section 14(d) of the Ordinance, it is to be supported by an affidavit. Order 119 does not specify what the affidavit should contain.

23. A great deal of the argument before me centred on the exceptional nature of a search warrant as being something that adversely affects a citizen's right to enjoy his property without interference. In Hong Kong in the Basic Law, Article 29, describes homes and other premises as being "inviolable." Article 6 also mandates the Hong Kong Special Autonomous Region to protect the right of private ownership of property " ...in accordance with the law," and Article 29 also positively prohibits any unlawful search or intrusion.

24. Mr Dykes argued that Article 29 must have some substantial legal content over and above the ordinary protection afforded by the common law, otherwise it would not have been included in the Basic Law.

25. I have to say that I do not agree with that proposition. The position, to my mind, is well summarised by Lord Hoffmann in Attorney General of Jamaica v Williams & Anor [1998] AC 351 where, at pages 354H to 355D. He said:

"The fundamental human right to protection against unlawful searches and seizures is part of the English common law. In Entick v Carrington the King's messengers entered the plaintiff's house and seized his papers under a warrant issued by the Secretary of State, a Government minister. Lord Camden CJ said at page 291:

'Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave. If he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law .... we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have.'"

26. Lord Hoffmann continued:

"From the common law this right has passed into the Fourth Amendment to the Constitution of the United States and into the constitutions of countries throughout the world. In Jamaica it appears in section 19(1) of the Constitution: 'Except with his own consent, no person shall be subject to the search of his person or his property or the entry by others on his premises.' But the right is not absolute. As Lord Camden CJ said, the search must be 'justified by law.' There are cases in which the power to enter and search without the consent of the owner is necessary for the proper functioning of a democratic society. Such powers have long existed at common law and under various statutes."

27. And in Inland Revenue Commissioners & Anor v Rossminster Limited & Ors [1980] AC 952, Lord Wilberforce said this, at page 1000 of the report at line A:

"There is no mystery about the word 'warrant': it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal."

28. By the use of the phrase "in accordance with law" in Article 6, the Basic Law recognises that there can - and indeed there must be - provisions that lawfully breach the provisions of Articles 6 and 29.

29. I turn now to the form of the warrants themselves. The warrants issued by Gall J on 25 November in their material parts read as follows.

30. I take the one under section 17 of the Prevention of Bribery Ordinance first. The case number is given and the title of the court, "The Court of First Instance of the High Court of the Hong Kong Special Administrative Region." There then follows the case citation:

"IN THE MATTER of an application by the Commissioner of the Independent Commission Against Corruption, Ex parte Apple Daily Limited, for a search warrant pursuant to section 17(1) of the Prevention of Bribery Ordinance Cap. 201.

BEFORE THE HONOURABLE MR JUSTICE GALL IN CHAMBERS

SEARCH WARRANT

TO ..."

31. And a number of people are named. They are described as being "investigating officers of the Independent Commission Against Corruption and any other investigating officers of that Commission." The recitals are the following - there are four of them.

"UPON the ex parte application of the Commissioner of the Independent Commission Against Corruption;

AND UPON hearing counsel for the Applicant;

AND UPON reading the affirmation of YU Chun-cheong Ricky affirmed on 24th day of November 1999;

AND UPON being satisfied that the conditions in section 17(1) have been met;

IT IS ORDERED THAT:

You are authorised to enter, by force if necessary, the specified premises or place namely:

8 Chun Ying Street, Tseung Kwan O Industrial Estate West, Tseung Kwan O, New Territories

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.

DATED this 25th day of November 1999"

32. And there is then the signature of Gall J and his title "Judge of the Court of First Instance" and the seal of the High Court has been affixed.

33. The warrant under section 85 of the Interpretation and General Clauses Ordinance again cites at the top the case number and the identification of the court and the title of the case.

"IN THE MATTER of an application by the Commissioner of the Independent Commission Against Corruption, Ex parte Apple Daily Limited, for a search warrant pursuant to section 85 of the Interpretation and General Clauses Ordinance.

BEFORE THE HONOURABLE MR JUSTICE GALL IN CHAMBERS

SEARCH WARRANT

TO ..."

34. Again the officers are named. They are described as investigating officers of the ICAC and the warrant is also addressed to any other investigating officers of the ICAC. The recitals are as follows:

"UPON the ex parte application the Commissioner of the Independent Commission Against Corruption;

AND UPON hearing Counsel for the Applicant;

AND UPON reading the affirmation of YU Chun-cheong Ricky affirmed on the 24th day of November 1999;

AND UPON BEING satisfied that the conditions in sections 84(3)(a), (3)(c), and (3)(d)(i), and sections 85(2), (5) and (7) have been met;

IT IS ORDERED THAT:

You are authorised to enter, by force if necessary, the specified premises or place namely: ..."

35. And the same address at Chun Ying Street is given.

"... 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 purposes of which this search warrant is issued.

DATED this 25th day of November 1999"

36. Again there is Gall J's signature above his title, "Judge of the Court of First Instance," and again the seal of the High Court. Clearly whoever drafted this warrant was not aware that it contains a strange tautology that a little gentle proof-reading would have taken out.

37. It is Mr Dykes' argument that although a warrant may be issued under section 17(1A) where the court is satisfied that there is in any premises or place anything that is or contains evidence of an offence under that ordinance - that is the Prevention of Bribery Ordinance - the authority under the warrant is limited by the section to entry and search only.

38. In this case the warrant issued under section 17 of the Prevention of Bribery Ordinance is, he says, bad on its face as it recites powers that do not exist, namely the power not only to enter and to search but also to seize and retain materials which are likely to be relevant to the investigation for the purposes for which the search warrant was issued. He says that the defect is not trivial. It is apt to mislead the person who is on the receiving end of the warrant to suppose that an officer's powers are greater than they really are.

39. He further argues that an officer's powers of seizure and detention are limited under section 10(c)(1)(c) of the Independent Commission Against Corruption Ordinance to materials that the officer has reason to believe to be or to contain evidence of any of the offences referred to in section 10 of that ordinance. He points out that materials that are relevant to an investigation are not the same thing as evidence of a relevant offence. Evidence does not mean useful materials. It means material which may be used as evidence in court proceedings, and that, he says, limits the scope of the powers.

40. He says that the purpose of a warrant is to explain to the person affected by one what his rights and obligations are, so that he may know where he stands. Mr Dykes, as I understand it, accepts that it is usually sufficient if the warrant recites the terms of the relevant statute. Here he prays in aid part of the speech of Lord Wilberforce in Rossminster at page 999H, where Lord Wilberforce said the following. It's a very short passage:

"I am unable therefore to escape the conclusion that adherence to the statutory formula is sufficient."

41. But he says, by implication, if the terms of the relevant statute are misstated - and in this respect they are as to the powers of search and seizure - that is clearly insufficient. He says, and says strongly, that I should not interpret a botched warrant charitably. A warrant affects privacy and property rights. Its authority derives from statute and I should insist that the warrant reflects the statute creating the power to issue it.

42. It is his argument that on its face the warrant should disclose: firstly, the name of the Applicant, secondly, the name of the judge or a magistrate who issued it; thirdly, the fact that an application for warrant had been made to him; fourthly, the fact that pursuant to Order 119, Rule 4, a notice of motion had issued together with an affidavit; fifthly, that the judge was satisfied that reasonable cause to believe that in the premises in question there was something which is or contained evidence of a relevant offence; and sixthly and lastly, that the judge authorised named officers to enter the premises for the purposes of searching the same.

43. He concludes his argument in relation to the section 17 warrant by saying that warrants that mislead are bad and an order granting one should be set aside. Here he prays in aid observations by Cons J in CHAN CHEUNG Yuk-lin v Acting Commissioner of ICAC [1978] HKLR 123.

44. In respect of the warrant issued under section 85 of the Interpretation and General Clauses Ordinance, this too, Mr Dykes says, mistates the officers' powers of seizure and detention. They too are limited by section 10C(1)(c) of the Independent Commission Against Corruption Ordinance to materials that he has reason to believe are to be or to contain evidence of the offences referred to in section 10.

45. He says that in order for the warrant to be lawful it should recite on its face by reference to the relevant provisions in Part XII and in terms, that firstly; the judge was satisfied that there were reasonable grounds for believing that an arrestable offence - named and within the jurisdiction of the ICAC - had been committed. That there was material on the premises consisting or including material known or suspected to be journalistic material. And that the material was likely to be relevant evidence in proceedings for the arrestable offence identified.

46. Secondly, that the judge was satisfied that other methods of obtaining the material had not been tried because they were either unlikely to succeed, or because they would be likely to have seriously prejudiced the investigation.

47. Thirdly, that the judge was satisfied that one of the matters at section 85(5) had been fulfilled.

48. And fourthly, that the provisions of section 85(6) respecting the sealing of material seized and holding it for the purposes of an application under section 87 did not apply because the judge was satisfied that there may be serious prejudice to the investigation if the ICAC was not permitted immediate access to the material.

49. Finally, Mr Dykes says that the warrant must identify the Applicant and the court issuing it.

50. Having given the matter a great deal of thought, I have to say that I do not agree with Mr Dykes. There is no provision in section 17 of the Prevention of Bribery Ordinance specifying the form a warrant issued under section 17A should take. It is true that in Part XII of the Interpretation and General Clauses Ordinance subsection 86(1) provides that, and I read the section:

"A warrant issued under section 85, other than a warrant to which subsection (7) of that section applies, shall -

(a) specify the name of the applicant and the court issuing the warrant

(b) contain a statement setting out -

(i) the terms of the warrant applying by virtue of subsection (6) of that section ..."

And subsection 85(6) says that:

"Subject to subsection (7), it shall be a term of any warrant issued under this section that a person who seizes journalistic material pursuant to the warrant shall seal the material upon seizure and shall hold the sealed material unless otherwise authorised or required under section 87."

And, this is continuing with with my reading of section 86:

(ii) the rights conferred under section 87 to apply within a specified period for the immediate return of journalistic material seized under the warrant and the consequences provided for in that section of not so applying."

51. But all this is applicable only to those warrants to which section 85(7) does not apply. And even in the case of a warrant to which section 86 applies the required particulars really boil down to the following: the name of the Applicant; the court issuing the warrant; that the holder of the warrant shall seal the material seized until otherwise authorised or required; and that the subject of the warrant may apply for the return of seized journalistic material within a specified period.

52. Further, neither Order 118 or Order 119 of the High Court Rules specify what should appear on the face of the warrant.

53. In the absence of a statutory form specifying the contents of a warrant, I must look to the common law to see what has been held to be the essential requirements of a valid search warrant.

54. In Rossminster - I have already given the citation - Lord Wilberforce at page 1000 A to B - this is just following the passage I have earlier quoted regarding the none-mystery of the word "warrant" - continued by saying this:

"The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied, but this is not a requirement and its absence does not go to validity. To complain of its absence in the present case when, as is admitted, no challenge can be made as to the satisfaction, in fact, of the judge, would be technical and indeed irrational. I can find no ground for holding these warrants invalid."

55. Lord Dilhorne said at page 1004, lines A to C:

"The Act does not prescribe that such a warrant must be in any particular form. It does not say that it must state that requirements for its issue have been complied with. If the warrants in this case had omitted their first paragraphs and, after stating to whom the warrants were addressed, had just stated that the persons named in it were authorised to enter and to search the premises named, I can see no ground on which their validity could have been successfully challenged.

These warrants, however, no doubt with the intention of showing that the requirements for their issue had been complied with, said that information on oath had been laid in accordance with the provisions of section 20C 'stating that there is reasonable ground for suspecting that an offence involving fraud' had been committed and that evidence of it was to be found on the premises named."

56. And Lord Dilhorne at page 1004G to page 1005G said the following:

"The issue of a warrant only authorises entry and search. It does not authorise seizure and removal of anything. The power to seize and remove is given by section 20C(3) which is in the following terms."

57. He then set out the terms:

"Anyone reading the warrants issued in this case might reasonably conclude that the warrants themselves authorised seizure and removal. If that were the case then it might lend some force to the contention that, then it might lend some force to the contention that the warrant should give some indication of the nature of the things which might be seized and removed. Strictly I see no need for the warrant to refer at all to the power to seize and remove, but if it is thought desirable to do so, then it should be stated that the power of seizure and removal is exercisable by virtue of this subsection.

The respondents contend that the warrants should have given some indication of what was being searched for. To be valid, they say, the warrants should have specified or sufficiently identified the nature of the offence or offences suspected. They say that the information contained in the warrants was not specific enough to enable the officers of the board, the owners of the documents and the respondents to know what the officers were authorised to search for, seize and remove or to enable a court to determine whether the officers had had belief and reasonable cause to believe that a document might be required as evidence.

These contentions found favour in the Court of Appeal, Lord Denning MR saying, that to be valid, a warrant must specify the offence suspected and that 'the seizure is limited to those things authorised by the warrant.' Brown L.J. held that a warrant must specify at least the general nature of the offence or offences suspected and Goff L.J., that to be valid, it must state on of its face 'that it relates to all or to some one or more' of the criminal offences to which a tax fraud could given rise.

My Lords, I do not find myself able to agree. The section does not require the warrant to state what criminal offence or offences are suspected. Officers of the board when making their searches and deciding what to seize, act in accordance with the instructions they have received and do not rely on the terms of the warrant for guidance. The warrant does not authorise seizure or say what may be seized. It is subsection (3) that does that. Tax frauds take many forms and lead to a variety of criminal charges. If the Court of Appeal is right, it means that before any evidence secured by the search has been considered and when the circuit judge has only to be satisfied that there is reasonable ground for suspecting the commission of 'an' offence involving a tax fraud, for the warrant and the section then authorises him to issue to be valid, it must specify the offence or offences suspected.

My Lords, I do not think that these contentions of the respondents and the conclusions of the Court of Appeal on this are right. A warrant issued under the section will be invalid if the provisions of the section are not complied with or if there is some rule of law independent of the section that requires the particular offence or offences to be stated. These warrants did comply with the section and I know of no rule of law that requires that."

58. Lord Diplock, said at page 1008, lines C to E, the following under the heading, "The Validity of the Warrant":

"What is to be disclosed upon the face of the search warrant depends upon the true construction of the statute. The construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man's house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon as authorising the acts are ambiguous or obscure, the construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law.

But judges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be overzealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect."

59. And at page 1010, lines B to H, Lord Diplock said this, again referring to the warrant:

"Ought it to disclose more in order to be a valid warrant under the section? It was submitted on behalf of the respondents that it was defective in three respects. First, it was said, it ought to identify the suspected offender, secondly, it ought to specify which one or more of, the six or more species of offences which fall within genus 'an offence involving any form of fraud in connection with, or in relation to, tax,' the suspect is suspected of having committed, and thirdly, it ought to state the date of any offences of which he is suspected.

My Lords, if a subsection does indeed require that any of this additional information should be disclosed upon the face of the warrant, this must be by necessary implication only. There is no express requirement; and for my part I cannot see that any such implication is justified. The information would not protect the innocent; it might well assist the guilty to destroy or remove beyond the jurisdiction of the court of trial the documentary evidence of their tax frauds.

Tax frauds generally involve the use of confederates, whether ignorant of or parties to the fraud. To identify a suspect where the search extends to premises that are not in his personal occupation is to alert him to the suspicions of the revenue and if they are well founded, it may give him an opportunity of covering his tracks; while if the suspicions ultimately turn out to be groundless, his reputation with those whose premises have been searched will be unnecessarily besmirched. It is to be observed that the form of the warrant at common law to search premises for stolen goods does not state who is alleged to have been the thief. As regards more detailed specification in the warrant of the offence of which the circuit judge was satisfied that there were reasonable grounds for suspecting had been committed this would not help the person whose premises were searched to know what documents were liable to be seized, since the right of seizure under subsection (3) is not limited to documents that may be required as evidence in proceedings for that offence alone but, on the true construction of the subsection, extends to documents that may be required as evidence of proceedings for any other offence that falls within the genus of offences 'involving any kind of fraud in connection with, or in relation to, tax.' This, as it seems to me, is the plain meaning of the words 'such an offence as is mentioned in subsection (1) above'. Nor do I find it surprising that Parliament should grant a power of search under the warrant wider in its scope than those things which it was already suspected will be found on the premises when the warrant was issued. Even at common law as it had developed by the time the Act was passed a warrant to search premises for stolen goods particularised in the warrant justified seizure of other goods found upon the premises at the time the warrant was executed if there were reasonable grounds for believing that those other goods were stolen: Chic Fashions (West Wales) Limited v Jones [1968] 2Q.B. 299.

And the citation is given.

60. Lord Scarman said, at page 1023D to page 1024C, the following:

"The only warrant required by statute is one authorising entry and search. Clearly it must specify the premises to be entered and searched. But that is the limit of the authority given by the warrant. The judge's warrant is not the authority for seizing and removing things found on the premises. That power is conferred by the statute, i.e., subsection (3). As the Divisional Court well said, the warrant is only the key of the door, it does not confer the power to seize and remove, although, until and unless it opens the door, the power to seize and remove does not arise.

Each of the four warrants which the judge issued did in terms authorise the officers it named to enter and search the premises which it identified. Each warrant also made clear that it was issued by the judge pursuant to section 20C of the Taxes Management Act 1970. The warrants therefore contained sufficient information to enable an occupier of premises to know that they were issued under subsection (1) of the section and to identify the premises to be searched.

If the warrant to be valid must also contain particulars of the offences suspected, I would have expected to find this requirement expressly stated in, or necessarily to be implied from the language of, subsection (3) which confers the power to seize and remove things of possible evidential value. But in my judgment, subsection (3) says nothing of the sort. An officer can enter only if armed with a warrant issued under subsection (1), i.e. a warrant authorising entry and search. Having entered, he may seize and remove anything which he has reasonable cause to believe may be required as evidence '.... in respect of such an offence as is mentioned in subsection (1) above.' I construe these words as a reference to the kind of offence there mentioned and not limited to the particular offences suspected, i.e. to any offence involving any form of fraud in connection with or in relation to tax. Such a construction is, as my noble and learned friend, Lord Diplock, points out, consistent with the power of seizure of goods other than those mentioned in the warrant conferred by a common law warrant to search premises for stolen goods."

61. And he too refers to Chic Fashions:

"There being nothing in the section to require the warrant to give particulars of the offences suspected, does the general law import the requirement? For the reasons given by my noble and learned friends I think not. Indeed, I would think it a wrong approach to modern legislation to reason by analogy from common law powers.

The relevance of Entick v Carrington is that it recognises that, where the justification for what would otherwise be a trespass is a statute, the judge must look to the statute. Today that means looking to the legislative purpose of the enactment as well as the words and context of the specific provision. If that approach be adopted, there are strong grounds for holding that the statute does not require the revenue, before it has decided to take proceedings and when it is still at the investigatory stage of the case, to reveal to a possible wrongdoer its suspicions or the extent of its knowledge.

62. In Williams which I have already cited, Lord Hoffmann, at page 364C to page 365A had the following to say:

"Any inquiry into the formal validity of the warrant must start from the undoubted fact that the section does not prescribe any form at all. The language of the warrant must be such as plainly to authorise the acts on which complaint is made, but any further requirements as to form can only arise by implication." Professor Feldman, in his book, The Law Relating to Entry, Search and Seizure says that a warrant fulfils three main functions:

'First, the requirement for the officer to apply for a warrant in theory gives another person, usually an independent judicial officer, a chance to check on the need for a search... Second, the warrant allows the occupier of the premises to be searched to satisfy himself that the officers who arrive and demand to be admitted are acting lawfully. This cuts down the risk of misunderstandings, violence and the criminal charges which often follow and makes the job of the police easier. Third, it should indicate the limits to the powers of the officers, circumscribing their discretion and clarifying their rights.'

Their Lordships have considered the first of these purposes under the heading 'The issue of the warrants' and the third as a question of construction. This leaves the second. Does the need for the occupier to be able to satisfy himself that the search is lawful give rise to any implied requirements about what the warrant should say? In Rossminster Lord Wilberforce said the person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. Lord Diplock said: 'Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant ... ought to state upon its face the statutory authority under which it has been issued.' Their Lordships agree that it is highly desirable for the warrant to contain an express statement of the statutory authority under which it was issued. If it does not, the householder might reasonably think that it was not based upon any authority and resist entry. But this does not mean that in a case in which the warrant was in fact issued under proper authority and there was no resistance to entry, the warrant should be treated as invalid, particularly when as Forte JA"

63. I believe him to be a Justice of Appeal of the Jamaican Court of Appeal.

"said it is clear from the terms of the warrant that it was issued under section 203."

64. Lord Hoffman concluded his remarks, again at page 365E to H by saying the following:

"Although the courts may sometimes feel frustrated by their inability to go behind the curtain of a recital that the justice was duly satisfied and to examine the substance of whether reasonable grounds for suspicion existed (a frustration articulated by Lord Scarman in Rossminster) 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 applicants should have 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 the invalidity of the entire search. Section 19(1) of the Constitution was intended to serve a higher purpose than to promote accuracy in drafting in the revenue protection division."

65. There is thus ample authority that unless particulars are required by statute or by necessary implication, all a warrant need to state on its face in order to be a valid warrant is a recital of the power under which it is issued and that it identifies the court issuing it. And in deciding whether any particulars over and above that are required by necessary implication, the court considering the matter should approach the matter constructively and practically, and not approach it destructively, in the sense of seeking to find reasons to justify the invalidity of the warrant.

66. If the warrant contains references to other matters, it is desirable that they be accurately stated, but if they are not, that does not affect its validity. This was recognised by Lord Hoffmann in Williams at page 365C to E, where he said:

"As for the references to a personal search instruments and articles, their Lordships do not see how it is possible to imply some formal requirement in the language of the warrant which the inclusion of these infelicities would infringe. Of course, if there had actually been a personal search, their Lordships have no doubt that it would not have been authorised by the section: See King v R. But as no such search took place, the fact that the warrant wrongly purported to authorise one is in their Lordships' view irrelevant. Likewise, as their Lordships have already said, the taking of property other than books and documents could not be justified by the word 'articles' in the warrant, because this went beyond the statutory power. But this does not mean that the warrant was formally invalid."

67. The fact that both warrants misstate the nature of the material sought, namely "... material likely to be relevant to the investigation for which the search warrant was issued," rather than following the words of section 17A, "... material which is or contains evidence of an offence under the Prevention of Bribery Ordinance" is to my mind immaterial. Both warrants would have been sufficient if they had not recited the words Mr Dykes complains of. These words are no more than mere surplusage.

68. The only recital that necessary implication dictates should be in a section 85 warrant - where it is applicable - is a reference to the fact that the judge has been satisfied that the provisions of section 86 and section 87 of Part XII of the Interpretation and General Clauses Ordinance should not apply. However, in this case this has been done in the case of the section 85 Interpretation and General Clauses Ordinance warrant, because the fourth recital is that Gall J was satisfied, among other things, that the condition in section 85(7) had been met. To my mind it is sufficient if the recital is done by reference to section numbers and not a repeat of the very words of the subsection itself.

69. For these reasons I decline to exercise the power given to me by Order 32, Rule 6 of the High Court Rules to set aside the two search warrants issued by Gall J on 25 November 1999.

Representation:

Mr Philip Dykes, SC, and Mr Peter Duncan instructed by M/s Deacons Graham & James for the Applicant

Mr Andrew Bruce, SC, SADPP and Mr Ian McWalters, SADPP, for the Respondent

Remarks: